Sunday, April 04, 2010


Update from Greenwald v Kerr
Commenter "Marfrks" @ #287
"Academics, though it sounds odd to say it, don’t take ideas seriously."
What an extraordinarily interesting debate. Thanks to everyone. It seems clear to this reader–who has nothing at stake–that Henry is refusing to see things, while Kerr is smoothly awful (the last line about natural law theory and legal positivism is so absurd that I thought at first it was a joke). I feel a cliched impulse to find something balancing to say about Greenwald, but no impression of him is as strong as those two impressions of the others. My own view of the divide may only reflect that it hits a fault line in my life: the difference between an academic and a non-academic approach to things. I have been a lawyer for many years, and then got a chance to teach at a non-lawyerly academic institution. I loved it; I loved playing in the garden of the mind. Eventually, however, it became clear to me that academics and non-academics have very different approaches to ideas. Academics, though it sounds odd to say it, don’t take ideas seriously. For academics, ideas are games, as Kerr illustrates when he speaks so proudly about how he follows reason wherever it takes him. He seems to find that admirable, whereas I–having now sat through many faculty meetings where the propriety of rules about faculty parking are argued from Platonic first principles–find it both tiresome and puerile. Ideas about the Constitution should not be treated as intellectual exercises only. It is a practical document, with clear principles relating to freedom and the protection of the powerless from the abuses of authority that every government in the history of the world has been tempted to engage in. If someone’s version of reason leads him or her to contemplate the weakening or contravention of those principles, that is not admirable or disciplined or honorable. It is misguided games-playing. It reminds me of all those right wingers who used to talk about the “courageous” decisions to bomb various countries that were made by “serious” people. Academics were playing war games and recommending intellectualized experiments with other people’s lives. That was allowed to happen in part because those people seemed so nice and smooth and academically intriguing. “Don’t be shrill,” we were told, when we pointed out that the war in Iraq was morally wrong. That was lousy advice for the country and for the world. I don’t enjoy being shrill myself, but I’m inclined to think that someone needs to be shrill when intellectuals play games with surveillance, imprisonment, torture and death.
I don't have to agree with his description of the clarity of Constitutional principle to agree with his understanding of the weight of engagement that's required where ideas meet the world.

The next comment
@Marfrks. Let me second seth and move that this thread might as well be closed because imho Marfrks has driven a stake through Henry and Kerr (sorry I can’t — although I deny that I did — mangle a metaphor for you).
My comment of course was removed.

addendum: Orin Kerr in 2007, quoted @ #261
I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.
Some would see this response as based on intellectual humility, but pedants aren't humble and they aren't serious, intellectually or morally. Kerr says he approaches issues as a legal positivist, but he's a practitioner of shallow formalism.
He's a Borgesian reactionary.

Farrell begins to understand, finally, @ #450 and then #463
Orin – as Belle suggests in the post I linked, one can create a hypothetical in which the sound utilitarian thing to do is to torture an innocent three year old to death. Does this tell us anything useful about whether it is right or wrong to torture three year olds to death? Are we merely negotiating over the circumstances under which torturing three year olds is OK and not OK, as per the Churchill quote?

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