3 comments to a post by Sanford Levinson responding to this.
Sloppy, rough etc. There's still a lot there.
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First, the immediate response to Caldwell is in the Times today: Pakistanis Find U.S. an Easier Fit Than Britain.

Second, rather than abusing the work of T.J. Clark, who is after all a socialist and a social historian of art ,the "ephemeral 20th-century phenomena" Caldwell should be responding to is not the existence of the ACLU [the house I was born into (almost literally)] but the self-righteous "empiricism' of an academic culture which imagines that clear eyed observation begins with the ability to ignore one's own presence in the room you share with others.

We begin with bias. The senior Posner's anti-foundationalism is founded in the values of the marketplace, Brian Leiter's is founded in the pretense of disinterested intellectual clarity. The fact that both logics function most clearly in the microcosmic world of philosophical scholastics and do little to describe real world situations seem not to faze anyone, even their opponents.

Returning to examples from art criticism: Clem Greenberg spent his youth following artists around trying to figure out what they were doing and his old age thinking it was his job to tell them what to do. Posner is the literary critic who writes terrible novels, as literary critics tend to do, because he argues not to ideas, but from them. [from ideology] That is valid neither intellectally nor morally. And that is the failure of modernism.

The modernist empiricism of sociology supports by false analogy an illusion of objectivity. The empiricism of the anthropologist on the other hand is closer to that of the novelist: never ignoring, indeed predicated upon, the innate bias and subjectivity of the author, protagonist, or observer. This awareness does not make things messy, it merely acknowledges that they always are.

Another example, since I always bring this up, but also because it fits: In responding to questions of the middle east, it would help if the older generation of intellectuals in this country would see Zionism as the rest of the world does, not as foundational, and therefore beyond reproach[!], but simply as historical fact.
We all live in glass houses. That understand is the definition of 'realism' legal and otherwise.
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The only defense of Caldwell's logic would be to say that since our freedoms have been built on others' lack of them, some blowback might be seen as inevitable and even deserved. That would be a radical response, but he doesn't make that argument. He falls into caricatures of Us and Them, and fear-mongering anti-intellectualism.

My response to Professor Levinson was overly vague:
There is no way to avoid a discussion of value. What the first commenter called the "passive and defeatist" tone of S.L's post derives from some nervousness about defending a specific notion of value against another that claims to be value free and intellectually neutral. Nothing about Posner's logic is neutral.

What are the values of democracy? How are they best served? Are they, must they be, productivist? Are curiosity and free inquiry served best in a 'free' market or are they constrained by it?
Along with the utter stupidity -the boorishness- of Caldwell's piece in the Times, the question is also: how do we combat the ideology it represents? That begins with a discussion of not of ideas, as if from a distance, but of values: of the mess of things.

What I appreciate about the new capitalism is the degree to which commerce is not treated as the sum total of life. This country pioneered the theory of the unification of money and absolute value. Until recently they had been opposed, if still joined at the hip (as art and commerce). But that [recent] unification was merely ideological and the Posners are merely the academic defenders of that ideology. But the flower's bloom is fading; it's late in the day for such idealism. Greed is greed and money is money. It's good to have some and it's fun to have a lot, but that's it. We are returning to the good old bad old days. And I'm relieved.

I defend democracy and civil rights because I defend an ideal of open-ended questioning and curiosity; and ideal not represented by the Posners, Christopher Caldwell, or John Yoo, and not defended well enough by Sanford Levinson.
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The distinction between the past and present is the degree to which freedom and liberty are being defined in terms applicable to the market. Never before in the modern era[!] have we as human beings been so often analogized as ants, but that has become the common term. I've gotten in fights more than once recently with people who've argued that the social as such does not exist other than as the intermittent document of the interaction of monads.

The logic of productivism says that I perform a function it it to achieve a set goal in terms of a common understanding: I work to get paid. The logic of free inquiry says that I may do something for some as yet undefined purpose. My favorite example is the difference between sheetrock and plaster (I've done a lot of both). Hanging sheetrock is a job, while plastering is a trade, a craft, and as such performs more than one function. Craftsmanship is a form of inquiry, not merely of functionality (and of course merely as product, sheetrock sucks). The logic of law and economics, of productivism, is the logic of inquiry constrained my market principles, by the lowest common denominator of human interaction and human behavior. Given that markets do not require social freedoms [China], it's important for those who want to defend civil liberties that we cede no ground to those who want to define freedom down to the level of production and consumption.
Law is made and performed as social action. It cannot be looked at under microscope any more than we can be simultaneously under and above a glass. As any anthropologist will tell you, the paradox of anthropology is that one can not understand a culture without being part of it, at which point distance is impossible.

Our understandings are built upon perceptions, and we communicate by means of rhetoric and rhetoric is craft.
People have the tendency to believe their own propositions and follow them even when they fail. It's human nature. Craft is inquiry without proposition. It is description without prescription. That is a value in itself.

And if you think the problem is only from the right, spend some time reading Brian Leiter. I like Brian, and he's one of the only academics who links to me on occasion. But reading him and a few of the others on his page, and the contempt they pour on the delusions of the illiterate peasantry, and you have to wonder, as my mother used to say about me, whether or not he really has the patience for democracy.

The rule of science is not the rule of law. It is the rule of scientists who are as capable of delusion as the rest of us. The rule of law is rule of debate over ideas and texts. The first law was god's law. God is dead. In interpreting the law we interpret ourselves. Freedom is the ability to choose how we define ourselves, and the right to do it again and again. it is not the freedom to be defined by the market or by those who wish to think of themselves falsely as logical machines. Antihumanism is antidemocratic.
Attack it.