Joel Jacobsen

The Wikipedia entry says that the term "intellectual dishonesty" is just "an obfuscatory way to say 'you're lying.'"  But the word "dishonesty" doesn't exactly beat around the bush.   And, anyway, an obfuscatory insult is pretty self-defeating, isn't it? - except as a laugh line in a W.C. Fields movie.

Anil Dash's tossed-off definition gets closer to the mark: "That's not people who are lying, but rather people who are deliberately saying something they either don't believe or know to be false, or that they've positioned so that audiences will draw an irrational conclusion."

But I think a more precise definition would leave the speaker's subjective beliefs out of it.  When Edward Lazarus, writing over at FindLaw, caught George Will waxing indignant on both sides of an issue (or, as he acknowledged at the bottom of the column, reported that others had caught him) he captured the essence of intellectual dishonesty: the disregard of truth, consistency, and every other external sign of integrity. 

Lazarus explained why he thought intellectual honesty was especially important in the law: because the power of the courts rests ultimately on a belief that judicial decisions are more than expressions of power.  That they are, instead, "principled attempts to discern the proper meaning of the law. And the idea that there is a 'proper meaning' in the first place, in turn presumes a universe that recognizes a genuine ability to choose better arguments over weaker ones, regardless of what one thinks of the results the arguments lead us to."

That, I think, is a pretty good definition of of intellectual honesty.  Wikipedia's cynical definition of "intellectual dishonesty" as a mere insult, devoid of intrinsic meaning, takes irony to a deep level.

In this spring's Davis decision, Justice Scalia wrote in response to Justice Thomas's eminently sensible concurrence (which proposed that the Court settle on a rule that might produce predictable results):

But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions. In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it.

Now, it's a curious fact that judges frequently use sexual metaphors to describe their own works: seminal opinions are those with lots of progeny.  But what, exactly, does it mean to say that English cases are "the progenitors of the Confrontation Clause"? - no, wait, on second thought, I don't want to have it explained.  Ick.

Anyway, given that the first English police force didn't come into existence until a half-century after the Declaration of Independence, Scalia is on safe ground with the last quoted sentence.  It's very likely that no case decided prior to the formation of modern police forces explicitly held that members of such a force could testify  in court. 

Oh, well, perhaps Scalia was indulging in his famous sarcasm.  But his sarcasm usually has a point, and there's no larger point to this one.  If he wasn't being serious, the comment wasn't sarcastic but simply facetious, a little silliness indulged in for its own sake. 

So, okay, probably not.  He seems to have been serious.  So maybe he meant "policeman" in a generic sense, to mean watchman, constable or beadle.  But if there are no recorded cases of any such official reading his notes in court, it may only be that so many were illiterate.  That, and the shorthand writers didn't bother recording such details.  Even if they did, the edited versions of the judge's speeches that eventually made their way into the law books would be stripped of just such trivia - unless, of course, the editors considered the matter as important as Scalia himself thinks it.

But why would they have thought it important?  Procedural details are important to process-obsessed judges of 2006.  But the evidence is pretty strong that they weren't nearly so important to the judges, practitioners and commentators of the open-air Old Bailey of the early 1700s.

Yes, open-air.  In English weather.  Which gives you a hint about the formality of the proceedings.   The Old Bailey's history website reports that as late as 1833, "it was calculated that the average trial took only eight and a half minutes."  It's probably not through oversight that Blackstone mentions hearsay only once in his four-volume Commentaries, and that in volume III, on private wrongs. 

Hearsay testimony was, in fact, routinely admitted in English criminal trials of the 18th century.  Here's the great Jonathan Wild, subject of works by the two greatest English novelists of the period, testifying (probably falsely) against a highwayman:

The Prisoner at first was very obstropulus, and swore that he would not go with me; but I pulled out a Pistol, and swore as fast as he, that if they made any more Resistance, I'd fire among them; and with that, he grew as quiet as a Lamb.

"For God's Sake Mr. Wild," says he, "Tell me how the Case is -"

"Aye, you Rogue," says his Wife, "This is your Friend Hawkin's doing -"

"'Tis even so," says I, "Your Friend Hawkins has impeached ye."

Then I carried him to Sir Edward [the victim of the robbery], who took him before the Justice, where some of the Goods, which he had pawn'd, being produc'd, he owned that he had them of Hawkins.

That's from Gerald Howson's very entertaining and impressively detailed Thief-Taker General: Jonathan Wild and the Emergence of Crime and Corruption as a Way of Life in Eighteenth-Century England.   Here's another version of the trial.  The incriminating part of that evidence, of course, is the wife's statement tying her husband to  Hawkins - classic hearsay, the admission of which would be deemed unconstitutional today on the basis of Scalia's assertion that it would never have been admitted in an 18th-century trial.

("Impeach" meant to inform on; that's how Peachum, father of the beauteous Polly, earned his name in the Beggar's Opera and its updating.)  (Peachum is customarily said to have been based on Wild - here it's said even more emphatically - though perhaps it's more accurate to say Wild was the most famous member of the profession  Peachum practiced.)

Scalia's paragraph concludes with what he evidently  intended as a zinger: "Indeed, if there is one point for which no case—English or early American, state or federal—can be cited, that is it."  He intended his readers to think that negative assertion meant something.  That's intellectual dishonesty.