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February 27, 2005

"only common sense allowed"

Don Herzog: February 27, 2005

David Horowitz and Roger Bowen, general secretary of the American Association of University Professors, appeared on Scarborough Country this past Thursday.  My title comes from host Joe Scarborough's introduction.

Here's a bit of my own common sense.  Watch what happens in response to this inflammatory claim:

HOROWITZ:  Well, there are thousands of Ward Churchills on college campuses, and there are whole departments and programs that express his views that America is a terrorist state, that one man‘s terrorist is another man‘s freedom fighter.

After saying he approves of the ideals of the Academic Bill of Rights, Bowen insists that the real question is whether government should enforce it.  (I agree.)  Then he responds to Horowitz's claim that there are "thousands of Ward Churchills":

BOWEN:  ... And pointing to the Ward Churchills of the world — and there are not thousands of them — I am amazed that Mr. Horowitz has done the math.  There are not thousands.  I think pointing to him is feeding into a public frenzy.

After some irrelevant other comments degenerate into "crosstalk," the host intervenes.

SCARBOROUGH:  No, no, no, no, no.  I don‘t care about all of this.  We are talking about whether campuses are radical or not.  You have said there are 1,000 Ward Churchills out there.

HOROWITZ:  Yes.

I don't know if Horowitz agrees because he's happy to see his "thousands" demoted to "1,000" or because he doesn't care.  What's a little hyperbole among friends?  The host continues.

SCARBOROUGH:  He says there‘s not.  But let me say this, though.  I mean, last year, two professors did a large-scale survey of American professors and how they vote.  Politically, this is what they found. 

Anthropology professors vote Democratic by 30-1, sociology professors 28-1, political science professors 6-1.  And on average, professors vote Democratic 15-1.

I suppose Scarborough's "let me say this, though" acknowledges that he's changing the subject.  It would be hard to say with a straight face that the evidence of lopsided party membership — and I've already insisted that universities should be more diverse — supports the claim that there are thousands of Ward Churchills.  Or even 1,000.  Before Scarborough produced that data, Horowitz had suggested a link:

HOROWITZ:  ... It‘s a well-known principle of group psychology that, if you fill a room with like-minded people, the center of the room is going to move to the extreme.  Our faculties are 90 percent to 95 percent people of the left, so, of course, you are going to get a lot of Ward Churchills as a result.

His "a lot" quickly followed his "thousands."  I doubt the "well-known principle" generates thousands of Churchills.  I doubt it partly for empirical reasons:  I don't know any, and I've been in universities for decades.  No, don't try suggesting that I wouldn't even notice.  And I doubt it partly because it's very hard to imagine the effect could be so extreme.  Does your church generate martyrs and saints?

Our guests return to the question of why there aren't more conservatives in the academy, and Bowen offers this lame suggestion:

BOWEN:  I would love to have more conservatives, but I think many of them prefer to go into banking or perhaps into economics.

Sigh.  And then Horowitz defends his turn to the legislatures:

HOROWITZ:  ... Look, the bill is necessary.  The legislatures are necessary because the other side, as represented by Mr. Bowen and by these university presidents, will not even acknowledge that there‘s a problem until they have a hammer over them.  The minute they recognize that and take steps to reform their institutions, we will withdraw the legislation.

This all moves fast on screen, of course, and is regularly interrupted by the raucous "crosstalk" supposed to make these talking-head duels exciting.  But I bet some viewers decided that legislatures have to intervene because there are thousands of Ward Churchills.  And I bet Horowitz wanted them to.

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February 25, 2005

originalism in constitutional law: one

Don Herzog: February 25, 2005

A while ago, I explained why strict constructionism in constitutional law is hopeless.  I took strict construction as the view that we should just apply the words in the text and not "make things up" that aren't "there."  And — no point fussing over labels — I acknowledged that "strict construction" could mean appealing to the intentions or understandings of the framers or ratifiers, and promised that I'd turn to explaining what's wrong with that view, too.  So here goes.  In this preliminary post, I'll sort out a series of different views and make some general objections to them.  In my next two on this matter, I'll waive those objections and show that originalism doesn't get its champions what they're after.

Oh, if you're reading posts on this blog trying to expose our covert but shrill and unceasing support-the-Democrats agenda, you've been confused about what happens when you ask academics to think aloud about politics — and you will find my posts on this topic extraordinarily sly in concealing, well, in concealing what isn't there.  That the legal theory of originalism tends to be associated with conservatives is of zero interest, and at no point will I suggest that it is a bad theory because it generates right-wing outcomes.

One:  whose original understanding are we interested in?  That of the framers of the language?  Or that of the ratifiers?  Each of those alternatives can be splintered further.  Consider the fourteenth amendment.  If you think the framers' understanding is key, should we be especially interested in the views of draftsman and champion Representative John Bingham, or the committee members who kept redrafting the language, or the members of both houses of Congress who voted for the amendment, or all the members of Congress?  If you think the ratifiers' understanding is key, should we be especially interested in the views of members of the state legislatures who voted yes, or all members of the state legislatures, or the citizens who supported the measure, or all citizens?

The question suggests a pincer attack:  competing demands pull in opposite directions.  The narrower the group you choose, the more likely it is that you will be able to identify an original understanding in the first place.  I can imagine some historical information about what John Bingham thought, but I doubt that Americans at large shared any understanding of the amendment. (In The Fourteenth Amendment, William E. Nelson documents one crucial ambiguity and disagreement after another.  For instance, "Congress and the state legislatures never specified whether section one was intended to be simply an equality provision or a provision protecting absolute rights as well."  He shows that even Bingham was of two or three minds.)  So go narrow, you might think, lest the originalist project not get off the ground.

But any attention to democratic legitimacy pulls the other way.  I can see why we might respect an understanding installed in the constitution by the people — not for nothing does the original text start, We the People.  But why in the world should we be governed by the views of a relatively narrow group of people?  You might imagine there is some perfect Goldilocks fit, narrow enough that we can surface an original understanding, broad enough to look democratically legitimate.  I can think of no interesting clause for which there is a Goldilocks fit.  And originalism will break down or need some nonoriginalist supplement for any clause for which there's no Goldilocks fit.

Two:  just what does "original understanding" refer to?  This question is wholly independent of my first question:  for whatever preferred actor(s) you identify to answer question one, you can still choose any option for question two and you still have to choose one.  Maybe original understanding is a reminder that English words can change their meaning over time, so we should be historically disciplined by facts about contemporary linguistic usage.  (An old chestnut:  if a constitutional provision stipulated that something must occur "biweekly," you'd want to know whether contemporaries meant "twice a week" or "once every two weeks.")  I'm completely on board with that version of originalism.  But if that's all there is, originalism is only a wrinkle on the hopeless strict constructionist view:  after figuring out what ciontemporary usage was, we'll still be staring intently at the abstract words of constitutional provisions as if they dictated outcomes.  But "equal protection" won't tell you what to do about affirmative action even after you find out what mid-19th-century Americans meant by "equal" and "protection."

For original understanding to depart interestingly from strict construction, then, it's got to be more than the injunction to use a historically sensitive dictionary.  So consider the surprisingly varied candidates originalists have referred to.

Some opt for your preferred actor's intentions.  If that means anything like private mental states, leading originalists (Justice Scalia, former Solicitor General Charles Fried, Prof. Randy Barnett) roundly reject the view for good reason.  Law has to be public; it's tyrannical to be told that the law consists not in the actual words made law, but in what some people thought about it.  I complained a while ago about the bait-and-switch tactics of those who championed a state constitutional amendment banning same-sex marriage here in Michigan, assured voters that it had nothing to do with domestic partnership benefits — and then promptly suggested the amendment does ban those benefits.  Their move was contemptibly shoddy dealing in a democracy, but the legal force of the language on the books isn't what people intended to accomplish in voting for it.  Still I leave "intentions" on the list because self-styled originalists do invoke it and they probably mean what they say.  Attorney General Edwin Meese III famously called for "a Jurisprudence of Original Intention," though he provided different glosses on what that might mean.

Some originalists turn to contemporary understandings of the language, but move past the dictionary view and ask:  what would their preferred actor(s) have taken the legal force of the constitutional language to be?  To see the difference between intentions and that question, return to the Michigan constitutional language.  A voter could correctly say, "Whoops, I meant only to stop gay marriage, but now I see the language actually might preclude partnership benefits."

To answer that question, originalists again invoke surprisingly varied kinds of sources.  There's documentary evidence making claims about the meaning of the passage in question.  There's documentary evidence on similar passages, or why competing passages were rejected.  There are political campaigns and lawsuits brought in the name of the passage, early judicial decisions invoking it too.  There are contemporary practices, which get used in two ways.  Some want to show what enemy was being rejected:  chattel slavery plays that role in construing the fourteenth amendment.  Others want to show what the passage couldn't sensibly be enlisted to oppose.  They argue, for instance, that if the Congress that passed the fourteenth amendment ran racially segregated public schools in Washington, DC (it did), it was loopy for the Supreme Court to decide that the amendment prohibits racially segregated public schools.  Not only are there varied kinds of sources, but frequently within any one kind we can discover competing and contradictory evidence.

So the grammatically incorrect but conceptually helpful question is, what are originalism?  There are plenty of possible views on offer, a genuinely embarrassing embarrassment of riches.  That very plenty suggests another pincer attack in response to the worry that judges will have discretion, especially in constitutional law.  Don't give judges enough resources to use in interpretation, and they'll have discretion:  that's how strict constructionism founders so spectacularly.  But give the judges too many resources to use, and again they'll have discretion:  they can pick and choose as they see fit from the list of approved sources.  Is there a Goldilocks fit that will give the originalist the right actor(s) to appeal to, the right sources to assemble an original understanding, and a reasonably univocal result on the original understanding that will yield clear judicial mandates?  I doubt it.

More to follow on just why I doubt it.

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February 24, 2005

Liberals, Conservatives and Values

Gerald Dworkin: February 24, 2005

Jonathan Chait has an interesting piece in the current New Republic

The relevant part for my discussion is the following.

…conservatism, unlike liberalism, overlays a deeper set of philosophical principles. Conservatives believe that big government impinges upon freedom. They may also believe that big government imposes large costs on the economy. But, for a true conservative, whatever ends they think smaller government may bring about--greater prosperity, economic mobility for the non-rich--are almost beside the point. As Milton Friedman wrote, "[F]reedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself."

We're accustomed to thinking of liberalism and conservatism as parallel ideologies, with conservatives preferring less government and liberals preferring more. The equivalency breaks down, though, when you consider that liberals never claim that increasing the size of government is an end in itself. Liberals only support larger government if they have some reason to believe that it will lead to material improvement in people's lives. Conservatives also want material improvement in people's lives, of course, but proving that their policies can produce such an outcome is a luxury, not a necessity.

Even if we confine our attention to the question of the optimum size of the government the issue is more complicated than Chait makes it out to be.  First, there is an issue of what is meant by the size of government, i.e. government expenditures, number of government regulations, nature of the regulations (administrative, criminal, civil), proportion of GDP collected by the government, etc. Second, liberals may also view government regulation as restrictive of freedom, and value freedom intrinsically. They may not view taxation as an interference with freedom –as some of the recent discussion of “it’s my money” and taxation shows. But they may.

Finally, if the issue is defined as simply size of government then, of course, for liberals that is not an end in itself. But if the issue is defined as something like the following—is it better that the poor be helped by private charity, or by contractual arrangements (self-insurance against poverty in retirement) , rather than collectively financed payments? —then this is not simply a matter of which system will do the job more efficiently. Liberals may believe that a society which collectively determines to provide this form of security is better (for that reason) than one which leaves it to individual charity or the prudence of its members.  In a similar fashion, some believe that it is better that blood be collected from volunteers rather than paid for—quite independently of whether such a blood supply is safer. All these judgments can be questioned. But one can also question whether freedom should be valued for its own sake. And Chait is wrong when he says “This preference for removing power from Washington is simply something that either you accept or you don’t.” It is harder to talk about what things should be regarded as ends in themselves rather than as means to accepted ends. But it can be done.

 

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February 23, 2005

What's Troubling Harvard

Elizabeth Anderson: February 23, 2005

The current troubles of President Summers remind me of a conversation I had with my dissertation advisor, John Rawls, nearly 20 years ago.  No two great Harvard scholars could be more opposite in intellectual temperament:  Summers the supremely arrogant; Rawls, the supremely modest.  (Whenever a student offered a misguided criticism of his work, Rawls would blame himself for not expressing himself clearly, rather than the student for failing to read him correctly.)  Yet even Rawls had a blind spot for Harvard's faults, which is shared by Summers today.  In that conversation long ago, Rawls told me of his recent visit to Oxford University, warning me not to accept an offer to teach there until I was securely tenured somewhere in the U.S.  Oxford was too obsessed with rank, he said, happy to treat the likes of him as royalty, but terribly snobby to not-yet-established scholars, who could expect to be treated shabbily.  While I appreciated his kind advice, it was almost too much to keep from laughing.  Here I was at Harvard, an institution that bent over backwards to make distinctions of rank invidious--even to the point, in those days, of putting their "folding chairs" (Assistant Professors on terminating 3-year appointments) on a common party line, instead of giving them the dignity of individual office phones!  (When I arrived at the University of Michigan to take up a tenure-track position after graduating from Harvard, the atmosphere felt so egalitarian by comparison that I felt like Orwell arriving in Catalonia.  My feeling didn't last, but neither did Orwell's.)

Now that the senior faculty have been getting from President Summers a dose of the humiliating medicine so many of them have happily doled out to the lower academic orders for decades, they are in revolt.  But is the revolt aimed just at restoring the prerogatives of rank undermined by President Summers' arrogance, or is it aimed at undermining the institutional arrogance of Harvard itself, so that it can undertake the critical and humbling self-examination it so desperately needs?  There is rot in the system, all right, but I fear that neither President Summers nor the faculty are jointly prepared to confront the full dimensions of it.  Consider some of the recent newsworthy events at Harvard:

1. President Summers berates Cornel West for grade inflation, supposedly declining scholarship,  and supporting Al Sharpton's campaign for President.  Professor West leaves in a huff for Princeton.  What's wrong with this?  Comments like this one on the substantive merits of Summers' opinion of West miss the point. Grade inflation is a serious issue well within the province of the President.  But it is ludicrous and demeaning to single out West on this count, given its pervasiveness at Harvard.  Systematic problems demand systematic and impersonal solutions, not arbitrary Presidential second-guessing of the grading patterns of individual faculty whom he holds in contempt.  The same point applies to concerns about scholarly productivity of tenured faculty members.  What may be a legitimate form of institutional accountability and standard-setting in an impersonal, publicly vetted, and universally applied system of rules becomes an imperious violation of academic freedom in the hands of a President who applies privately tailored standards at his personal discretion.  As for West's extra-curricular political activities, these are none of the President's business.  My concern is not only with contract feudalism (see here and here).  It's with political correctness.  Those who hailed Summers for taking down West, a supposed practitioner of political correctness, should have excoriated Summers instead, for presuming to dictate to faculty what political affiliations are correct for a Harvard professor to have.

2. President Summers, in the wake of criticism of Harvard's poor record of tenuring women in the sciences since he assumed office, suggests that women are innately deficient in high aptitude for these subjects and would rather spend their time having babies, and relegates hypotheses about sex discrimination and differential socialization to a distant third.  The issue here is not the legitimacy or possibility of exploring the hypothesis of innate sex differences in valued attributes and motivations.  Contrary to claims that feminist agents of political correctness have driven such research out of the academy, research into such hypotheses is active, as Lynn Sanders reminds us.  Nor did Summers' critics call for censorship of such research.  They did question the intellectual merits of Summers' selective consideration of evidence (see, for example, here).  Despite his avowals that he wished to be proved wrong in the relative weights he assigned to genetic and social causes, his rhetorical assignment of burdens of proof belies his prejudice.  The evidence is far from sufficient to shift burdens of proof for or assign relative importance to any of the hypotheses Summers considered.  But this is not the fundamental issue, either.  Research scientists are entitled to their biases, in the sense that science can't get underway without people willing to place their bets on sometimes controversial hypotheses as yet unproved, and can't succeed unless people are free to vigorously pursue such hypotheses even in the face of rival hypotheses claiming their own empirical support.  The issue is rather that Summers was not speaking as a research scientist in the fields in question.  He was speaking as the President of Harvard University.  In that capacity, Summers' deployment of his biases could not function in the fruitful way biases often function among research scientists.  They functioned instead as lame excuses for a poor institutional record of tenuring women.  (Lame, because they can't explain declining rates of tenure under Summers' leadership.)  A less arrogant Harvard would have borrowed a leaf from MIT, which subjected its own treatment of women faculty to empirical scrutiny, discovered problems, and took action to correct them.

3. Several Harvard-affiliated faculty have engaged in plagiarism, including Lawrence Tribe (Law School), Charles Ogletree (Law School), Ali A. Sultan (formerly of the School of Public Health), and Doris Kearns Goodwin (Harvard Board of Overseers).  {Alan Dershowitz (Law School) has also been accused of plagiarism, although he vigorously disputes the charge.)  In view of the rash of plagiarism cases, I wrote a letter to President Summers on October 7, 2004, arguing that the pattern suggested a systematic problem with the use of research assistants:

It would be ludicrous to suppose that the authors in question were trying to pass off, as their own, the published works from which they plagiarized.  These works were too famous to make that supposition credible.  Plagiarism of published works is but a symptom of wholesale plagiarizing of texts submitted by research assistants.  The offending authors failed to recognize that the passages from published works were not in their own voice, because their method of "writing" books by assembling and editing minimally referenced memos drafted by research assistants is inconsistent with having a voice. . . . Disciplining the offending faculty is not enough.  To prevent future violations of this sort, Harvard must review the roles of research assistants and lay down strict standards for how they may be used.  I suggest, for starters, that faculty be forbidden from using research assistants to draft any part of what they publish under their own names.

President Summers replied to my letter in November:

The University, as a matter of policy, does not comment on individual
reviews of the conduct of faculty members.  Rest assured, however, that we
take these matters very seriously.

The reply rather misses my point, which was not to inquire into the punishments meted out to individual faculty members, but to urge a change in a research culture that appears to facilitate these abuses.  When a pattern of abuse emerges, it's time for systematic change.  I'm still waiting to see whether Harvard can overcome its institutional arrogance, view itself clearly and critically, and adopt necessary reforms.

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February 22, 2005

oh those ridiculous feminists

Don Herzog: February 22, 2005

Mary Wollstonecraft's Vindication of the Rights of Women of 1792 produced all kinds of raucous and ribald jeers about the author's lack of femininity.  A political woman?  A woman who thought the status of women was a political problem, not a fact of nature or divinely mandated role?  Hmph.  As a young conservative, William Cobbett didn't think women should even read political pamphlets.  But write them?  Shudder:  it would desex the lovely ladies.  So in 1795 Cobbett pounced on the "well known fact" — it was false that writing and publishing the Vindication turned poor Wollstonecraft's hair white.  So too in 1833 the cranky Tory journal Fraser's asked, rhetorically, if women should write on politics.

Certainly not.  We feel a determined dislike of women who wander into these unfeminine paths; they should immediately hoist a mustache — and, to do them justice, they in general do exhibit no inconsiderable specimen of the hair-lip.

Director's cut:  we move to today's conservative columnists, assembled at townhall.  Conservatives, we know, cling to tradition.  Even, as it turns out, this unseemly one.  Those poor, misguided feminists, with their vain and frantic revolt against nature:  our columnists are happy to tut-tut them, all for the complacent pleasure of their readers.

In the runup to the election, Michelle Malkin assailed the "Sally the Sniveler[s]," the "Hysterical Women for Kerry," the "ultrafeminists who purport to speak for all women" who she thought were "an embarrassment to a nation at war."  Feminism is a contemptible luxury in a world wrestling with "Islamofascists."

In battleground states, the Kerry campaign has dispatched such incoherent nervous Nellies to scare the pantyhose off of young women and moms.

In those same weeks, Kathleen Parker explained why "security moms" were gravitating toward Bush.  Who knew she had such expertise in sociobiology?

When it comes to hearth and home, females vote their ovaries.  It's the nest, dummy.

On a deep-brain level, mothers want what they dare not utter aloud in a culture that pretends the sexes are the same.  They want a man to protect them and their helpless offspring.  And the alpha male will be recognized on a level too primitive to be measured by polls.

Oh, by the way, those tremors you feel?  Don't be alarmed.  It's just the hate-Daddy Metro crowd stamping their feet in protest.  This is not an unexpected response when long-buried truths bubble to the surface.  It will pass.  Sometimes they just need a nap.  Meanwhile, as campaign strategists try to paint a portrait of their candidate as the more intellectual, or the smarter strategist, or the morally superior man, or the more nuanced or the tougher hombre, they're missing the point. The real issue in the post-9/11 dating game is simple: Which is the truer man?

In the same vein, Suzanne Fields, scholar of feminine instinct, explained why Kerry's flip-flops drove women away:

Women find no greater sign of weakness in a man than a propensity to constantly change his mind.  Single or married, a woman wants to know exactly where the man in her life stands.  Kim Gandy, president of the National Organization for Women, admonished the senator for weakness on women's issues and told him that he must apply more "muscle" to the pursuit of the women's vote.  Women instinctively mistrust nuancy boys.

Poor effeminate Kerry, waffling and fickle instead of decisive.  I don't know if Fields meant her "nuancy boys" to play on "nancy boys," an old phrase for gay men, but, um, when's the last time you ran into "nuancy" as an adjective?  (It's not in the Oxford English Dictionary.)

Meanwhile, Phyllis Schlafly just weighed in on the debacle surrounding Lawrence Summers's comments.  "The feminists, who have no sense of humor," and their "orgy of indignation" were exemplary of the intransigent stupidity of today's campuses.

The cornerstone of the political correctness that dominates campus culture is radical feminism.  And the first commandment of feminism is:  I am woman; thou shalt not tolerate strange gods who assert that women have capabilities or often choose roles that are different from those of men.

Fraser's would have grinned at her conclusion:

When will American men learn how to stand up to the nagging by the intolerant, uncivil feminists whose sport is to humiliate men?  Men should stop treating feminists like ladies, and instead treat them like the men they say they want to be.

But first prize for a sniggering condensation of this distinguished tradition's treasured wisdom has to go to Mike S. Adams for crafting a "new disability claim" to an imagined human resources director.  (Yeah, the man does a better job playing these venerable riffs than the four women do.  Go figure.)  After being shocked by the "angry ranting" of a woman coworker complaining about her husband's erectile dysfunction, the poor guy developed erectile dysfunction of his own.  Why?  Because he kept encountering those grim and strident feminists.

In 2001, I was jogging on campus when I passed a group of feminists marching in the annual “Take back the night” event.  After they marched by me shaking their fists and screaming, I first experienced ED.  They certainly took back that night!

In 2002, I read the book “Intimate Reading” by a feminist professor in the English Department at UNC-Wilmington.  After I read the section about her losing her virginity at age 16 (told in graphic detail), I again experienced ED.

In 2003 (February), when campus feminists marched around stage chanting “vagina, vagina” during the Vagina Monologues, I experienced ED again.  Even worse, it happened to me on Valentine’s Day (which, by the way, is not known as VD)!

The columnists' advice is clear.  Troubled by feminists?  Just laugh them off.  Mannish or hysterical, castrating bitches or not, all these feminists are at war with nature, idiotically trying to change what can't and shouldn't be changed.  So no, don't rouse yourself from your dogmatic slumbers, your nap is just fine, nothing to worry about, roll over, go back to sleep, feminism is absurd.

The columnists sound just like Cobbett and Fraser's jeering at the likes of Wollstonecraft.  But here's the irony — and it's a regular irony of conservative homage to tradition in a world where society has been changing very fast for centuries now.  The last laugh goes to Wollstonecraft.  Women (and not just the poor women who always have) work outside the home.  Women vote.  Women run for office.  Women get elected.

Women even write on politics and a conservative website is happy to post their work.  And we don't sneer that their hair greys or that they sprout mustaches.  So yesterday's feminists, scorned by yesterday's conservatives as crazy radicals vainly struggling against natural necessity, created the very traditions that today's conservatives take for granted and even prize.

Today's feminists may be creating tomorrow's traditions; they may not.  (And I am the last person to imagine that history has a direction or a one-way ratchet labeled "progressivism" against which "reactionaries" rail in vain.)  Their ideas may be good; they may not.  (And let's remember that feminism, like any other ism, is a big tent.)  But brushing them aside as struggling against natural necessity, biology or providence, is hopeless.  That time-honored conservative tactic is just a way of sweeping real political issues under the rug, pretending we don't have a choice when we do.  Lots more can be said in particular cases:  should the legislature or courts be involved? or should the issue be left to private struggles over culture?  And so on.  But I reject the view that as a general matter today's gender norms are natural or necessary.

PS:  Far be it from me to try to control the gleeful chaos of the comments on this or any other thread.  But astute readers will notice that they are not beginning to respond to anything I've said here if they inveigh against what they take to be feminist lunacies.

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February 18, 2005

atheists need not apply

Don Herzog, Herzog: "A Christian Nation?": February 18, 2005

Should a Christian nation impose a religious test for holding public office?  It's the ultimate in ecumenical or latitudinarian generosity:  just require officeholders to declare their belief in God.  Then you could confidently invoke the label Judaeo-Christian, without the fumbling I've noted before.  Hell, you could admit Muslims and others, too.  (Okay, so Buddhists would have a grievance.  Boy it's hard for a Christian nation to please all the other religions.  But let that go for now.)

Alas, the federal constitution rules out such oaths in Article VI, cl. 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

But we have dual citizenship:  you're a citizen of your state and a citizen of the nation.  So does federalism leave room for your state to impose religious tests?  Some states rule out such policies.  Since 1859 that's two years before it was even a state   § 7 of the bill of rights of Kansas's constitution has said this:

The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship.  No religious test or property qualification shall be required for any office of public trust, nor for any vote at any elections, nor shall any person be incompetent to testify on account of religious belief.

West Virginia's constitution (Article III,  § 15)  takes a similar line:

No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever; nor shall any man be enforced, restrained, molested or burthened, in his body or goods, or otherwise suffer, on account of his religious opinions or belief, but all men shall be free to profess, and by argument, to maintain their opinions in matters of religion; and the same shall, in no wise, affect, diminish or enlarge their civil capacities; and the legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this State, to levy on themselves, or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry, but it shall be left free for every person to select his religious instructor, and to make for his support, such private contracts as he shall please.

I don't suppose anyone imagines that Kansas or West Virginia are bastions of bigoted atheism or secular humanism.  That would be nonsensical.  So what are they up to?

Their constitutions follow the classic liberal recipe:  make the state blind to the religions, or lack of religions, of its citizens, and you do two fabulous things.  One:  you promote equality of citizenship.  No, not by levelling or homogenizing.  Not for the first time on this blog, I note that liberal equality has nothing to do with the right's frequent scarecrow objections about envy, resentment, and the like. Instead, equality here means ignoring irrelevant facts — and it was a fabulous historical accomplishment, where "fabulous" means both magical and excellent, to pull that off.  Everyone used to take it for granted that of course your religious identity was politically salient, of course it was the business of the state to worry about such matters.  Two:  by getting the clumsy and coercive paw of the state out of the matter, you leave religion free to flourish.  I'm happy to hazard the historical generalization that countries with religious toleration and states that refuse to tinker with establishing churches have more vibrant religious communities than countries without such benign policies.  And I'm happy to count the modern USA as Exhibit One.  So hip hip hurray for Kansas and West Virginia!

But then there's Arkansas.  And South Carolina.  And no doubt others, too.

Article 19, § 1 of Arkansas's constitution provides:

No person who denies the being of a God shall hold any office in the civil departments of this State, nor be competent to testify as a witness in any court.

In 1961, the Supreme Court unanimously struck down a similar provision of Maryland's constitution.  That action was brought by a man appointed as notary public who was refused his commission when he refused to declare his belief in God.  Decades later, two citizens of Arkansas, not elected or appointed to public office, challenged their state's provision.  But the 8th Circuit ruled (Flora v. White, 692 F. 2d 53 [1982]) that they didn't have standing.  That was probably the wrong call on the standing issue:  federal law does extend standing to taxpayers when there are dignitary harms under the establishment clause.  But even so the court dropped a footnote agreeing that the state constitutional language probably couldn't be squared with the Supreme Court's ruling in the Maryland case.  As indeed it can't.  There's no doubt that the Arkansas provision is unconstitutional.

So I'm surprised that no one with a better claim to standing has challenged the Arkansas provision since then.  But Arkansas isn't alone in having its constitution festooned with such a blatantly unconstitutional religious test.  Article VI,  § 2 of South Carolina's constitution says this:

No person who denies the existence of the Supreme Being shall hold any office under this Constitution.

For citizens who might have dozed off during that part, Article XVII,  § 4 says:

No person who denies the existence of a Supreme Being shall hold any office under this Constitution.

I'll leave the more theologically minded to puzzle over the difference between the indefinite and definite articles.  Both clauses were struck down by a state court in 1997 (Silverman v. Campbell, 326 S.C. 208).  Both remain on the books.

Does it matter that some state constitutions still have such language?  You bet.  Imagine how we'd react if Alabama's constitution still said what it said in 1819:

The General Assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated.

It wouldn't be good enough to shrug and say, "well, anyway, it's not enforceable any more."  Nor could you try the threadbare defense of the Confederate flag:  "it stands for Southern pride and tradition, not racism or slavery."  And don't bother pointing out that most people have no clue what their state constitutions say.  That's true, but hardly decisive.  We'd want the Alabama language off the books, pronto.

So too Arkansas, South Carolina, and whatever other states echo them should get rid of their unconstitutional disqualification of atheists.  The state shouldn't be in the business of stamping unbelievers as second-class citizens.  And no one should flirt with the idea that if the state repeals these religious tests, it's taking a stand against religion.  What?  You think there are no churches, no synagogues, no mosques, in Kansas and West Virginia?  Or are you going to tell me with a straight face that without a constitutional seal of approval, they'll wither and die?  Do you think I've done religion any damage by publicizing the dirty little secret of what those state constitutions say?

Sorry, but I won't buy shares in the Brooklyn Bridge, either.

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February 15, 2005

free speech and democracy

Don Herzog: February 15, 2005

Judging by the latest poll, American high school students don't believe in free speech.  They don't believe we actually have a right to it and they don't believe we should.  Only 51% agree that "Newspapers should be allowed to publish freely without government approval of stories."  75% wrongly believe that the law bars burning the flag as a means of political protest, and almost as many think that's a good thing.

Not that their elders are all that different.  The First Amendment Center has been polling for years.  Their evidence shows lackadaisical support for free speech even before 9/11.  In June 2004, 36% of adult respondents thought we have too much freedom of the press, after being prompted with the claim that the first amendment protects that freedom but sometimes the government restricts it.  Since 1999, that figure has jumped around from 31% to 40%.  Vary the question wording by eliminating the prompt and cutting directly to whether the press has too much freedom to do what it wants, and the results over the same years range from 42% to 53%.  Variations in response due to apparently innocent changes in question wording are business as usual, and public opinion scholars rightly worry about them.  But here it's safe to say that an explicit reminder of the first amendment moves opinion only a bit.  Another angle into the same question:  prompted with the thought that there's a debate about press freedom and censorship, 49% last year said that there is too much press freedom.

The bleak news continues.

Year after year, around half disagree, most of them strongly, with the claim that "People should be allowed to say things in public that might be offensive to religious groups."  Larger majorities disagree, again most strongly, that "People should be allowed to say things in public that might be offensive to racial groups."  Sizable majorities disagree, most strongly, that public school students should be permitted to wear t-shirts with messages others might find offensive.

The Chicago Tribune (7/4/04) reported more such poll results.  20% said the media should not "be allowed to publish or broadcast news stories that suggest war is not going well."  (I suspect the paper dropped the definite article, and asked people about "the war," not "war" as a general matter; but that's what they published.)  20% said the media should not "be allowed to publish or broadcast editorial opinions critical of how the war is being handled."  Excuse me, what country is this?  Compare:  Ria Novosti (10/29/04) reported that 29% of Russians believed state control of mass media would be useful.  But Izvestia (7/28/04) reported that 71% of Russians wanted media censorship.  Yeah, we're doing better than Russia.  Somehow I don't find the comparison all that consoling.  As a stirring slogan, "Better somnolent than ex-red on civil liberties!" lacks a certain something.

One last poll result from the First Amendment Center.  A sizable majority of adults rate the American educational system as doing only a fair or poor job in teaching students about the first amendment.  Amen to that.  Do you want the schools to teach "values"?  Are you invested in the commotion over Heather Has Two Mommies?  Ready to go to the wall for prayer in public schools?  Fiddle, fiddle, burning Rome, fiddle.  There are "values" I'm much more interested in.  Our children need to learn the basic ground rules of liberal democracy.  They need to see what's at stake in casting that system as "government by discussion," in Bagehot's fine phrase from 1872.  Our representatives chatter, we chatter, we chatter with our representatives, and out of all that chatter — some of it heated, some of it trenchantly critical — we work up more intelligent views.  So much the worse for democracy as preference aggregation, the view Richard Posner adopts, yet another debased form of market fundamentalism.

To the extent that we chatter only with the like-minded, we can't make progress.  Political controversies should be civil enough for the parties to keep engaging, but if civility means never giving offense, we'll drown in stupid pieties. Our children need to learn that toleration and respect for others are perfectly compatible with robust debate.  Yes, I want them also to have room to critically scrutinize whatever story they're told about politics.  True story:  in third grade, I solemnly wrote in my notebook that capitalism was good and socialism and communism were bad.  I had no idea what any of that meant, and my teacher sure wasn't going to tell me.  But I duly memorized it for the social studies exam.  That was worse than pointless.  Another true story:  in eighth grade, I was hustled off to the principal's office for asking a perfectly polite but critical question of the state representative who showed up to address a small assembly.  How I had embarrassed the school!  But I didn't think we were supposed to kneel in the presence of elected representatives.

Then too these dispiriting poll results make me further skeptical of the usual rap that universities have sunken into a morass of political correctness.  I've already insisted that universities should be more diverse, though I also think the familiar indictment about PC nonsense is much exaggerated.  But the adults condemning "offensive" speech in these surveys aren't university students and I rather doubt they're clinging to whatever pablum about multiculturalism you think they were fed in their dorms freshman year.  Looks like the rot has set in deeper and wider than campuses.

Political scientists have long known that American public opinion shows indifferent support for civil liberties — and that what abstract support there is for freedom of speech melts away when people are asked specific questions about, say, radicals giving lectures in public parks.  They've assured us, though, that we can count on "elites" to safeguard liberal principles for us.  I've long thought that bunk.  A democratic country can't flourish by relying on courts and politicians.  And it's been quite some time since we could rely on those "elites" for robust support of free speech, anyway.

There's more to free speech than whether the government engages in censorship.  Campaigning in 1984, Ronald Reagan remarked,

I think that the current leadership of the Democratic Party, the leadership that we saw last week in San Francisco I think their instructions for getting to the convention were:  Go west to San Francisco, and then turn left.  They've gone so far left that they've left the mainstream.

Walter Mondale, beyond the pale?  Oh please.  It's crucial that contenders in liberal democracies respect the role of a loyal opposition.  So it's worse than worrisome that popular commentators cash in by trampling on that respect.  Anne Coulter flouts that norm when she writes,

Liberals promote the right of Islamic fanatics for the same reason they promote the rights of adulterers, pornographers, abortionists, criminals, and Communists.  They instinctively root for anarchy against civilization.  The inevitable logic of the liberal position is to be for treason.

And Michael Moore flouts that norm when he writes in an open letter to the president,

As Bill Maher said last week, how bad do you have to suck to lose a popularity contest with Saddam Hussein?  The whole world is against you, Mr. Bush.  Count your fellow Americans among them.

Does free speech mean that Reagan, Coulter, and Moore have the right to talk this way?  Absolutely, if that means it would be outrageous for the government to try to sanction them.  But they are still damaging liberal democracy, making a mockery of government by discussion.  Their language isn't sharply focused criticism of anything in particular.  It's mere invective, designed to banish the opponent from public discussion.  The more shrill, the more polarized, the more contemptuous the public debate, the less we can listen to and learn from each other.  Yes, politics is a continuation of war by other means.  And yes, it's always easy to claim that the other guys started it.  And yes, the line between hard-hitting argument and hitting below the belt is sometimes hazy.  But if you permit yourself a secret — or public — snicker when "your" side gets off a good sharp nasty salvo of contempt, or if you fasten on the "other" side's nastiest rhetoric and refuse to hear what else they're saying, you're part of the problem, too.  The cleavage that matters here is not left/right.  It's the one between those of us intent on keeping political debate constructive and those engaged in hurling mud.  On this issue — not how radical our views are, but how stridently we support them I'm inclined to quip:  extremism in the pursuit of moderation is no vice.

But hey! Janet Jackson exposed her breast on TV!  What's become of our values?  Yup, TV is trash.  Fiddle fiddle.

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February 12, 2005

Deja Vu all over again

Gerald Dworkin: February 12, 2005

I highly recommend, both as entertaining and informative, Corrupting the Youth by James Franklin. It is a history of philosophy in Australia. In light of recent developments it is interesting to read of the attacks on John Anderson who was a highly influential and (in his youth) radical Professor of Philosophy at SydneyUniversity. He attacked traditional religion, the idea of King and Country and said that war memorials were idols. 

He was attacked on the floor of the New South Wales Parliament in these terms: “…when a man stands up and traduces in unbridled terms institutions that are revered, and that appeal to the highest sentiments and the noblest motives in the community, he transgresses the reasonable bounds of propriety and all the canons of decent conduct.”

 The University Senate censured Andersonfor using “expressions that transgress all proper limits” and required him to abstain from such utterances in the future. Needless to say he did nothing of the sort and upon entering his logic class to sustained applause said, “I will not insult the intelligence of this class by asking it to put the Senate’s resolution into logical form.”

Update:  Some readers have asked me where to get this book.  I don't know whether it is on sale in the US. It is not on Amazon for example.  It was published in Sydney by Macleay Press.  Your best bet is a good university library.

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February 11, 2005

bait and switch

Don Herzog: February 11, 2005

In November, Michigan voters joined the stampede and adopted Proposal 2, amending the state constitution by adding Article 1, Section 25:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

I was opposed, because I'm strongly in favor of gay marriage.  But I also suspected that the legal force of that tangled wording especially that funny last phrase, "or similar union for any purpose" would forbid public employers from according domestic partnership benefits to gay and lesbian couples.  Something fishy, I thought, was going on.

A few of us here in Michigan worried aloud about partnership benefits, but champions of the proposal pooh-poohed the worry.  From The Detroit News, with its usual errant grammar, 10/27/04:

    Citizens for the Protection of Marriage, the group that ram-rodded the petition drive to get the issue on the ballot, said it is not focused on benefits or discrimination.  Members don't want same-sex marriages validated here like judges and politicians have done in Massachusetts and California.
    "This is about defining marriage of one man and one woman," said Kristina Hemphill, of Southfield, a communications director for Citizens for the Protection of Marriage.  As for people losing benefits, "nothing that's on the books is going to change.  We continue to confuse this issue by bringing in speculation."

The Roman Catholic Church insisted the measure was about protecting marriage and was silent about domestic partnership benefits.  From The Washington Post, 10/28/04:

    Detroit Cardinal Adam Maida urged Michigan's 2.25 million Catholics, nearly a third of the state's registered voters, to pass the amendment in an eight-minute videotape that every Catholic church in the state was strongly encouraged to show during Sunday services this month.
    "From the beginning of human memory, marriage has always been understood as the union of one man and one woman," Maida said on the tape.  "Let us do our part here in Michigan to preserve that sacred understanding and definition of marriage."
    The Michigan Catholic Conference also sent an Oct. 15 letter and a brochure titled "Between One Man and One Woman" to all 596,000 registered Catholic households in the state.  And Michigan's seven Catholic dioceses contributed $500,000 to Citizens for the Protection of Marriage, about half the war chest of the umbrella group pushing for the amendment.

Looks like this is the brochure, with not a word about benefits but with an assurance "that every sign of unjust discrimination should be avoided."

Before the election, The Thomas More Law Center, "a not-for-profit public interest law firm dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life," already had sued Ann Arbor's public schools to try to force them to stop providing domestic partnership benefits to gay and lesbian couples.  The county circuit court ruled that the parties they assembled had no standing in the matter and the case went up to the state Court of Appeals.  Now the Center is urging that the new constitutional amendment strengthens their case.  Federal law generally frowns on taxpayer standing, but in these matters Michigan doesn't (see MCLS § 600.2041).  I claim no insight on the legal merits of the action.  But I don't see how "family values" are threatened by domestic partnership benefits.  And I will say that the lawsuit seems repulsively meanspirited, the very opposite of Christian charity.

What groups have protested the Center's lawsuit?  Round up the usual suspects:  the Michigan Educational Association and the ACLU.  Citizens for the Protection of Marriage and the Roman Catholic Church have fallen suspiciously silent.  Nor have I heard a whisper from the American Family Association of Michigan.  A week before the election,  Association president Gary Glenn declared that the proposal was all about marriage.  From his 10/24/04 op-ed in The Detroit News:

    Now that the issue of marriage has been forced onto the table, someone will decide. The only question is who.
    In Massachusetts, it was four judges.
    In Michigan, it will be four million voters including you.
    If Proposal 2 fails, Michigan's marriage laws will remain unprotected and vulnerable to the agenda of activist judges, politicians, and constant pressure for change from activist groups and the media.
    If Proposal 2 is approved, one-man, one-woman marriage will be safely secured in our constitution, protected from legal challenge.

A week after the election, Glenn changed his tune.

Many citizens of Michigan were opposed to gay marriage.  Many others thought it not the sort of issue courts should decide.  I don't think many supporters of Proposal 2 thought they were supplying legal ammunition to those trying to block domestic partnership benefits.  But that's what they did.

You might point out that the supporters I've quoted aren't responsible for what the Thomas More Law Center decides to bring to court.  You might say that I've no evidence that the supporters have even communicated with the Center.  So talk of a vast right-wing conspiracy, or a measly one, would be entirely premature.

Sure, but there's a smoking gun in the case, right in the language of the amendment.  All those supporters knew that Proposal 2 had oddly tangled wording and that funny last phrase, "or similar union for any purpose."  I don't know who drafted the language, but groups don't spend hundreds of thousands of dollars supporting a constitutional amendment without getting expert legal advice on what that amendment would do.  And had the only point been to save traditional marriage, the language would have been much more straightforward.

So the public got sold a bill of goods.  The duplicity is contemptible.

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February 10, 2005

Adventures in Contract Feudalism

Anderson on Political Economy, Elizabeth Anderson: February 10, 2005

Gerald Dworkin's mention of the employer who banned his employees from smoking on or off duty illustrates the problem of contract feudalism, which I had raised in an earlier post.

"Commerce and manufactures gradually introduced order and good government, and with them, the liberty and security of individuals, among the inhabitants of the country, who had before lived almost in a continual state of war with their neighbours and of servile dependency upon their superiors. This, though it has been the least observed, is by far the most important of all their effects."

That's Adam Smith, in The Wealth of Nations (III.4.4), contrasting the feudal economic order with the emerging industrial order of the towns.  Under feudalism, wealthy landlords employed hundreds of retainers, servants, and tenants who depended on them for subsistence.  The price of dependence was servility: the duty to obey any arbitrary whim, however humiliating, called out as an order to them by their lord.  Commerce and manufactures liberated individuals from such abject servility, by enabling people to live off sales to thousands of customers instead of one master.  It enabled large numbers of people to enjoy personal independence for the first time.  This was "by far the most important of all" the effects of commerce and industry:  not economic growth, not efficiency, but the growth of personal independence from servility to masters (along with "good government").

Of course, matters were different for wage laborers than for independent shopkeepers and craftsmen.  Wage laborers did have to obey an arbitrary master on the factory floor.  But two features of industrial life tempered the humiliations of the factory regime.  The first was the profit motive.  Self-interest and pride are distinct motives, and sometimes come apart.  Under pressure of competition, the pleasures of ordering around and abusing inferiors just to swell one's pride had to take a back seat to productive efficiency.  And as Max Weber reminds us, publicly verifiable claims to efficiency legitimate the exercise of authority, reducing the sting of the obligation to obey through its service to an impersonal goal.  We should not make much of this factor in the early phases of industrialization, when wage laborers were in too weak a position to hold out for decent treatment.  But it was eventually to have its effects, especially with the advent of labor unions, one of whose critical functions on the factory floor has been to guard the dignity of workers against bosses who see their authority as an opportunity for the indulgence of pride.

The second, more important feature of industrial life that promoted the personal independence of workers from their employers was the separation of work from the home.  However arbitrary and abusive the boss may have been on the factory floor, when work was over the workers could at least escape his tyranny (unless they lived in a factory town, where one's boss was also one's landlord and regulator of their lives through their leases).  Again, in the early phase of industrialization, this was small comfort, given that nearly every waking hour was spent at work.  But as workers gained the right to a shortened workday--due to legislation as well as economic growth--the separation of work from home made a big difference to workers' liberty from their employers' wills.

Nevertheless, to the extent that this liberty is secured by competition for workers and convention alone, rather than by legal right, it is vulnerable to invasion.  This is the lesson to be drawn from the story of Howard Weyers, the president of Weyco, a firm in Okemos, Michigan.  According to the New York Times (Feb. 8, 2005, p. C5), Weyers banned smoking by his employees not just at work but anywhere else.  Now they have to submit to nicotine tests as a condition of holding their jobs.  Four employees have quit rather than suffer this invasion of their privacy.

Weyers claims that he is simply trying to keep health insurance costs down, since smokers cost more to insure.  Such a rationale could just as easily be used to justify taking daily sperm samples from female workers to control their sexuality, on the ground that sex with multiple partners puts them at risk for expensive STD's.  In any event, not just efficiency but personal pride was at stake for Weyers, who once coached college football.  "I spent all my life working with young men, homing them mentally and physically to high performance.  And I think that's what we need to do in the workplace," said Weyers to the Times.  He wants to relive his glory days as a coach to late adolescents and young adults, enjoying the power and adulation of that role.

It doesn't have to be this way.  Thirty states (not including Michigan) protect workers from being fired for smoking off the job.  The issue here is not a "right to smoke."  Smoking is hardly such a core liberty interest that it could deserve dignification in the form of an inalienable right.  Rather, it's the right to conduct one's life outside of work independently of one's employer's arbitrary will.  It's the right not to be subject to contract feudalism.  Or, as Anita Esposito (one of the Weyco employees who quit rather than take the drug test) put the point, "it had nothing to do with smoking.  It had to do with my privacy in my own home."

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