Alan Jacobs

Conservatives in the Academy: It Could Be Worse!

Siberia (the non-academic version). Image via Shutterstock.
Siberia (the non-academic version). Image via Shutterstock.

“Forget what the Right says,” the headline instructs me: things aren’t so bad for conservatives in the academy. Jon A. Shields and Joshua M. Dunn, Sr. write,

As two conservative professors, we agree that right-wing faculty members and ideas are not always treated fairly on college campuses. But we also know that right-wing hand-wringing about higher education is overblown. After interviewing 153 conservative professors in the social sciences and humanities, we believe that conservatives survive and even thrive in one of America’s most progressive professions.

Now, it’s true, they go on to say, that these thriving conservatives had to conceal their political views throughout graduate school, the hiring process, and their teaching careers up to tenure, and were only free to express themselves after getting tenure. (Perhaps Shields and Dunn did not interview conservative professors who failed to receive tenure.) And they admit that “being in the closet is not easy.” They further acknowledge that the faculty they interviewed agree that “too many disciplines and subfields — including sociology, literature and modern American history — are ‘unsafe spaces’ for right-wing thinkers. ”

Shields and Dunn also admit that conservatives

remain more poorly represented there than all current targets of affirmative action, and some studies suggest that their numbers are falling. There is bias, too: In one study by George Yancey, a sociologist at the University of North Texas, for example, some 30 percent of sociologists acknowledged that they would be less likely to hire a job applicant if they knew she was a Republican. Yancey found that 15 percent of political scientists and 24 percent of philosophers would discriminate against Republican job applicants, and at least 29 percent of professors in all disciplines surveyed would disfavor members of the National Rifle Association. He found that professors are even less tolerant of evangelicals, partly because that identity is a proxy for social conservatism.

And they note that “Stanley Rothman and Robert Lichter found that socially conservative professors tend to work at lower-ranked institutions than their publication records would predict. In addition, a study of elite law schools shows that libertarian and conservative professors publish more than their peers, which suggests that conservatives must outshine liberals to reach the summit of their profession. The finding is especially striking given that other research suggests it is more difficult for scholars to publish work that reflects conservative perspectives.”

See? Conservative complaints about the unfairness of the academy are clearly wildly overblown. One question, though: if all this adds up to “not so bad,” what would “bad” look like?

Now, I understand what Shields and Dunn are doing here. They want to let progressives in the academy know that there are already conservatives in their midst, some of whom are quite decent people. And they want to encourage conservative academics to make the choice they have made to teach in “the progressive academy.”

But when they write “The answer is not to segregate conservative professors at schools like Grove City College or Liberty University, which most conservative professors regard as academic Siberia,” what they actually mean is that most conservative professors who have chosen not to teach in such schools regard them as academic Siberia. The viewpoint of conservatives who have chosen to teach in schools more hospitable to conservatism is simply not considered by Shields and Dunn. So they try to put the very best face possible on some very unpleasant facts, including facts their own research has uncovered.

There’s a lot to unpack here. More on all this in subsequent posts.

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A Guide to the Dialogue on Democracy

image via Shutterstock
image via Shutterstock

As I write, this dialogue on the splendors and miseries of democracy has been going on for nine installments, with a tenth soon to appear. I’m writing this post first of all to provide a place where every entry will be linked; I’ll update here every time I post something new, so please bookmark this URL if you want to keep track.

But I also want to take this opportunity to answer a few questions that I’ve been getting about the series. Herewith:

So how long is this going to go on?

Honestly, I have no idea. I don’t have a plan; I’m just watching the conversation unfold according to its own internal logic and impetus. At least, that’s how it seems to me. At some point, like all conversations, this one will peter out, but whether that’s in two weeks or a year from now, I can’t say.

Why these two characters, A and B?

A while back, when I started reflecting on my own discouragement about the state of our democracy, I thought: Well, what are the alternatives? And, believing as I do that socialism, communism, and absolute monarchy have been tried and found wanting, I decided that the two most interesting alternatives to our current system are those promoted by the neoreactionaries and the distributists. And then I wondered what might happen if I put those two in conversation with each other.

But you’re B, right?

Not really, no.

So you’re A?

Not him (or her) either. Maybe I’ll know better what I am when I finish with this. My preoccupation at the moment is to try to allow each to make the best case possible for his (or her) position, and in the process to exemplify, as best I can manage it, constructive and charitable debate.

Do you think that neoreactionaries and distributists will agree that you’ve portrayed them fairly?

Many will not, I’m sure. But you know, not all neoreactionaries are the same, and not all distributists are the same. Each movement has a bigger tent than the outsider might at first think. I’ve tried to create figures who are more irenic than strident, willing to concede flaws in their preferred systems, and disinclined to assume bad faith in those who disagree with them; and in that sense, sad to say, these may not be typical figures. I’m sure many people will think I haven’t provided the best arguments, and that may well be true. I just hope the conversation will be interesting and useful.

But these two will continue to be the only participants?

I’m not sure about that. Someone else may be listening in.

Kinda curious that this post is also a dialogue.

Yes, but in this one I’m definitely speaking for myself. Anyway, here are the links to the installments so far:

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Dialogue on Democracy, Part 9

G. K. Chesterton fixing the broken world, via Wikimedia Commons
G. K. Chesterton fixing the broken world, via Wikimedia Commons

Previous installment here.

A. Subsidiarity? At this stage of the game?

B. Especially at this stage of the game.

A. I suppose next you’ll be advocating distributism.

B. And why not?

A. I can’t believe we’re even having this conversation. Say what you will about my neoaristocracy, dude, at least it’s an ethos calibrated to the world we actually live in.

B. That, in a nutshell, is my problem with it. You think of it as a radical alternative to democracy, but I see it as little more than a CMS (Capitalism Management Strategy). You want to leave the structures of modern international capitalism in place and just hand over the control of those structures to a different, presumably more qualified, group of people. By contrast, I think modern international capitalism has done for us pretty much all it can do and needs to be dialed back significantly.

A. Are you serious about distributism? You’re really envisioning some beautiful quasi-medieval world of local pubs that brew their own beer, mom-and-pop shops featuring homespun woolens and tallow candles made according to an ancient recipe handed down through the generations?

B. To be honest, that’s always been my problem with distributism: its absurdly nostalgic character, its idealizing of an often dirty and unpleasant past, its refusal to acknowledge what modernity has done for us. Too often the distributist vision is like a historical theme park, fun to visit as long as at the end of the day we can have hot showers and central heating.

But it doesn’t have to be that way. It’s possible to have distributism and subsidiarity without nostalgia. It’s possible to argue that a concerted program of devolution was not as good an idea in the time of Chesterton and Belloc as it is in ours.

A. Very convenient! It turns out that now is the time for returning power to the local, not a hundred years ago. But what if a hundred years in the future someone is saying the same? “Man, am I glad that no one implemented distributism in 2016 — think of all we would have missed out on!”

B. That might happen. I can’t rule it out. But aren’t you and I agreed that democracy as it’s currently practiced in America is in crisis? Don’t we think that we’re digging ourselves into a political and economic hole and at the very least we need to stop digging?

A. Indeed we do.

B. Okay. So what you’re saying, basically, is that there’s nothing wrong with international capitalism that a shift of power from an ill-informed rabble of a “democracy” to a well-informed neoaristocracy can’t fix.

A. I don’t think I would put it quite that way, but keep going. Your ideas are intriguing to me and I wish to subscribe to your newsletter.

B. First issue will be out soon. But for now let’s say that, at minimum, you believe that the dynamism of international capitalism can be used to make the world a better place if it’s directed by the right people. I have two major criticisms of that model. The first, which I described to you the last time we were together, is that I don’t think even “the right people” are capable of making dramatically superior decisions to hoi polloi because of the scale at which they’d have to operate and the general human inability to master their own cognitive biases.

A. May I ask you something about that?

B. Sure.

A. It’s certainly sobering to hear Daniel Kahneman say that he has not been able to overcome his own cognitive biases, at least not to a great degree. But might that not be, at least in part, a function of his own education? Isn’t it possible that an educational system fundamentally based on what we’ve learned from Kahneman and other scholars in his field could produce a genuine neoaristocracy? I guess I’m asking: Don’t you believe in education?

B. I do believe in education, but within contraints established by our creatureliness. Nobody thinks that a person can run 100 meters in four seconds if he just trains hard enough. We have to understand and embrace our natural limits and work within them, rather than always striving to transcend them. That’s why I mentioned Dunbar’s number last time. What if that’s not some historically contingent phenomenon but rather a fundamental constraint on our cognitive capacities, a constraint as fixed and non-negotiable as the speed of light? If that’s the case then there is something intrinsically unmanageable about international capitalism, even with all the computing power we now have — especially since the computers are always programmed by us.

See, you’re trying to adapt our mode of governance to the size of today’s hypertrophied global nation-state; but what if we went the other way? What if we retained a commitment to democracy, but changed the size of our basic political units in such a way that democracy is actually realizable?

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The GOP After Trump

Artist's rendering of GOP headquarters (Uncyclopedia)
Artist's rendering of GOP headquarters (Uncyclopedia)

If there’s one point on which the political commentariat are currently agreed on, it’s that the rise of Donald Trump means the end of Business as Usual for the GOP — that there’s no going back to the way things have been done since the days of Ronald Reagan.

I’m not convinced.

I’m not saying that these people are wrong; I’m just not sure that they’re right. Will the party bosses and apparatchiks fall on their swords? Surely not. Will the highly-paid consultants admit that they don’t know what they’re talking about and gracefully withdraw from the stage? Don’t make me laugh.

So here’s the question that matters: Will the big donors demand the resignation of the party leaders, and turn to different consultants? Maybe.

But maybe not. Here’s what the people currently in charge will tell them: “Trump is a black swan. Nobody could have predicted that his candidacy would take off like this. Yes, he tapped into some legitimate resentment, but those people were pretty quiet before he came on the scene and they’ll fall back into that same quietness when he’s no longer around stirring them up. No one else is going to rise up to be their champion, because such a person would need not only to share their point of view, but also be famous enough to win their admiration and rich enough to run his own campaign without help from any of us. Ain’t gonna happen. By the time the next campaign rolls around, the long-standing patterns of political affiliation will have reasserted themselves. Plus, Rubio has earned a great deal of respect for how he has run his campaign, especially in these last few weeks; he has learned from the mistakes he made this time around; and four more years of age will only make him look more Presidential. We’ve got this. Just give us one more chance.”

Will the donors buy — figuratively and literally — this argument? I think there’s a pretty good chance they will. After all, to reject it would be to acknowledge that they’ve been throwing money away for years, in some cases decades; and to accept that they’ll have to build a whole new set of relationships with people they don’t know very well, or at all. The narrative the incumbent party bosses will tell them is a narrative they have massive incentive to believe.

I would be very grateful if some wise person who is convinced that Trump is permanently changing the GOP would explain to me the mechanisms by which this change will be effected. This inquiring mind wants to know.

P.S. Of course, the above assumes that Trump will not win the Presidency. If he does, all bets are off.

Dialogue on Democracy, Part 8

B. Wow, haven’t seen you in a while.

A. Yeah, sorry about that. I’ve been checking out the Seasteading Institute.

B. Goodness, you are serious, aren’t you?

A. Yes, serious — but also critical. Nothing if not critical. But when we left off you were beginning to make a rousing pitch for the renewal of democracy, or something like that —

B. Something like that.

A. — Right. But surely you’ll admit that the rise of Trumpism makes your case harder to sustain, yes? I mean, how could anyone who would vote for a blustering, arrogant, narcissistic, pathologically dishonest blowhard like Trump ever be said to have a legitimate right to vote? I think it was Camus who said that democracy is devised and maintained by people who know that they don’t know everything — but these people do think they know everything when in fact they know nothing!

B. My views of Trump are close to your own, though I think your description of him errs on the side of generosity. But I would account for Trumpism, for the Trump phenomenon, rather differently than you do. I want to remind you of something I said the last time we were together: “people are interested in and even knowledgable about politics – but politics only on a human scale, a scale appropriate to the range of their experience and interests. Many, perhaps most, of the pathologies of our current political order are products of inhuman scale.” Critics of Trumpism rarely acknowledge, much less reckon with, the uncomfortable fact that the very people who make shockingly bad decisions when they’re participating in national politics — and make no mistake, I think the decision to vote for President Trump is shockingly bad — are quite reliable, even shrewd, within their local sphere of action. I would be willing to bet that many of the people who say they want Trump as President wouldn’t even think about supporting him if he were running for Town Dogcatcher.

A. Really?

B. Yes, really! I mean, you need to know very little about Trump to realize that he simply couldn’t be counted on to do what he promises — even vows — to do. If Trump were dogcatcher, wild dogs would terrorize the town as he was explaining to his personal stylist that he’d like to be just a teeny bit more orange. (Though he’d put the whole power of his office behind the search for a Pekinese who growled at him once.) The question is: Why do people know this kind of thing on the local level but fail to grasp it on the national or international? It’s because none of us understand matters that get beyond the human scale. We’re all in the iron grip of Dunbar’s number.

A. But this is precisely why I’ve made my case for a new aristocracy — and why I think most people would not just accept but prefer it, in that they would be delivered from the need to think about things they can’t understand.

B. Your argument would be plausible were it not for some assumptions planted deep within it: namely that your neoaristoi can make themselves invulnerable to such constraints as Dunbar’s number, and can overcome the cognitive biases that other, lesser people are subject to. But we have strong reasons to question those assumptions. There’s a really sobering moment near the end of Thinking, Fast and Slow where Daniel Kahneman, who has done more than anyone else in the world to help us understand the range and extent of cognitive bias, writes:

What can be done about biases? How can we improve judgments and decisions, both our own and those of the institutions that we serve and that serve us? The short answer is that little can be achieved without a considerable investment of effort. As I know from experience, System 1 is not readily educable. Except for some effects that I attribute mostly to age, my intuitive thinking is just as prone to overconfidence, extreme predictions, and the planning fallacy as it was before I made a study of these issues.

Let me stick with Kahneman’s work for a minute. You have repeatedly commented on how irrational most people are, and I have sometimes agreed with you. But Kahneman suggests that we tend to make that claim because we have a deeply unrealistic sense of what counts as rational:

The definition of rationality as coherence is impossibly restrictive; it demands adherence to rules of logic that a finite mind is not able to implement. Reasonable people cannot be rational by that definition, but they should not be branded as irrational for that reason. Irrational is a strong word, which connotes impulsivity, emotionality, and a stubborn resistance to reasonable argument. I often cringe when my work with Amos is credited with demonstrating that human choices are irrational, when in fact our research only showed that Humans are not well described by the rational-agent model.

Kahneman goes on to say that “Although Humans” — Humans being actual people, as opposed to the “rational agents” often posited by economists, whom Kahneman calls Econs — “are not irrational, they often need help to make more accurate judgments and better decisions, and in some cases policies and institutions can provide that help.” Indeed they can.

A. They can? Didn’t expect you to go there! Are you about to become a proponent of paternalistic nudge theory?

B. Well, that’s sort of where Kahneman is. But not me. I think of nudge theory as a way of dealing with both cognitive biases and the human dislike of being dictated to — the same dislike of being dictated to that animates much of Trumpism — without adjusting the structure or scale of our governing institutions. I’m going to push for something considerably more radical — as radical as your New Aristocracy, though in something like the opposite direction. I’m going to make a case — a kinda new case — for subsidiarity.

A. Oh good grief.

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Justice Jackson, Consistency, and Discipline

President Truman in the act of committing executive overreach, via Wikimedia Commons
President Truman in the act of committing executive overreach, via Wikimedia Commons

The other day I received a really smart and interesting email from a reader named Raghav Krishnapriyan in response to my second post on “disciplinary originalism” in SCOTUS decisions. Here’s a key passage:

I was surprised, however, to see Justice Jackson’s dissent in Korematsu cited as an exemplar of disciplinary originalism, since as far as I can tell, there’s nothing distinctively originalist about it. And insofar as either Jackson or Black (the author of the majority opinion) can be thought of as an originalist avant la lettre, I would have thought it would be Black, the textualist, rather than Jackson, the quintessential pragmatist.

We’re speaking here, after all, of the same Justice Jackson whose second most famous opinion began with the following candid acknowledgement:

“That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction.” [Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).]

Over and over one finds in his opinions references to the potential consequences that would follow if a case were decided a certain way, with an implicit or explicit suggestion that these consequences played a role in his decisionmaking process. See, e.g., Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting) (“The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”); McDonald v. United States, 335 U.S. 451, 460 (1948) (Jackson, J., concurring) (“I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued.”); W. Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) (“Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.”). It seems to me like these sorts of considerations are antithetical to originalism of any variety.

Again, a superbly well-informed and thoughtful reply. I will of course disagree with it, at least in part.

First, though, I want to say that I find it more useful in these discussions to commend arguments than to commend justices. It is very rare to find a SCOTUS justice, or indeed any judge, whose decisions are greatly consistent with one another. Some legal scholars worry about this a lot, and believe they achieve a considerable degree of consistency. Others think that the achievement of consistency over time is nearly impossible and should not be the focus of obsessive attention. Justice Cardozo, for instance, in a famous book, commented,

It is well enough to say that we shall be consistent, but consistent with what? Shall it be consistency with the origins of the rule, the course and tendency of development? Shall it be consistency with logic or philosophy or the fundamental conceptions of jurisprudence as disclosed by analysis of our own and foreign systems? All these loyalties are possible. All have sometimes prevailed. How are we to choose between them? Putting that question aside, how do we choose between them?

He thought it was best to judge each case on its merits and not try to force one’s decisions into a pigeonhole, not to be afflicted by that “hobgoblin of little minds” that Emerson spoke of.

With all this in mind, my commendation was of a particular decision by Justice Jackson, not of Jackson’s jurisprudence more generally. I take Raghav’s point about the general tendency of Jackson’s legal reasoning.

Still, I think Youngstown is pretty useful in illustrating the points I have been trying to make in my two earlier posts on these matters, and in this one. Viz.:

1) Raghav writes of Hugo Black as a textualist, and he certainly is in Youngstown, where he refuses to allow Presidential powers not specified in the Constitution; but earlier, in the Korematsu decision from which Jackson so eloquently dissented … not so much. Thus illustrating my point about the rarity of judicial consistency, and also illustrating the intrinsic difficulties of methodological originalism, or methodological textualism, if you will.

2) By contrast, I love Jackson’s concurrence in Youngstown precisely because it acknowledges that there are multiple forces at work in any major judicial decision, multiple obligations for any justice. (This is also Cardozo’s point in the passage I quoted above.) He points out that one must look not just at the relevant judicial history, but also the contemporary legislative context: e.g., is the President in attempting to extend his powers acting in defiance of the express will of Congress? I read Jackson’s concurrence as a kind of correction of Black’s supposed textualism. Jackson is saying to Black, “Yes, you’ve reached the right decision in this case, but you are wrong to suggest that this is, or can be, a matter of simply reading the Constitutional text and saying, ‘Nope, nothing about seizing steel mills there.’ You may think that you made your decision on purely textual grounds, but you didn’t, because none of us ever does.”

3) Thus I think that Jackson’s concurrence in Youngstown operates under the same general jurisprudential logic as his dissent in Korematsu. He acknowledges that strict methodological textualism, or originalism, is impossible; but he refuses to accept that the only alternative to such an interpretative standard is Laurence Tribe’s model of reading the Constitution pragmatically, as an instrument for allowing us to get what we want — especially when “us” is the office of the President. So I think that in both Korematsu and in Youngstown Jackson is indeed manifesting the kind of skeptical restraint of expanding governmental power that I see as intrinsic to disciplinary (as opposed to methodological) originalism. This is a matter not of hermeneutical theory and the application thereof, but of temperament and disposition. If Jackson did not always act according to this disposition, and I grant Raghav’s point that he did not, he nevertheless managed to do so in some vitally important cases, and in them provides a model that I wish more justices would follow.

All that said, IANAL, so take this for what it’s worth. But at the very least, in this period of ever-increasing executive-branch power, it’s worth our while to meditate on both Korematsu and Youngstown. There’s much to be learned from both cases.

How to Deal with Skeptical Students Without Being a Jerk

The School Teacher, by Krzysztof Lubieniecki; Wikimedia commons

I’m late to this fairly silly little story, but something about it intrigues me:

“Don’t take this class if you believe the Bible is inspired or infallible.”

When I started taking classes a year ago as an entering doctoral student here at UC Berkeley, I knew I was entering a very liberal environment. I had heard that the campus was the flagship of liberal academia, and I was also familiar with other bastions of liberalism during my time in the Ivy League and at Oxbridge as an undergraduate and a master’s student, respectively. But despite UC Berkeley’s ultra-liberal reputation, I took it as a given that there was still significant latitude for free thought and expression in the classroom.

Thus, I was not expecting the unapologetically heavy-handed double standard I encountered from the professor, a well-respected biblical scholar. His initial cutting remark within five minutes of the start of class was soon followed by more: “This stuff isn’t taught in synagogues or churches because they don’t want to piss people off. … Anyone can take this class, as long as you play by the rules of the game. … If you disagree with the approach we use, that’s an F.”

What intrigues me is that I have a good deal of sympathy for the professor. Here’s why: A handful of times in my career at Wheaton College I had students who didn’t think that we should be reading literature at all. The protestors were always people who didn’t really grasp the distinction between a Bible college and a Christian liberal-arts college, and were deeply and genuinely grieved that in a school that formally upheld the authority of Holy Scripture students would be asked to read books written by atheists and pagans.

I think I was kind to these people, and would offer to meet with them in my office to talk about their concerns. But on two or three occasions a student wanted to use class time to conduct a debate about whether Christians were allowed to read non-Christian books — something that, beyond a fairly brief statement about why I think Christians are not just permitted to read such books but often should read such books, I was disinclined to do.

This was more of a pedagogical than a theological decision. There indeed could have been value, and not just for the protesting student, in going back to something like First Educational Principles and articulating a defense of a Christian liberal arts model, quoting Augustine (“All truth is God’s truth, wherever it is found”; “spoiling the Egyptians”) and all that. But in my judgment that class was, to quote a wise man, not the venue. The more time I spent making such arguments, the less time I could spend on the literature that I had been hired to teach. So, at the risk of frustrating people who had legitimate questions, I always made the call to cut that debate short.

So yeah, I have some sympathy for the professor at Cal. But only some. He was also — if he is being quoted accurately here — acting like a jerk, and here’s how he could have handled the sitation better:

  • First, he could have been more clear about what he was actually saying to his students. First he said, “Don’t take this class if you believe the Bible is inspired or infallible”; but then he said, “Anyone can take this class, as long as you play by the rules of the game.” Which is it? Similarly unclear: “If you disagree with the approach we use, that’s an F.” If you disagree with anything about the “approach”?
  • Having gotten all that clear in his own mind, he should have said something like this: “The historical-critical method for studying the sacred texts of Israel is often controversial within faith communities; but this isn’t a faith community, it’s an academic one, and we have our own rules and methods. You are of course free to disagree that this is the best way to approach these texts; but in this class this is the general approach we’re going to employ, and that’s not up for debate.”
  • And then, finally, he should have said, “If you have questions about this decision, please come by my office to talk. I will try to explain, briefly, why I take the approach I take, and if that’s not enough for you, I’ll point you towards some books and articles that will make the case in greater detail.”

As a professor, you don’t have to change the structure of your class to suit students who would prefer you to do things a different way; but you don’t have to treat them with contempt or derision either. And that’s a key universal rule for teachers.

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The Value of Disciplinary Originalism, Revisited

Fred Korematsu wearing his Presidential Medal of Freedom; photo by Capital News Service
Fred Korematsu wearing his Presidential Medal of Freedom; photo by Capital News Service

To understand why I think disciplinary originalism is valuable, let’s take a look at one of the most widely condemned of SCOTUS decisions, Korematsu vs. the United States. In Korematsu the court allowed the practice of evicting United States citizens, often native-born citizens, from their homes and moving them away from the West Coast simply because they were of Japanese descent. The vote was 6-3, and each of the justices who voted in favor of the executive order that mandated the evictions  was appointed by President Roosevelt, the man who issued that order. (In a separate but closely related case, the Court ruled that such citizens could not be “detained,” thus depriving the internment camps for Japanese-Americans of legal sanction.)

The chief interest of Korematsu, for today’s reader of the history, is the dissent by Justice Robert Jackson, later to become the Chief Prosecutor at the Nuremberg Trials. In the first stage of his dissent — which you may see in full by going here and scrolling about three-fourths of the way down — Jackson points out that Fred Korematsu was a natural-born citizen of the United States whose loyalty to his country had never been questioned by anyone. He was merely living and working in the place of his birth, but was by the Executive Order obliged to turn himself in to military authorities — an obligation that he would not have faced had he been even “a German alien enemy, an Italian alien enemy, [or] a citizen of American-born ancestors, convicted of treason but out on parole.” Yet he was different from those others “only in that he was born of different racial stock.” Jackson continues:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that ‘no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.’ Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.

This point would have been sufficient in itself to declare Roosevelt’s order unconstitutional, but Jackson discerned a larger and greater issue at stake:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more [323 U.S. 214, 246] subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.

Jackson’s point here is exceptionally acute: this is not a matter of “rationalizing” — giving an implausible intellectual account of — the order, but rationalizing the Constitution. Which is a far more dangerous move.

The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

People are often automatically dismissive of “slippery-slope” arguments, as though no slopes are ever slippery; but once a metaphor is dead it’s dead. Justice Cardozo’s phrasing may be more useful: “the tendency of a principle to expand itself to the limits of its logic.” This tendency is almost inevitable in SCOTUS decisions, because of the power of precedent: only rarely is a decision walked back; rather, a “passing incident” very easily and naturally “becomes the doctrine of the Constitution” when justices see different situations in which it can be applied. All the pressure is on one side, towards expansion rather than contraction of the principle.

Such expansion of a principle is all the more likely to happen when popular opinion, especially elite popular opinion, is also strongly on one side. FDR’s decision to move Japanese-Americans from their homes was quite popular (as were the internment camps) and eight of the Justices had the further pressure of owing their positions on the Court to the Roosevelt. What they needed — but what only three of them had — was a jurisprudential principle substantial enough to make a counterweight to those pressures. All three of the dissenting judges had that principle, but it was most fully developed in and articulated by Jackson.

Just a few months ago Justice Antonin Scalia was asked, by law students at Santa Clara University, which Supreme Court opinion he most admired. He named Jackson’s dissent in Korematsu.

Scalia and Disciplinary Originalism

Justice Antonin Scalia, official portrait via Wikimedia Commons
Justice Antonin Scalia, official portrait via Wikimedia Commons

There are two very different ways to think of Antonin Scalia’s preferred method of interpreting the Constitution, often called originalism—and by the way, that Wikipedia page is unusually accurate and useful, though perhaps skewed a bit towards critics of originalism.

One might think of originalism as a method, or one might think of it as a discipline. If you conceive of it in the former way, you will run into some serious problems; if you conceive of it in the latter way, it is profoundly salutary. In a recent critique of Scalia, Laurence Tribe uses the words “method” and “methods” seventeen times — he can’t conceive of originalism in any other way. But there is another way.

Originalism as a method is unmanageable for several reasons, all of which stem from the essential and unavoidable condition of Constitutional interpretation, which is to apply to legal situations today a Constitution that was written more than two centuries ago. For one thing, it often requires justices, even after thorough and detailed research, to guess (infer, intuit) what the Framers might have thought about what’s happening today. But how do you do that? In the strictest sense, the Framers imagined almost nothing that we are dealing with today, since our world is so different. So rigorous methodological originalism would make the Constitution irrelevant to the law today.

It is tempting to say that, since strict or what we might call methodological originalism removes the Constitution from current legal disputes, then must we not follow the living Constitution model? In that just-linked (and now-archaic, though still-relevant) article, Jack Balkin of Yale Law School writes, “We are all living constitutionalists now. But only some of us are willing to admit it.” But that’s true only if the “living Constitution” model is the only alternative to methodological originalism.

If the problem with methodological originalism is that it renders the Constitution effectively nugatory in current legal disputes … well, that’s the problem with the living Constitution model too. Because in practice what makes the Constitution “living” is that it says what we want it to say. Scholars like Balkin more-or-less explicitly endorse this stance: “There’s something deeply wrong with a theory of constitutional interpretation that treats some of the key civil rights decisions of the 20th century as mistakes that we are stuck with.” That is, those “key civil rights decisions” produce immensely valuable and just results — a point I absolutely agree with — and therefore must be good decisions.

As I commented in an earlier post on Scalia, Balkin’s essential jurisprudential principle might be summarized thus:

If a law produces, or seems likely to produce, an outcome that right-thinking people deem socially desirable, then that law is ipso facto constitutional; by contrast, if that law produces, or seems likely to produce, an outcome that right-thinking people deem socially undesirable, then that law is ipso facto unconstitutional.

But it’s hard to see how a “living Constitution” that is alive in this way is anything more than a re-animated corpse controlled by a console in the hands of SCOTUS. Balkin has tried to square this circle, but in a way that it seems to me makes virtually no concessions to the originalist view it claims to be taking seriously. And Tribe simply grasps the nettle: “I see [Scalia], with great respect, as a worthy adversary—but an adversary all the same—of the just and inclusive society that our Constitution and laws should be interpreted to advance rather than impede.” First you decide what you think a “just and inclusive” society is, and then you interpret the Constitution so that it endorses your views. In such a scheme the Constitution, and therefore our own national history, is rendered incapable of speaking back to us — of having its own voice rather than a dim echo of our own.

I confess to much ambivalence on this score. In a very important sense it would have been far, far better for the key social and legal decisions of the Civil Rights era to have been made by legislative rather than the judicial system. But our legislators, especially on the state level, were moving very slowly or not at all. And when I think about those who in those days counseled patience, I always hear the voice of Martin Luther King, Jr.:

We have waited for more than three hundred and forty years for our God-given and constitutional rights. The nations of Asia and Africa are moving with jetlike speed toward the goal of political independence, and we still creep at horse-and-buggy pace toward the gaining of a cup of coffee at a lunch counter. I guess it is easy for those who have never felt the stinging darts of segregation to say “wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people; when you have to concoct an answer for a five-year-old son asking in agonizing pathos, “Daddy, why do white people treat colored people so mean?”; when you take a cross-country drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger” and your middle name becomes “boy” (however old you are) and your last name becomes “John,” and when your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodyness” — then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over and men are no longer willing to be plunged into an abyss of injustice where they experience the bleakness of corroding despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.

A long passage, but one that can’t be reflected on too deeply or too often. The extended, throbbing sentence in the middle of that paragraph is as powerful an embodiment as I know of the pain of waiting, waiting, waiting, for a remediation of the grossest of injustices.

So I get what Balkin is saying when he notes that few of us, on the Left or on the Right, would want to undo “the key civil rights decisions” of the 20th century. But not all the decisions, not most of the decisions, made under the living-Constitution model have been as just or as commendable. Indeed, some of them have made a mockery of the Constitution and cannot possibly be defended in terms of legal reasoning, however desirable one might think the outcome.

So this is why discplinary originalism matters. Disciplinary originalism understands that methodological originalism is unworkable because it makes the Constitution useless. But it also wants to allow the Constitution to speak to us, and to force us, when we are departing in some significant way from its principles, to go back to our legislators and change the laws — and amend the Constitution itself when necessary. Disciplinary originalism keeps us honest. It forces us to know what we’re doing, and not to console ourselves with the pretense that we are somehow in the Great Tradition of the Framers when we are in fact repudiating much of what they believed. It doesn’t tell us we can’t or shouldn’t dissent from the beliefs of the Framers; it just asks us to admit it openly when we do so.

Critics of Justice Scalia often accused him of inconsistency. And insofar as he was a methodological originalist he sometimes was inconsistent. But I think the heart of his jurisprudence was disciplinary originalism, and with his death the most powerful embodiment of that vital principle was lost. I do not think we shall look upon his like again. And that means that our Supreme Court will continue to make the kinds of decisions it has been making for decades, but will have no one on its bench to remind it of what it’s really doing. Antonin Scalia was the conscience of SCOTUS, and I don’t see how it’s going to get another one.

Creativity and Constraint

Costume designs for Der Ring des Nibelungen by Carl Emil Doepler, Berlin, 1889 via The Morgan Library & Museum
Costume designs for Der Ring des Nibelungen by Carl Emil Doepler, Berlin, 1889 via The Morgan Library & Museum

Here’s a fascinating post by Martin Filler about the history of staging Wagner’s operas:

The Wagner siblings’ [Wieland and Wolfgang, grandsons of the composer] starkly minimalist productions — in several instances the stage was left completely bare, and lighting alone defined some indoor or outdoor space — reflected two harsh realities: a lack of funding, and the need to avoid any representational feature that could be interpreted as political, given how compromised the Wagner legacy was. Significantly, these stripped-down stagings, which owed much to the reductive modernist concepts of the Swiss stage designer Adolphe Appia (1862–1928), had a purifying effect that was quite intentional in shifting audience attention toward the Ring’s penetrating psychological aspects and away from the impossible stage business — swimming mermaids, flying horses, a fire-breathing dragon, and a talkative bird, among other fantasies — that has always bedeviled directors.

Like the best abstract art, the New Bayreuth Style, as it was dubbed, allowed viewers to project their own interpretations onto a nearly blank canvas, and to draw illuminating conclusions of their own about the deeper meaning of what they saw before them. The pendulum theory of culture — which holds that action and reaction reflexively animate stylistic swings as broad as those from Rococo to Neoclassical and Pop to Minimalism — might indicate that after every last anachronistic dystopia has been exploited as a stand-in for Valhalla we might finally see a return to undistracting theatrical values more closely aligned with Wagner’s gloriously transcendent music of the spheres.

I appreciate Wagner’s music more than I enjoy it, but I resonate with Filler’s argument because I have a long-standing and oddly passionate interest in the relationship between constraint and creativity. I often think of Miles Davis, who developed his distinctively “cool” style of trumpet-playing — slow, no vibrato, muted more often than not — because he realized that he could never compete with the technical virtuosity of Dizzy Gillespie and refused to be a second-rate version of Diz.

Such creativity-from-constraint doesn’t always emerge from limitations of technique: there has rarely if ever been a more technically masterful artist than Picasso, but all he needed to make wonderful art was two pieces of an old bicycle — which I suspect was harder to get just right than one might at first think: when you only have two items to work with, their juxtaposition must be exact to create the desired effect. In a similar vein, I once heard a set designer comment that spare sets are far more expensive than elaborate ones, because in a spare set every item has to be perfect.

Many years ago I attended a performance, at the Chicago Lyric Opera, of Handel’s Samson — which is not an opera but rather an oratorio. However, the CLO had money in hand and decided to operify the performance, which they did primarily by placing a big wheeled cart on the stage, to which Samson was chained for most of the production. From time to time extras could come out and wheel the thing from one side of the stage to the other. That was all the dynamism the director could manage to generate, and the effect was to distract the audience’s attention from Handel’s music and focus it instead on the futility of the cart’s movements — which managed to drain every last ounce of energy from the room.

All this was especially sad because the singers were excellent and the music often inspired. If the CLO leadership had allowed the oratorio to be an oratorio — if the singers had just stood at the front of the stage and sung to us — I suspect it would have been a memorably wonderful evening, instead of a memorably dumb one. But the director did not trust the singers or the music. There’s a lesson to be learned from this, one that, to judge from Filler’s post, few contemporary directors of Wagner’s operas have yet learned.

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