A Rhetorician's Practical Wisdom

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 66 No. 2

A Rhetorician's Practical Wisdom

Linda L. Berger

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A Rhetorician's Practical Wisdom

by Linda L. Berger^*

"We tell them what we have learned about the world by trying to prevent and resolve disputes through rhetoric."¹

Introduction

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery.² During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a life well lived within the law could be found in the phrase practical wisdom and for me, that phrase was the mystery. It's not that there were no definitions: instead, they were too simple or too many, too diverse or too abstract. Where were the living stories of

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practical wisdom at work within the law?³ Where were the concrete images of the practically wise?⁴ I understood that practical wisdom grew out of practice and grew into action. But when I attempted to seize upon it for study and description, I chased an elusion. For this Symposium honoring Jack's scholarship, I decided to see again if I could catch a glimpse.

What is Practical Wisdom?

Although substituting "reason" for "wisdom," here is a concise beginning: "Practical reason is the general human capacity for resolving, through reflection, the question of what one is to do."⁵ This kind of wisdom is practical because it grows out of the need to act and because it results in action. And it is wisdom because it resolves the question and because it does so through reflection. Practical reason asks "what one ought to do, or what it would be best to do" and it does so "from a distinctively first-personal point of view, one that is defined in terms of a practical predicament in which [we] find ourselves."⁶ In contrast with theoretical reason, practical reason "is concerned not with the truth of propositions but with the desirability or value of actions. . . . Theoretical reflection about what one ought to believe produces changes in one's overall set of beliefs, whereas practical reason gives rise to action."⁷

As with so many things, Aristotle classified practical wisdom. First, he divided the virtues into two types, moral virtue and intellectual virtue.⁸ Moral virtue is concerned with feelings, desires, choices, and decisions.⁹ "Moral virtue is a state of character concerned with choice"¹⁰ and is learned through habit and repetition.¹¹ Intellectual virtue is developed

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not only through practice but also requires instruction.¹² Through teaching and instruction, intellectual virtue develops as a type of wisdom.¹³

Within the category of intellectual virtue, Aristotle divided once again.¹⁴ Here, he distinguished wisdom from practical wisdom.¹⁵ While "wisdom" combined scientific knowledge and intuitive thought, "practical wisdom . . . is concerned with things human and things about which it is possible to deliberate."¹⁶ The person who is practically wise not only makes wise decisions, but recognizes the best ways in which to act to fulfill the desired outcome.¹⁷

Practical wisdom thus fills in the gaps left by theoretical wisdom. In Book VI of the Nicomachean Ethics, Aristotle writes,

This is why we say Anaxagoras, Thales, and men like them have philosophic but not practical wisdom, when we see them ignorant of what is to their own advantage, and why we say that they know things that are remarkable, admirable, difficult, and divine, but useless; viz. because it is not human goods that they seek.¹⁸

For Aristotle, practical wisdom encompassed practical knowledge about living well.¹⁹ According to Aristotle,

Now it is thought to be a mark of a man of practical wisdom to be able to deliberate well about what is good and expedient for himself, not in some particular respect, e.g. about what sorts of thing conduce to health or to strength, but about what sorts of thing conduce to the good life in general.²⁰

So the possessor of practical wisdom is able not only to solve concrete and specific human problems but also to do so within the larger context of "the good life in general."

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Reading Justice Breyer in the District of Columbia

My second reading of Justice Breyer's dissent in District of Columbia v. Heller²¹ began as an effort to capture an example of practical wisdom. The dissent seemed written especially for a specific audience faced with a concrete problem at a particular time. It appeared to be an implicit guidebook for the lower court judges who would find little to help them in the majority's decision, but who would nonetheless be required to exercise judgment to make decisions in the real world.

From the outset, my instinct that Justice Breyer's dissent might be an example of practical wisdom did not depend on Justice Breyer's own explicit conclusion that his opinion is about the "practicalities, the statute's rationale, the problems that called it into being, its relation to those objectives-in a word, the details."²² Nor did it rely on his argument that the decisions of state cases "provide some comfort regarding the practical wisdom of following [his preferred] approach."²³

Unlike Justice Breyer, who disputes the claim that his approach is "judge-empowering,"²⁴ this assessment will conclude that it is. If Justice Breyer's opinion is judge-empowering, however, it is because he appears to be empowering judges (and perhaps state and city lawmakers) at decision-making levels below the United States Supreme Court.

Although he refuses to accept the characterization that his approach empowers judges, Justice Breyer acknowledges that his approach "requires judgment."²⁵ He claims that "the very nature of the approach-requiring careful identification of the relevant interests and evaluating the law's effect upon them-limits the judge's choices."²⁶ Moreover, he claims, "the method's necessary transparency lays bare the judge's reasoning for all to see and to criticize."²⁷ The task of determining how the Second Amendment should apply to modern-day circumstances requires judgment, Justice Breyer writes, "judicial judgment exercised within a framework for constitutional analysis that guides that

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judgment and which makes its exercise transparent."²⁸ That, he asserts, is preferable to "inconclusive historical research" combined with "judicial ipse dixit."²⁹

From a rhetorical perspective, Justice Breyer begins the dissent with an approach designed to move the audience from agreement on "easy" starting points to agreement on the conclusion.³⁰ He lists four points upon which all can agree, and of those four, moves at once to the last, the practical one that gets you to the somewhere else he apparently wants to go, the premise that the Second Amendment right is not absolute.³¹ He quickly justifies that premise by juxtaposing it with the proposition that he implies is the majority's unprovable claim-"that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars."³²

Justice Breyer delves into the historical evidence that preoccupied Justices Scalia and Stevens in their majority and dissenting opinions,³³ but concludes that the historical proof is only the beginning of the constitutional question.³⁴ He moves to the "process-based question: How is a court to determine whether a particular firearm regulation . . . is consistent with the Second Amendment?"³⁵

And here lies the heart of any claim that Justice Breyer's opinion-if it does not actually exemplify practical wisdom-may empower others to exercise it. How should a trial court judge decide a lawsuit challenging a gun regulation on Second Amendment grounds after Heller? This question-not the question of what the Second Amendment means-is the question that preoccupies Justice Breyer, both explicitly and implicitly.

Justice Breyer stakes the first claim to this opinion being an exemplar of practical wisdom. Posing the question of what constitutional standard the court should use, a question that was brushed aside by the majority, Justice Breyer states, and seeks to persuade us, that "[t]he question

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matters.³⁶ Responding to the majority's argument that the D.C. law is unconstitutional under any standard, Justice Breyer asks the practical question that would occur to any lower court judge trying to apply the correct framework: "How could that be?"³⁷

From there, he sets forth a process for judgment.³⁸ Any state gun control regulation, he argues, would pass the rational basis standard because it would bear a rational relationship to a legitimate objective of seeking to prevent gun-related accidents.³⁹ On the other hand, he continues, no strict scrutiny standard would work because every gun control regulation seeks to advance a compelling state interest, a primary concern for the safety and lives of citizens.⁴⁰ As a result, as a practical matter, Justice Breyer concludes, "any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry."⁴¹

If that's the case, Justice Breyer argues, the Court should go ahead and say so, that is, the Court should explicitly adopt an interest-balancing test.⁴² His support for this argument is experience. Not the experience of the Supreme Court, which has little prior experience making decisions on this subject.⁴³ Instead, he writes, the Court should attend to the experience of the state courts, the "[c]ourts that do have experience in these matters."⁴⁴ These courts, he contended, "have uniformly taken an approach that treats empirically based legislative judgment with a degree of deference."⁴⁵

Moving back to his role of providing guidance for lower...