The Patient Scholar

Objectives and hallmarks of democracy: INS v. Chadha

“Convenience and efficiency are not the primary objectives - or the hallmarks - of democratic government…”

Chief Justice Berger, INS v. Chadha, 462 U.S. 919, 944.

Lessig: never again

What is the role of information? To whom does information belong? Whose right is it to control information or knowledge that I create?

These are questions that Lawrence Lessig has struggled with for some time. His post of 15 March 2005 indicates the extent to which he will go to ensure his control over the information he creates. This is not to keep the information bottled up, but rather to guarantee that the information remain freely available. Professor Lessig says that he will never again submit to publication agreements in which he is forced to surrender all rights to his work.

As an academic kinda-wannabe, the question of who controls the knowledge I create is of particular importance. I wish, of course, for some benefit to accrue to me. I don’t think this is unusual, nor do I think it’s wrong. But if I am creating knowledge for the exclusive purpose of acquiring some personal benefit, then I think I am missing the mark. The creation of knowledge is a social enterprise, one that cannot occur in isolation. Even the most brilliant of luminaries relies in some measure upon current or past work, either as a foundation or as something to challenge in search of a better way of understanding. A social enterprise is of little value if its fruits are controlled by the very few.

The purpose of knowledge creation is to better the human condition, or so I believe. Intellectual exercises are interesting, but ultimately their worth is measured by their effect on humanity. I agree with this statement by Nelson and Sklar:

…[S]cholarship should be problem-oriented and critical of existing institutions…When you question the foundations of institutions and go to the roots of things, the implications for rational change become clear.

…[T]he present need is for a scientific approach that is firmly based upon humanistic foundations. (Toward a Humanistic Science of Politics: Essays in Honor of Francis Dunham Wormuth, p. 3)

Scholarship, science, knowledge creation are for the express purpose of bettering the human condition, of asserting human dignity and maintaining it. The control of scholarship, the assertion of “exclusive rights” are, I think, destructive of these ends. Perhaps I’ll change my mind when trying to get tenure. But for now, that’s what I believe. I congratulate Professor Lessig.

Site redesign

The old design was too busy, and too heavy-handed. While I am no designer, I do know that I tend to like simple lines better.

The old content isn’t gone; it’s just hiding right now, but will reappear soon.

Frequently asked questions for Utah administrative rulemaking agencies

On the off chance that any of my rulemaking colleagues have found this blog, I am reporting the existence of a frequently asked questions list (FAQ) for rulewriters.

The FAQ can be found here:

Frequently Asked Questions (FAQs) for Rulewriting Agencies

Much of the information rulewriters need can be found here. Need to know how to save a rule in RTF? It’s in the FAQ. Need to know if you have to use Microsith Word to prepare ruletext? That’s in the FAQ too.

It’s a great resource, but certainly not perfect. Any suggestions for an addition to the FAQ should be forwarded to Ken Hansen; Ken’s (relatively obfuscated to frustrate email address harvesting bots) email address is: khansen at (utah dot gov).

Appointed or elected?

From Max Weber: Essays in Sociology (trans. by Gerth and Mills. Oxford University Press, 1958.)

“Once firmly organized, the parties can turn a formally free election into the mere acclamation of a candidate designated by the party chief.”

I cannot help but think of the 2004 gubernatorial election in Utah where a popular candidate, faithful to the party, was turned out on her ear by a “firmly organized,” patriarchal party.

To vote or not to vote

In class we have just finished discussing the Declaration of Independence. In this seminal declaration of not only independence, but American political philosophy, Jefferson makes several bold assertions, perhaps the most important of which is that governments derive their just powers from the consent of the governed.

This of course raises the question of the source of government’s unjust powers, which I will leave for another day. I wish to discuss the derivation of government’s just powers.

My class is comprised of mostly twentysomething students. Our discussion of the Declaration, and of this remarkable statement regarding government’s power, did not move them as much as I would have thought. You see, when I read Jefferson, I am moved; there are stirrings within my heart as the power of his language and his ideas resonate within me. I believe Jefferson; I believe that governments are instituted among men to secure the blessings of liberty; I believe that government’s purpose, its just purpose, is to facilitate the securing of inalienable rights, not just for those in government, but for all citizens of the nation—or the state, county, or city for that matter.

But I don’t detect the same stirring in my students. I don’t see them get excited about Jefferson, or about Madison, or about any of the founders. And I think I know why. I think there are two reasons.

First, there has not been one candidate for office in this state (for statewide office, or for congressional district) or one candidate for the presidency that has been capable of showing by action a commitment to the principles of the Declaration. There is much lip service, but no service.

Do you remember Jefferson’s closing words? He writes:

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Where is the demonstration of pledging lives, fortunes, or sacred honor? Kerry’s and Bush’s fortunes seem pledged to the acquisition of an office, but Jefferson pledged his (or so we assume, and must assume) to the support of the Declaration and the principles enunciated therein. In my more cynical moments, I say there is no honor in politics. And so my students observe those in office, or those running for office, and they say to themselves “It is not about the people, it is not about inalienable rights, it is about the naked and consuming quest for power.”

Second, I think that the youth of today have been taught not to question the actions of those in authority to closely; related to that, I think they have been taught that government is too powerful to change, at least by individuals. As I outlined to them the most remarkable of the rights that Jefferson claims, the right to revolution, I could not encourage one person to suggest that this was either a good or a bad thing. The usual response to it was “Oh, the government would never let you get away with that.” Which of course is the point, though they did not see it, or perhaps wished not to see it. If government refuses to allow the right of revolution, the right to change the system, then the government has broken faith with the principles of the Declaration.

For these two reasons, I suspect, my twentysomethings—and even some of the more mature members of my class—wonder at the utility of voting, wonder at the value of participating. But how can I blame them? What choice is before them? And so I must concede the existence of a right not to vote, though I do so with great reluctance.

Grappling with the qualitative approach

[An excerpt of a message I sent to my committee chair.]

Let me share with you some thoughts about the comp. question I’m writing for Peter. I’m supposed to compare and contrast positivism, hermeneuticism, and postmodernism. You’ll recall our conversation where I talked about the difficulty I was having with the quantitative-qualitative distinction, and whether qualitative research could be construed as empirical. I think I’ve got that now; empirical research relies on an epistemology of experience as the ground of knowledge. As you pointed out, qualitative research is certainly empirical in the sense that our ground is still that which is experienced (not necessarily measured, at least in the quantitative sense, but experienced nonetheless). I would hesitate to identify qualitative research as postivist research, though there are some who do, because there is no attempt, either explicit or implicit, to derive, or prove, some covering law, or so it seems to me. Rather, the attempt is more to explain an (isolated) event. Maybe in the case of grounded theory research we’re trying to build theory, but it would be theory in the sense of Merton’s middle-range theories (though of course, Merton holds out the hope for covering laws eventually).

As I look at hermeneuticism and postmodernism, it seems to me that we have two projects that are more friendly to qualitative research, but go beyond that. In hermeneuticism, where we treat society, or events in society, as a text-analogue to interpret, the coherence of the interpretation is contigent upon its context. In other words, an interpretation of an event can only be coherent when viewed and interpreted within the context of the society in which it occurs. In order to do that, it seems to me that the researcher must give weight to beliefs (among other things) that exist in a society which are “real” to that society’s members in (possibly) some metaphysical sense, but which would be rejected by a positivist researcher as being immaterial. A hermeneuticist would engage in empirical research, but not necessarily. The hermeutic project allows for empirical and non-empirical research. But it can’t be positivist.

Postmodernism also clearly exlcludes a positivist approach in two ways. First, it does so by denying that anything like complete truth can be obtained (it doesn’t deny its possible existence, just that we can’t get to it). Second it does so by stating that what we observe does not possess a reality independent of the observer. Every social interaction we observe is in fact a construct of society. In Foucaultian terms, the interaction is the result of the expression of power, which power is used to *create* “truth”. Lyotard calls it a productive power, and ties it to the use of language.

This is what I’m coming up with so far. Do you think I have characterized these things correctly? I should probably send the same type of message to Peter, but I would really like to get your feedback too.

A little more focus

[I found this while cleaning out my user directory.]

Peri has suggested an approach to the proposal in which I use three different theoretical approaches to assess the question of why the LDS Church act politically. Why use three different approaches to explanation for the same question?

Therein lies the answer to my question about the thesis of the proposal. My study is not a normative one in which I assess whether or not the Church should act politically. That is not my question. My question is why does the Church act politically. This is an empirical question; not a question then about what ought to be (normative theory), but a question of what is (description), why it is (explanation), and whether we can tell if it will be (prediction). The role of empirical theory is to construct, or find, a theoretical framework that will answer these questions.

I had originally thought that I might tease out a political philosophy for the church, but the more I think about it, the more I think that political philosophy is the wrong term. I think a better term is world view, something akin to Peter Berger’s sacred canopy. Michael Leming calls Berger’s sacred canopy humanity’s use of religion [as] the audacious attempt to conceive of the entire universe as being humanly significant. At a more fundamental and, importantly, testable level the canopy is a method of giving sense to the world and identifying the individual’s (or the group’s, in the case of the Church) place and role in it.

So, the proposal becomes a competition of sorts in which each theoretical framework is tested by asking each to describe Church political action, explain Church political action, and predict Church political action. And thus, when Peri is suggesting to me that I need to create ideal types from two perspectives, rational choice and Foucaultian, she is in fact asking me to create expected descriptions and explanations of Church activity based upon these perspectives, and then compare these creations to the historical record.

Court rules Patriot Act section 505 unconstitutional

Instinctively I have felt for some time that provisions of the Patriot Act were unconstitutional. I, as well as many others, feel particularly gratified by the decision of Judge Victor Marrero in the case of Doe and ACLU v. Ashcroft et al..

Judge Marrero held that the FBI’s authority to issue National Security Letters to obtain records from internet service providers was too broad, and violated the 4th Amendment’s prohibition against unreasonable search and seizure. He also held that the expansive gag power of section 505 constituted and unreasonable exercise of prior restraint on speech in violation of the 1st Amendment. (For a fuller discussion of the case, see In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional at the ACLU’s website.)

While deeply important from a constitutional perspective, my interest in the decision is pedagogical. In my work as an adjunct Salt Lake Community College, I teach a course in U.S. government and politics. Often, my students are constitutionally challenged. As we begin working our way through the document, particularly through the Bill of Rights, the rumors they can dimly recall about the Patriot Act—or any other government action—suddenly come to the fore. I hear cries of “How can they do that? That’s unconstitutional!”

This creates an excellent opportunity to discuss checks and balances, and the nature of the judiciary as a reactive branch of government. While one check of the judiciary on the Congress is the ability to declare Congressional Acts unconstitutional, the courts can do this only in the situation of a case or controversy. The judiciary can’t go looking for an opportunity to pass on the constitutionality legislative or executive action; it must wait for a case to come to it.

This suggestion of the judiciary being a reactive branch occasionally does not sit well with my students. I recall one in particular who thought that the Supreme Court should evaluate the constitutionality of every Congressional act, prior the acts’ becoming law.

A sigh of relief

Well, I still have this feeling of impending doom. Comprehensive exams can do that to you. But, there is a certain relief today, and I sigh and breathe a bit easier now.

I submitted my “petition to take my comprehensive exams” today. I had the great good fortune to find all of my committee members (from political science) on campus, and the great good fortune to have all of them sign the petition. That was the last administrative hurdle that I needed to clear before the exams.

Well, the sighing is done now. Back to work; I still need to become familiar with the entire corpus of political science research and commentary. That’s what comps are all about, right?