Constitutional Faith by Levinson Sanford

Author:Levinson, Sanford
Language: eng
Format: epub
ISBN: 9781400839872
Publisher: Princeton University Press

GOOD WORKS OR INNER FAITH AS INDICIA OF ATTACHMENT

Does “attachment” refer simply to manifested behavior or instead to an internal state of mind and mental dispositions? “On its face,” said Justice Murphy, “the statutory criterion is not attachment to the Constitution, but behavior for a period of five years as a man attached to its principles. . . . Since the normal connotation of behavior is conduct,” the majority finds “something to be said for the proposition” that the statute “created a purely objective qualification, limiting inquiry to an applicant’s previous conduct.”14 It was therefore altogether relevant that Schneiderman’s conduct before 1927 had “been law abiding in all respects.”15 Indeed, Justice Murphy points out in a footnote that Congress had later changed the requirement from one of behavior to a demonstration of an applicant’s “good moral character, attached to the principles of the Constitution.” Quoting an important representative’s comment that the new Act involved substantive changes “with a view to preventing persons who have no real attachment to the United States from enjoying the high privilege of American nationality,” Justice Murphy added that “[t]his remark suggests that the change from ‘behaved as a man attached’ to ‘has been and still is a person attached’ was a change in meaning.”16

The relationship between observed behavior and inference of internal state of mind is, of course, complex. Justice Murphy seems to affirm that behavior congruent with legal command is evidence of a proper disposition, i.e. attachment to the law. By persons’ works shall you know them, either because works are in fact the best evidence of inner commitment or because one cannot in fact delve beneath the surface of behavior into the “minds” of the persons being assessed.

Moreover, as pointed out in the consideration in the last chapter of the West Virginia flag-salute case, West Virginia Board of Education v. Barnette, there is a distinct part of our constitutional tradition that relies on behavior alone as the province of the (liberal) state. Indeed, Barnette was decided the same year as Schneiderman, and Justice Jackson wrote an opinion that is almost certainly the high-water mark of what I have termed liberal behaviorism—the emphasis on action alone to the exclusion of legitimate interest in the thought of the citizenry. His emphasis on our system’s commitment to a “fixed star” of nonorthodoxy in politics was fresh in the minds of every member of the Court.

But “behaviorism” is scarcely an uncontroversial proposition, whether one is talking psychology or politics. What counts as a human action—that is, as the “behavior” that one is assessing—can present great difficulties. Indeed, the very description of the action, many contemporary theorists argue, requires an interpretation that includes the aims and purposes of the actor, so that it is simply mistaken to believe that “behavioral” description even makes sense when referring to human beings (as opposed, for example, to rocks). Consider how one would differentiate the “behavior” of a surgeon and a peculiarly skillful mutilator. A focus on externally observable hand movements of the knife would scarcely be adequate.

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