A Very Good Week

It's been a very exciting week here--quite possibly, the best of my life. Three exciting pieces of news:

1. I'm now officially co-writing a paper on public reason in the philosophy of John Rawls (for my quick take on this, see my prior post). (I'm not going to out the co-author here because, unlike me, he has a reputation to protect and is taking a risk on a project with me outside any area of my special expertise; if I turn out to be a sub-par co-author, I wouldn't want him to be embarrassed by the association.)
   
   
   
2. My law review Note is finally in print. I'll blog about the Note some other time; the Note takes up the constitutionality of a (hypothetical) mandatory dialogic ethics curriculum as against religious objectors. The article is titled "In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights." The cite is 70 Ohio St. L.J. 1565 (2009) (volume no. 6). I plan to post a copy on SSRN before long and link to it here.
   
   
   
3. I was accepted into an LL.M. program at NYU. I was accepted into NYU's pioneering "Legal Theory" program, and, needless to say, I'm absolutely thrilled. I proposed and plan to complete a thesis on the ethics of plea bargaining. Also something I should blog about here at some point.
   
   

The downside of all this excitement is that at one point this week I was working on one hour of sleep in 38 hours. (Apologies to anyone who got messages or email from me towards the tail-end of that time.) Still, I'll take it; this has been a pretty exciting seven days.

On Rawls and Why I Think "Public Reasons" Aren't Great

A friend recommended an essay on some aspects of John Rawls’s political theorizing; unfortunately for me, this is a topic I’ve pretty much only previously encountered in the haphazard manner of someone who’s sort of been around contemporary analytic philosophy for a (very) little while, but hasn’t done anything serious with mainstream political philosophy, except, maybe, take a cursory read of a general introductory text, most of which was immediately forgotten. Fortunately for me, however, the essay itself contained a useful précis of the relevant high-points of Rawls's theory as it related to public discourse in a liberal society. (By “public discourse,” I just mean political discourse devoted to giving reasons and justifications for this or that policy. Rawls thought—correctly, it seems to me—that this sort of discursive practice was highly desirable in any liberal society of equal citizens.) So, from that account: critically, Rawls emphasized the importance—necessity, in his view—of only conducting public discourse in terms of “public reasons.” Without getting technical (since I’m only an inch-and-a-half deep here anyway), a “public reason,” basically, is just a reason or concept that is a) reasonable, and b) (thus?), capable of appealing broadly to different groups of “doctrinally plural” citizens, i.e., citizens with different and incompatible substantive views of the moral or the good, or “comprehensive doctrines” for short.

As best I can tell, Rawls meant to keep fundamental disagreements—disagreements between different “comprehensive doctrines”—from polluting the public square. I use the word ‘polluting’ advisedly here and will expand in a bit, but I think it roughly conveys an intuitive sense of Rawls’s basic worry. In fact, if my loose (second-hand) read is correct, then Rawls’s concern is one which finds expression by many different theorizers and would-be theorizers of political discourse. Think, for example, of the (annoyingly incessant) calls for “bipartisanship”: one tempting way to cast this call, at least some of the time, is as an expression of a hope that people will transcend their particular comprehensive doctrines and articulate “public reasons” of broad appeal, leading to joint action of a sort that eschews splitting fundamental differences in an unprincipled way. As a second, even looser, example: consider the backlash against the New Atheists coming from many quarters. (It’s too late as I write this to provide very particular examples, but I do have Karen Armstrong in mind, although no particular piece of hers.) The New Atheists are attempting to forge a public debate over certain “fundamental” viewpoints and doctrines; against this stand those who viscerally regard this very attempt as the essence of social poison. (Dan Dennett sort-of writes about this reaction in Breaking the Spell.) One can almost imagine the opponents of New Atheism saying, with Rawls: "the New Atheists are mucking up public discourse by dragging “comprehensive doctrines” out into the open and then subjecting those doctrines to hard-nosed concepts like truth, purely “public reason” be damned. Shame on them!"

However, for myself, it is not at all clear that this motivation— to avoid exposing fundamental disagreements in public discourse—is a good one. Such a motivation is explainable in a number of ways, none of them (that I can tell) particularly praiseworthy. Consider, as explanations:

1. Moral cowardice. This would be the desire to avoid confronting serious moral issues because the confrontation itself may be unpleasant. I admit that this is a real psychologically-basic motivation; but it deserves little respect as an independent matter. After all, sometimes the unpleasant thing is the right thing.


2. A bare unwillingness to face the hard truth that living together with those who have different fundamental viewpoints will sometimes be unavoidably hard. This is a species of wishful thinking, although understandable enough. We’re social creatures who hope to always get along, and it is unpleasant to face the fact that not-getting-along might be unavoidable after all. Nevertheless, this hope shouldn’t blind us to the alternate possibility (*cough* eventuality *cough*) that living together in society might just sometimes be hard.


3. An undue skepticism of the possibility of fruitfully treating “fundamental disagreements” in their own terms. It is undoubtedly true that there are viewpoints and perspectives which are incompatible one with another. But, it is also true that people can change their views, and so the fundamentality of “fundamental disagreement” is something less than strict logical necessity in one very relevant sense. (The sense in which people actually have and act on these incompatible views.) This means that there is conceptual room to allow that conversation or confrontation, of some type, under some conditions, could lead to fruitful outcomes in fundamental disagreements. (Define ‘fruitful’ however you like here.) Admittedly, changing minds is hard work; and there are doubtless better and worse ways to conduct conversations involving fundamental disagreements. But these aren’t reasons to eschew the attempt, or, worse, to skeptically insist in advance that the attempt must be hopeless.


4. The fear that discourse in terms of non-public-reasons will lead to tyranny and imposition of one group by another. The fear of tyranny and imposition just is the fear of the end of liberal society. Such was arguably the fear of John Locke, and I think this fear was evident on Russell Blackford’s part in some recent stuff of his (and you’ll find me arguing over some of that stuff on his blog – it’s too late to find the link, but it’s a few recent posts down). I suspect, again second-hand, that this is probably the basic fear of John Rawls as well; in articulating conditions of truly liberal political discourse, he means to avoid practices which, of their nature, are anti-liberal. But, to the extent that the worry here is not just a more sophisticated version of the skepticism identified in 3) above, why should I think there is any necessary connection between a) offering non-public-reasons and b) tyranny? In fact, where we have in place, and are not afraid of losing, baseline protections against tyrannical imposition (as with Constitutional protections enforced by the Supreme Court), the connection breaks down. And as long as the connection can break down, then why isn't the point simply to make sure, as a matter of particular practice, that it does? (There is no need for grand pronouncements.)

All of that to say, in a roundabout way, that I am skeptical about the necessity (in light of our interest in preserving liberal society) of the “public-reasons-only” rule for political discourse. Certainly, to the extent that any public speaker cares about his immediate rhetorical effectiveness, and making a broad case, he’d be well-advised to appeal to public reasons. But this is just a rhetorical consideration which amounts to something less than a fundamental condition of any truly liberal order.

In fact, however, I think the “public-reasons-only” rule for political discourse carries with it its own particular risks: the risk of not knowing the real reasons, motivations, and viewpoints of one’s fellow citizens. Unless one thinks that real people can purge themselves of their substantive commitments when acting or speaking qua citizen, the sublimation of these commitments does a real disservice. It makes it harder to know what you’re up against, for one thing--and thus whoever you are. It makes it harder to meet the real concerns of your fellow citizens, if you are concerned in that direction. It makes the hard work of democracy--convincing the guy next to you to change his mind--very much more difficult. And in the case of actors with underlying illiberal philosophies who have nevertheless managed to internalize the “public-reasons-only” rule (by being largely silent, no doubt), it probably gives you a somewhat false sense of the security of your liberal state.

Yes, Virginia, the New Health-care Law IS Constitutional

With the recently passed health-care reform now signed into law, a number of states are suing to block implementation of the statute. Having read neither the bill, nor the filed lawsuits, nor possessing any special expertise in Constitutional law,* I thought I should jump in-

This report from ABC News gives some flavor for the constitutional objection, or one of the main objections, anyway. Under the new law, every financially-able person will be required to purchase health care insurance, or else face a penalty in the form of a tax. Objecting to this scheme, Tim Pawlenty (Republican governor of Minnesota) says-

"[T]his does look like an unprecedented overreach by the federal government forcing indivual citizens to buy a good or a service for no other reason than they happen to be alive or a person. That seems to be unprecedented..."

Off-hand, aside from the question-begging use of the term "overreach," I think Pawlenty is right. I can't recall any other attempt to make people buy a good or service independently of obtaining a license or some other government privilege. The mandate to purchase insurance is unprecedented, as far as I can tell.

But, that being said, I don't see why the lack of precedent should be enough to condemn the scheme on Constitutional grounds. The Constitution grants the federal government the power to regulate commerce, and to tax, and to do anything "necessary and proper" to carry into effect those other powers. These constitutional provisions have long been interpreted broadly; with regard to the Commerce Clause, particularly, the only activity which doesn't fall within its ambit is purely local activity having no significant effects (when aggregated with like activity) on interstate commerce. Whatever might be the outermost limits of Commerce Clause power, the activity in question here, especially when aggregated, surely has massive effects of interstate commerce. (Just think of all of the business and economic activity connected with insurance and medicine.) As such, the regulation of that activity squarely meets constitutional muster, and the courts should reject any invitation to view themselves as the arbiters of just how economic activity ought to be regulated.

Perhaps unfortunately, perhaps not, the fact remains that there just is no general constitutional privilege against being regulated in ways you don't prefer. Faced with an "overreaching" law, otherwise within the constitutional grant of power to the federal government, the remedy is political.

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* - Except, maybe, with regard to some narrow First Amendment questions.

A National DNA database?

Would it be an infringement of your interest / right in personal privacy if your DNA was catalogued in a national database which existed for the purpose of solving crimes? (Such a proposal is found here.) Do you fear for your "sensitive genetic information"? (Do you think there is any such thing?)

I'm inclined to think that a national DNA database would not necessarily infringe any privacy rights. Because I don't think anyone really cares about their genetic code as it would be used by law enforcement, I don't see that there is much to object to so long as we are sure that the intended use remains the only use. Basically, DNA for law enforcement functions as a kind of super-fingerprint -- and I take it that nobody considers themselves to have a privacy interest in their fingerprints, no matter how unique.

I could imagine abuse of a DNA database, of course. For example, if the DNA database was used to "out" individuals with genetic conditions which the individuals would rather not have made public, that would be a real harm. Still, this abusive scenario strikes me as unlikely, and, at any rate and in principle at least, careful planning and security measures could prevent this harm.

In which case, I guess I'm inclined to endorse the idea of a national DNA database, especially if there were sufficient security measures in place to prevent misuse. Such a database would probably do some good, while doing little (if any) harm.

minor update on Westboro Baptist case

As I speculated in the prior post, it appears that Margie Phelps indeed will be the person arguing on behalf of the Westboro Baptists in front of the U.S. Supreme Court. Shirley Phelps, Margie's sister and a church leader, indicated as much in this report. It is unusual, as far as I know, for a hate group to essentially represent itself before the Supreme Court in this way. And Margie is indeed a full-fledged member of her father's sick little cult.

If the brief in opposition to certiorari is any indication, Margie may use the opportunity in front of the Justices for some incidental proselytizing. From that brief:

WBC’s picketing has spanned nearly twenty years, starting in early 1991, and has addressed the morality of this nation and the consequences of proud institutionalized sin, including homosexuality (including same-sex marriage), fornication, adultery (including divorce and remarriage, called adultery by the Lord Jesus Christ), murder (especially of unborn babies), greed, and idolatry.

Let's hope this is not necessarily a sign of things to come; it would be a serious pity for a major First Amendment decision to lack the benefit of first-rate counsel. Although there will be top-notch amicus briefs, no doubt, one would like to be sure of a certain (high) quality of advocacy from the parties themselves.

Westboro Baptist Church Case Goes to the Supreme Court

Here's a case to watch: the Supreme Court will be hearing the appeal in the suit against the infamous Westboro Baptist Church for tastelessly picketing a soldier's funeral. (The soldier was Matthew Snyder; a jury granted Mr. Snyder's family a multi-million dollar verdict on claims of intentional infliction of emotional distress, and others, before the Fourth Circuit reversed the jury award.) The key question on appeal is whether the Westboro Baptist Church has a First Amendment right to its protest, however tasteless. If they do have such a right, then, one presumes, the Fourth Circuit properly dismissed the case; otherwise, the jury verdict is back.

Interestingly, appellee's attorney in the case is Margie Phelps, daughter of Fred Phelps (Fred Phelps is the leader of the Westboro Baptist Church), and herself apparently a member of the church.

After skimming the appellant's petition for certiorari, my initial judgment is that the Phelps have the better of the First Amendment argument. Of course, a cert petition is not a merits brief, and one would expect that the brief will be better at advocating a substantive position. Still- there are arguments or proto-arguments in the cert. petition worth commenting on, and so, with five minutes reflection and the disclaimer that I AM NOT AN EXPERT HERE BY ANY STRETCH:

1. The appellants argue that the Westboro protest interfered with their rights to peaceably assembly and exercise their religion (and thus their suit against the protestors was proper). This argument strikes me as a non-starter: there is nothing in the rights of assembly and free exercise, as such, that creates correlative duties in other private individuals not to interfere (and in just any way?). The liberties of assembly and free exercise are enforceable against the government, not private parties. So then the analytically key question is about the extent of the protestors's First Amendment free speech rights, which will need to be addressed in their own terms, and not via proxy in a discussion about other rights. Secondarily, there is the (big) problem of line-drawing: assuming hypothetically that the rights of assembly and free exercise do invest (all?) private others with correlative non-inteference duties, what counts as "interference" for the purpose of delimiting this right? What if the Westboro Baptist Church protestors had just quietly assembled, with no signs? What if they had less offensive signs? What if they held a candlelight vigil? What if they had assembled in support of the soldier but nevertheless caused an interfering traffic jam?
   


2. The appellants might have an argument that the protest was conducted in such a disruptive manner so as not to be constitutionally protected for that reason. (But this gets complicated fast; see my third point below.) But even supposing this (and this is an argument that, as presented in the petition, raises the spectre of the "heckler's veto" in my mind), to the extent that the underlying lawsuit was predicated on the offensiveness of the content of the speech, it shouldn't be enough to focus on the time, place, or manner of the speech in this way. That is to say, if 1) the jury verdict possibly encompassed a judgment about the content of the speech--or, more precisely, if the state provides plaintiffs with a cause of action allowing speech content as such to engender liability for reason of its offensiveness--, and if 2) the Westboro protestors have a First Amendment right to say offensive things, then the state has infringed the Westboro protestors's First Amendment rights. (However, I haven't studied the record in this case, and maybe the underlying claims really weren't about the content of the speech, although I would be surprised if that were the case. I doubt very much that the case to the jury was anything along the lines of "and the traffic jam created by the protest caused emotional distress.")
   


3. In a similar vein, the appellant's cert petition suggests that the "captive audience" doctrine might apply to render the WBC protestors's speech unprotected. As I vaguely and hazily recall, this doctrine arises from some Supreme Court dicta suggesting the constitutional permissibility of ordinances preventing protests in residential neighborhoods, in light of the heightened privacy interest of residents. The appellants argue that funeral-goers similarly have an expectation of privacy, and, thus, there is no absolute right to First Amendment protest in such situations. The problem with this argument, by my lights, isn't that funeral-goers in fact lack a heightened privacy interest, but that, even if they do have such an interest, that doesn't really get to the point at issue. The "captive audience" doctrine is within the scope of the rule allowing "time, place, manner" restrictions on speech; the captive-audience doctrine simply defines one particular combination of place and manner that makes (otherwise protected) speech regulable. But both the captive-audience doctrine and its "parent" time/place/manner doctrine decline to focus on the content or viewpoint of the speech in question, which, presumptively, remains protected. The "captive audience" doctrine teaches that speech may be regulated as something other than its content. Indeed, from the viewpoint of protecting free speech interests, the beauty of allowing "time, place, manner" restrictions on speech is that such restrictions do not require any official/legal judgment or notice of the content of the speech. By contrast, from every initial indication here, upholding the jury verdict in this case would mean upholding a judgment on the content of speech (and its offensiveness), and not merely its time, place, or manner. I see no reason to doubt that the protest speech here caused distress, outrage, upset, and a deep violation of peace of mind, perhaps to the extent of psychological damage. But the power of the speech to have these effects is in its content (which is why it is key that the Westboro Baptist Church was not simply holding a supporting candlelight vigil). And upholding the jury verdict means punishing the Westboro Baptists for the content of their speech, as that content.
   

The danger of the Phelps case, to my mind, is that the Court might declare that the offensiveness of speech (at least for very offensive speech) is enough to place it outside the purview of First Amendment protection. Undoubtedly, there would be psychic satisfaction in seeing the Westboro Baptist Church subject to a crippling multi-million dollar judgment, but the constitutional cost could be heavy. If anything in First Amendment law should be clear, it's that offensiveness as such is not enough to remove speech from protection under the First Amendment.

On the other hand, in the case of defamation, speech is sometimes properly punishable in light of its content, given certain effects of that content (and the wrongful harm that content does to the reputational interests of another). Emphasizing this, appellants might say that they seek to punish the speech here for its effects. (This is the reason we punish defamation, or shouting "fire" in a crowded theater.) This argument would be tempting and could work.

The problem with this tack to my mind is that, in the case of defamation or shouting "fire" in a crowded theater, we would never fear that some valuable speech was being chilled; we can be confident in advance that speech answering to those descriptions will never have redeeming value, of any kind. We can't properly have that sort of advance confidence just by knowing that speech has caused emotional distress. (Jefferson's Declaration of Independence caused George III some serious emotional distress.)