repeat: Judicial Review vs The Independent State Legislature Theory. 

Because I'm hearing this shit again.

The court is a political institution. The pretense that it isn't is why we're here now, and who should we blame for that?

For Giir Joseph Henry, a 21-year-old medical student in South Sudan, Z-library was a crucial resource for accessing medical textbooks including Gray’s Anatomy: The Anatomical Basis of Clinical Practice, which is widely regarded as the bible of human anatomy. Not everyone is able to afford textbooks like Gray’s Anatomy, says Henry, “because they are really expensive.” The book easily costs up to $200, plus shipping costs.

Henry says he doesn’t have any real access to public libraries from which to borrow books. In fact, the first public library in South Sudan was established in 2019. Even if he were able find the textbook in a library, the number of copies typically pales in comparison with the number of students who need to use it, he points out. There can be “a ratio of 135 students to one book,” he says. With Z-library, Henry says all he needed to download the book was 100 MB of free space on his device.

Even if a student has library access, that doesn’t necessarily mean they can get the books they need. Chaithanya, a Z-library user who requested we refer to her by her first name, is doing her Ph.D. at the National Institute of Advanced Studies in India, whose parent organization is a world-class university. But even in her relatively well-funded university library, not all books are available, she says. A single book can cost her half of her monthly salary—a price that seems particularly unreasonable when she needs to read only one chapter. “We are just on our stipends,” she says. “I was heartbroken when I heard they are shutting down Z-library.”

Balkinization has a symposium on Koppelman's new book

I emailed Koppelman: "Social darwinism is idealist. Let the weak suffer and die off."

He replied, agreeing, in a sentence I'd love to quote in public.

If Z-Library were still up I'd download a copy and look through the index.

Twitter has been a useful tool for a lot of the people for whom Z-Library has been useful, or even necessary.

Koppelman, "How Charles Koch Successfully Peddled the Snake Oil of Climate Change Denial"  

Koch, one of the world’s richest men, is often depicted as merely a greedy plutocrat hoping only to line his own pockets. This is wrong. Koch is—or, at least, he once was—an idealist. We live in a world that was shaped by his ideals—ideals that have real attractions, but which have taken on a malign form.

A lot has been written about him. But until now, his political philosophy has never been carefully examined. When we do that, we learn both the power and the limitations of the libertarianism that so many have found attractive. We also discover that Koch has not even been faithful to his own unworthy aspirations.

Any account of Koch’s philosophy must begin with the story he tells about himself.

No.  Any account of his philosophy begins with the history of his actions.

I emailed Koppelman: "Social darwinism is idealist. Let the weak suffer and die off."

He replied, agreeing, in a sentence I'd love to quote in public. I replied saying maybe he should have been more direct: the KKK is idealist. Fascism is idealist. I haven't heard back.

I'm remembering Moyn's "liberal perfectionism." 

Koppelman has a tag.

Jason Mazzone, at Balkin

Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper. That's the case involving a claim by North Carolina legislators that under the Constitution only the legislature of a state has the power to regulate federal elections--without any interference from state courts or any constraints from state constitutions. The brief from Akhil, Vik and Steve is an intellectual battering ram that demolishes the independent state legislature theory. It is also the punchiest brief filed in a very long time. In its substance and by its candor, the brief sets a new standard for friend of the court. The brief is available at this link.

Judicial Review!!!  

The adoption of new republican state constitutions across the American continent was a transcendent achievement in the late 1770s, acclaimed by Americans everywhere. These new state constitutions were the beating heart of the American Revolution. In a now-famous letter to his wife Abigail on May 17, 1776, John Adams explained, with pride and awe, the monumental import of the Confederation Congress’s decisive vote to encourage each state to adopt is own new constitution: A “whole [state] Government of our own Choice, managed by Persons who We love, revere, and can confide in, has charms for which Men will fight.”

So of course state constitutions were understood as supreme over state legislatures at the Founding! And of course state courts could—and did—enforce these state higher laws against state legislatures. Prominent state judicial review under state constitutions predated the Philadelphia Convention, The Federalist No. 78, and Marbury v. Madison. Indeed, state constitutions formed the basic template for the federal Constitution.

my highlighting. Judicial review has a tag

"Fascism is utopian." Googling it—in english—you get almost nothing, and absent "the struggle against fascism is...", even less. But you get a pirate site download of a book on Jameson, citing him.  Googling "Enlightenment anti-humanism", is still the same. I'm reminded every day, language and psychology are funny things.

Jameson, The Political Unconscious, p.289.

On the contrary, it is increasingly clear in today's world (if it had ever been in doubt) that a Left which cannot grasp the immense Utopian appeal of nationalism (any more than it can grasp that of religion or of fascism) can scarcely hope to "reappropriate" such collective energies and must effectively doom itself to political impotence.

We have a winner.

---

… But now we have another problem.
What is that?
What if we find out what makes each of us internally consistent? What if I find your true name, that thing which describes exactly what you are?
Then I will always be honest, or predictable at least. And you will be able to interpret everything I say and never be wrong. And of course I’ll know your name as well.
No dishonesty, no subterfuge, no Freud, no art… Then we can all be logical positivists.
But it doesn’t matter. That dream’s irrelevant.
I want unification.
It’s an illusion.
I want the illusion.
Do you want the illusion or do you want the illusion to be real? 
What’s the difference?
One means that you have an appreciation of the arts. The other means that you’re a fascist.

Koppelman, then and now. [both SSRN]. His theory of religious exceptionalism has bitten him in the ass.

At Balkinization he sends us to the libertarian shitshow at Volokh

The First Amendment provides in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In Employment Division v. Smith (1990), the Court read this provision narrowly, holding that burdens on religion do not in themselves create any presumptive right to exemption from generally applicable laws. However, the Court later explained in Church of Lukumi Babalu Aye v. Hialeah (1993), "the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Lukumi held that, although religion is entitled to no special privileges, it is protected from discrimination.

Since then, the Court has construed that protection with increasing breadth. It now embraces what has been called the "most-favored-nation" theory (hereinafter MFN), which holds that the denial of a religious exemption is presumptively unconstitutional if the state "treats some comparable secular activities more favorably." That made sense in the context in which it was originally formulated, but the theory has mutated.

"the theory has mutated." That's what they do. It's how language works. And that's the reason for not opening the fucking door. 

And again the stupidity of saying that SCOTUS tells us what the Constitution says, rather than that it defines the legal definition for the present. Decisions are a matter of law not truth.  To say that the court "later explained" makes it seem like the court is consistent and that decisions are additive, and result are cumulative.  You have to take politics seriously to take law seriously.  This shit is why he has a tag. The history is there.

Lawyers who read too much philosophy: Milhiser should know better; Feder, of Jones Day, sat happily on a stage with Gorsuch  

Milhiser: "In retrospect, it was the eight day of law school, when I learned about the “reasonable person” test, when I started to realize how much of law is fake"

The only response:

"Former friends have recounted that Loughner had a fixation for grammar and words, saying that he challenged Giffords at a previous public meeting with the impenetrable question: 'What is government if words have no meaning?'"

Law is "fake" because words have only the meanings we agree on as a community. Money is fake too.

Well it is a vertiginous realization isn’t it? That money is not backed by “anything.” I’ve shocked year after year of smart college students by forcing them to face that reality. There are always a significant minority who cling to some version of the gold standard. They actually do believe that when you “take the note to the central bank,” you will get “something” in exchange. It’s not an easy idea to give up. It’s not unlike the vertiginous feeling that is engendered by realizing that language is not “backed” by anything. We are familiar with solutions to this problem. Create a physical object that can be used as a reference for a word, a definition, a standard, etc.

Found on twitter. Shklar to Rawls. So stupid. 

The one issue that does puzzle me is the basic assumption on which you build you[r] edifice: the implicit values of an actual political society. The task you then set yourself is to draw out these intimations and make them explicit. The burden of historical proof then becomes very heavy. You cannot evade the demand for demonstrably accurate historical evidence to show that these are indeed the latent values. How latent? How widely shared? How deeply held and by whom at what times? In peace and In war, in secure and insecure times? Remember that most of your fellow citizens just now think that the Declaration of Independence is too radical for them. And while this is a good time for the First Amendment, It is not always so. One can say that only religion is safe, because no one cares about it that much any longer, and that in a way what is left is all Protestant anyhow. Finally your account of the conflicting beliefs that can overlap may be be out of date. It is not religion and even ideology that now separates us us, but race, language gut-loathing and ethnic incommunicability. Does your model fit that reality, or only one in which tolerance of creedal diversity was in question? My point is simple. If you base you[r] case on history, then contemporary history, which is what the best social science is, must provide you with a far less speculative ground to start from. Those latent values have to be accounted for every bit as much as more overt ones.

The Papers of John Rawls, Box 41, Folder 14. "Shklar, Dita, memorial remarks [1992]". Harvard archives.

Remove yourself from the world in order to think about it, and then you worry about the result.  The refusal to participate in the political world is a political act, and an anti-political act. The letter and its subject are formed out of denial.

Someone once described art history from its beginnings as Jews explaining Catholic theology to Protestants. It's an old quote and I don't remember the source. But now with Shklar, and Moyn, and the rest, the humor and irony are gone. Jewish scholarship, and Jewish liberalism, has become Protestant pedantry.

"contemporary history, which is what the best social science is,..." The history of the past is not a science, so neither is the study of the present. But the spread of the "research model" into everything means now that everything can be—and needs to be—academic. This is how we've ended up with "Auto(erotic)ethnography"—the link's from 2012; it's not the new one. It explains why we have PhDs in creative writing, and J School, and reporters holding back important information to use later in books, betraying their obligation as hacks and ambulance chasers to play at being historians—out of pretension or for money—and why people need the state to validate and justify their fantasies.  Passivity and the need to be guided, the end of agency. The need to the elite to grant permission and the need of the masses to be granted it. Corruption is weakness; weakness breeds corruption. 

This was a good one. 

The Research Model has a tag

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Moyn, again living down to expectations.

“In general, the more unprecedented [the] investigatory and prosecutorial steps that one administration takes in response to the acts of a prior administration, the worse.” https://t.co/GcfnCixmub

— Samuel Moyn 🔭 (@samuelmoyn) August 14, 2022

More of the same from Andrew Koppelman

Forced pregnancy is totalitarian. It involves the kind of bodily control that America imposed on slaves before the Civil War. Criminal restrictions don’t do much to lower the abortion rate, but endanger all pregnant women by limiting doctors’ ability to treat them.... 

But I just said all that without so much as mentioning my opponents’ motives or treating religious support for a law as a kind of contaminant that makes otherwise legitimate laws invalid.

Forced pregnancy is totalitarian but I'm not calling you a totalitarian. That would be rude.

If you can't articulate your normative commitments in the language of the community it should play no role it law. 

As I reminded him in an email exchange: politics is a schoolyard before it's a seminar. The schoolyard leads; the seminar follows: Women's Studies programs are the result of feminism not the cause. etc.

Intellectual history is academia as self-justifying narcissism. All repeats.

Adding this, from Moyn at the link above—"expectations"—because people don't click, and  Koppelman's piece really is more of the same.

Koppelman now has a tag. It goes back to 2010.

Ahmari can exist only as parody. You could imagine Moyn referring to his "friend" Dinesh D'Souza.

I was asked to wade into the "post-liberalism" debates kicked off by friends on the right (hi former editor @SohrabAhmari and fellow teacher @DouthatNYT) and my response is to imagine liberal perfectionism and socialism. Would that work? https://t.co/eTbS429nrn

— Samuel Moyn 🔭 (@samuelmoyn) June 21, 2019

In re: Roman Catholic Diocese Of Brooklyn v. Cuomo

repeats: liberals arguing that there's a moral and legal difference between a church and a movie theater.

Then Andrew Koppelman in 2010

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In a paper I’ve just posted on SSRN, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.

And now 

#ELB: A Note of Thanks, And a Blog Slowdown, as I Complete My “Cheap Speech” Book Manuscript and Contemplate the Future of the Election Law Blog and Election Reform Work https://t.co/ModSXjhusk

— Rick Hasen (@rickhasen) November 24, 2020

 "Cheap Speech" etc.

As I said at the end of the post, I've forgotten too much.

David Estlund
Epistocracy.

And most of it's in the paper. [there or here]

It's hard to describe how stupid the arguments are quoted below. It's hard to believe people build careers out of such shit. It's hard for me to believe; obviously I don't pay much attention.
---

I've been reintroduced to Corey Brettschneider. It's not fun.

Starting with Andrew Koppelman at Balkin, responding to Larry Alexander, responding to Brettschneider.

Koppelman, "Unparadoxical Liberalism"

Larry Alexander argues that liberalism is internally incoherent, because it contains a paradox: it is committed to toleration, but if it tolerates illiberal ideas and practices, it betrays itself.

The paradox does not exist. Liberalism aims to tolerate as much diversity as it can consistent with the preservation of the liberal project. It has distinctive reasons to tolerate illiberal ideas, since it aims to be adopted by the citizenry consciously and with a full understanding of the alternatives. How much diversity can in practice be tolerated is a contingent question dependent on the facts of any particular time and place. Whether domestic fascists, for example, need to be suppressed in order to avoid disaster, is a matter of prediction based on local knowledge. It is not a philosophical question.

Alexander, "Free Speech and 'Democratic Persuasion': A Response to Brettschneider"

Liberalism’s hallmark is its endorsement of certain basic freedoms: freedom of speech, freedom of religion, and freedom of association. Yet the content of some speech, religious doctrines, and criteria of association are inconsistent with liberalism’s tenets. Speech might advocate restrictions on speech as well as the abolition of democracy, the expulsion of religious and racial groups, and so forth. So might religious doctrines. And associations might require various “illiberal” conditions for membership and might seek to advance various “illiberal” goals. I shall refer to illiberal speech, religion, and association as “illiberalism” for short.

What should be the liberal state’s response to illiberalism? If it outlaws illiberalism, its credentials as a liberal state appear to be undermined. If it permits illiberalism, it licenses Robert Frost’s derogatory quip that liberalism can’t take its own side in an argument. Either way, liberalism appears self-contradictory and incoherent. It must either betray its principles or betray itself (and thereby betray its principles). Liberalism both appears to be possible — we’ve seen it done — and impossible (it can’t be done).

That is, in brief, the paradox of liberalism. Elsewhere, I have diagnosed the problem as one that stems from the impossible-to-realize idea of evaluative neutrality that defines the liberal freedoms. I there argued that the paradox was real and insoluble.

Corey Brettschneider believes he can avoid the paradox. He thinks the key is government speech and subsidies. I believe he is mistaken. The paradox remains.

Brettschneider, from the introduction of "When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality"

Traditionally, political and legal theorists have proposed two types of responses to hate speech. Some thinkers have stressed the need for a neutral approach to rights protection. This group broadly defends the United States Supreme Court’s current free speech jurisprudence, which does not protect threats or “fighting words,” but does protect what I call “hateful viewpoints.” Hateful viewpoints are opinions that are openly hostile to the core ideals of liberal democracy. In defining hateful viewpoints, it is important to emphasize that there is a distinction between the emotion of hate and the content of hateful viewpoints. Hateful viewpoints are defined not necessarily by their emotion, but by their expressing an idea or ideology that opposes free and equal citizenship. Those who hold hateful viewpoints seek to bring about laws and policies that would deny the free and equal citizenship of racial, ethnic, or religious minorities, women, or groups defined by their sexual orientation. The neutralist approach upholds free speech and protects hateful viewpoints from coercive sanction, despite their discriminatory content, because neutralism claims that the state should not endorse any values.

Liberalism as described in all three passages above is the liberalism of ideology, as "project". "We, The Enlightened"—and though it's unsaid, "The powerful", see all the references to the asshole John Stuart Mill—need to find a just way to deal with "They, The Unenlightened".

Rationalists rationalize. They can only be answered with facts.
The New York Times,  "Cuomo to Halt State Business With Groups That Back Boycott of Israel"

Zionism as ethnic nationalism, with or without the Nakba, is illiberalism, tout court. If you want to argue that a liberal won't pick his own side in a fight, that's all the evidence you need.

repeats

"The rule of reason devolves always into the rule of the reasonable as defined by the strong."

"Democracies have freedom of speech not because governments grant it but because the government is not granted the power to take it away."

Freedom of speech means that even though powerful, self-described liberals may rationalize the defense of illiberalism—facts clouded in a haze of ratiocination—the argument will continue, so that sooner or later they may come to recognize their mistake.  And during and after, other arguments will continue.  The state is not allowed to legislate what may or not be argued, only what and how actions may or may not be taken.

I remembered Koppelman is a defender of special status for religious speech, debating Leiter.
They're both idiots. How do you separate religious from non-religious speech? American Exceptionalism, The American Dream, Cartesian Dualism, all fundamentally religious in origin. Dualism is transubstantiation. Leiter's belief in the academy is absurd. "We hold these truths to be self-evident" Truths?

Contra the pedantic academic ruling class, toleration is not Our toleration of Them, but of each other, as democracy and liberalism, as practiced and before theory, are founded in a large group of people, made up of smaller groups, coexisting. Democracy is founded in conflicts, and law is conflict resolution, not a search for truth.

Found on twitter, via the author.  "Learned Patriots: Debating Science, State, And Society In The Nineteenth-Century Ottoman Empire"

Yalçinkaya finds that for anxious nineteenth-century Ottoman politicians, intellectuals, and litterateurs, the chief question was not about the meaning, merits, or dangers of science. Rather, what mattered were the qualities of the new “men of science.” Would young, ambitious men with scientific education be loyal to the state? Were they “proper” members of the community? Science, Yalçinkaya shows, became a topic that could hardly be discussed without reference to identity and morality.

Approaching science in culture, Learned Patriots contributes to the growing literature on how science travels, representations and public perception of science, science and religion, and science and morality. Additionally, it will appeal to students of the intellectual history of the Middle East and Turkish politics.

The Ottoman intellectuals were right. Whether the author agrees I don't know. I haven't read the book. Liberalism as idea is the last of the great Modernist ideologies that sought to impose the authoritarianism of science on politics. The only form of society that will rein in the various forms of the "the research imperative", is republican.

Liberalism as cosmopolitan practice is not liberalism as ideology. I'd forgotten how stupid the academic arguments are. I searched my archives for Brettschneider's name only after I started writing.

I forget everything now.

"cultural democracy"

Jack Balkin reinvents the wheel

I've posted a draft of my latest article, Cultural Democracy and the First Amendment, on SSRN. This essay is part of a symposium on the First Amendment that will appear in the Northwestern Law Review. It further develops the theory of cultural democracy that I introduced in my 2004 essay Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society. 

Here is the abstract: 

The First Amendment is designed to secure cultural democracy as well as political democracy. A central purpose of freedom of expression is to guarantee the right of individuals and groups to participate in culture and influence each other. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The abstract for "Digital Speech and Democratic Culture"

This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning - making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

From the paper

...A serious difficulty with the progressivist/republican model has always been that a wide variety of activities, of which art and social commentary are only the most salient examples, have always fit poorly into a democratic theory of free expression. Lots of speech is not overtly political. Nevertheless, it gets protected under the progressivist/republican model because it is useful for political discussion, because it may become enmeshed in political controversies (and thus threatened or suppressed for political reasons), or because it is very hard to draw lines separating what is political from what is not.[61] In like fashion, lots of activities cannot easily be classified as deliberation—like singing, shouting, protesting, gossiping, making fun of people, or just annoying them or getting them angry. Nevertheless, these activities are protected because we can think of them as raw materials for further democratic deliberation or because we cannot easily draw lines separating them from the social practice of deliberation.[62] In both cases, then, we have kinds of speech that are at the periphery rather than the core; we protect them in aid of something more central and precious. In short, the progressivist vision sees democratic deliberation about public issues at the core of constitutional concern and other subjects and other forms of expression as peripheral or supplementary. ...

61. Meiklejohn himself argued that works of art were protected speech because they promoted knowledge, sharpened intelligence, and developed sensitivity to human values, thus helping people to make political decisions. Meiklejohn, First Amendment, supra note 48, at 255–57. Other scholars have recognized that not all artistic expression equally promotes democratic self-government. See, e.g., SUNSTEIN, supra note 49, at 153–59 (1993) (suggesting that nonpolitical art should be relegated to lower tier of First Amendment protection). And of course Robert Bork, who also had a democracy-based theory of the First Amendment, famously argued that art should receive no First Amendment protection if it was not political speech. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 26–28 (1971).  

62. Cf. Owen M. Fiss, The Unruly Character of Politics, 29 MCGEORGE L. REV. 1, 2–7 (1997) (noting limitations of Meiklejohnian metaphor of town meeting as applied to confrontational politics).

My parents were doing PhDs in American lit at Berkeley when they met and became friends with Meiklejohn and Ann Fagan Ginger, and all of them marched with Harry Bridges.  My parents met doing their MAs in Minnesota where they studied with John Berryman and became friends with Jerome Liebling, though my father may have known him from Brooklyn College, where my father went and where his friends studied with Mark Rothko and they all hung out at the Cedar Tavern. I think my father fucked Grace Hartigan. And Ann Ginger's sister died with Maxwell Bodenheim.

My parents spent 30 years in the thick of politics, from the desegregation of the Berkeley public schools my brother and sister attended, to teach-ins in Philadelphia (through friends in Ann Arbor, who like my father had gone from Brooklyn to Berkeley), to housing draft dodgers and aiding and abetting the theft of the COINTELPRO files, my mother's 20 years on staff at the ACLU of Philadelphia, and my father's on the state board.  I've quoted my mother before and I'll I'm sure I'll do it again: "Rawls isn't interested in people; he's interested in ideas!" Her contempt was absolute. My parents' library was called the best private library in the city of Philadelphia. The Philadelphia lawyers who volunteered their time at the ACLU said my mother could pass the bar easily.  She read Hume and Jane Austen; my father read Henry James and Thomas Pynchon. My sister is named for Anne Halley. Her widowed husband phoned our mother on her deathbed. "Old lovers come to call" she said, before adding hurriedly: "it was not adultery!"

Balkin who has spent his life in the law library, thinks he's created a new "concept". Deleuze says that's what philosophers do.  He's wrong.  The bureaucratic, technocratic, academy is not a model of democratic culture, the culture of self-government, and it's done more to weaken it than support it. Balkin is better than most. Sunstein has always been an ass.

And again: on Koppelman and Graber and Tushnet [update: and Leiter, above, since he'd slipped my mind. I can't remember eveything]

"Democracies have freedom of speech not because governments grant it but because the government is not granted the power to take it away."

The Gettysburg address does not refer to government "of the elite, by the elite" and then tack on, "for the people". Leadership is an ambiguous thing, and Lincoln was a politician not a college professor, least of all a professor of political theory.

Philosophers are comfortable dividing speech into the "propositional" and the merely "expressive"; readers of what's called literary fiction are not nearly so sanguine. And literature like politics is craft.

Dance is abstract art. One image below depicts religious activity, the other secular. Both images and activities are protected by the US fucking constitution. Anyone who says otherwise, no matter what their title, is a fucking idiot.

Corey Robin is not always a putz. The law is the law, even if it's made by fools. But laws made by fools should not make you into one yourself. The relations of conscience and democracy are such that one can have both an obligation to the law, and to the need to change it.

repeat from October, with additions, and a new tag for Charlie Hebdo, for reasons that will become clear.
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Andrew Koppelman defends religious speech as high-value speech, but is happy to learn that an obvious corollary is based on false history.

Here’s a familiar rule of First Amendment law: free speech protection does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. 

...In an important new paper, Genevieve Lakier shows that this story is false.

Genevieve Lakier, "The Invention of Low-Value Speech"

Abstract:
It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.

I grew up around legal discussions of the constitution. I never once heard the phrase "low-value" speech. It's fucking absurd.

I was born in 1963:

Fuck Tushnet, again
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1/15 Koppelman continues to defend religious speech as high-value speech.

The American legal tradition of giving religion special treatment is justified, I have argued, because when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. Micah Schwartzman argues, in response, that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. I respond here to Schwartzman’s critique.

Schwartzman

The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.

There's no line dividing religious from secular belief and neither Koppelman nor Schwartzman try to draw one, taking its existence on faith. Dualism is transubstantiation. The Bible is a book, just like Macbeth and The Story of O. "We hold these truths to be self-evident..."

The delusions of liberalism and the "enlightened" liberal state, the model of which is France.

More on legal reasoning

Andrew Koppelman at Balkin

My paper, Did the Law Professors Blow It in the Health Care Case?, has now been published in the new issue of the Illinois Law Review, along with other responses to David Hyman’s paper, Why Did Law Professors Misunderestimate the Lawsuits Against the PPACA? [link - se] There is also a response by Prof. Hyman.

In his article, Professor Hyman criticized “the epic failure of law professors to accurately predict how Article III judges would handle the case.” The culprit, he concludes, was the experts’ insularity and arrogance. My essay offers a different explanation for the professors’ surprise at the seriousness with which the challenge was taken. The oral argument caused great consternation precisely because judges who had previously endorsed a broad view of Congressional power now suddenly abandoned principles that had been unquestioned for decades, and embraced limits that they had never before even mentioned and that made no sense as a matter of either constitutional interpretation or political philosophy. The explanation for the near-success of the challenge was a combination of libertarian prepossessions and pure Republican party loyalty. The essay concludes that because such behavior is so far outside the bounds of normal, responsible judicial action, the law professors did not anticipate it.

Hyman, you won't be shocked to learn, is unpersuaded.

High politics in law: following Balkin, or both following the same tradition [Taruskin-and here] In terms of blogging also for both of us going back to the beginning

Larry Solum v Balkin

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

repeats:

Andrew Koppelman defends religious speech as high-value speech, but is happy to learn that an obvious corollary is based on false history.

Here’s a familiar rule of First Amendment law: free speech protection does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. 

...In an important new paper, Genevieve Lakier shows that this story is false.

Genevieve Lakier, "The Invention of Low-Value Speech"

Abstract:
It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.

I grew up around legal discussions of the constitution. I never once heard the phrase "low value" speech. It's fucking absurd.

I was born in 1963

Fuck Tushnet, again

the above, reposted and expanded in January
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addendum. dashes included.

Corey Brettschneider: When the State Speaks, What Should It Say?

The book is here

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, political theorist Corey Brettschneider proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints.

Schools in a republic should teach the values of a republic. How is that new, except to those who imagine themselves practitioners of a value free science of politics? The accusation that liberals are "unwilling to take their own side in a fight" has never been applied to those who actually made the effort.  Another academic reinvention of the wheel, in the slow return to an acceptance of the role of individuals as members, and products, of a society.  More of the same

Brettschneider debates the relation of the the Catholic Church to the Westboro Baptist Church, as if any churches logically should be tax exempt.

With respect to the Catholic Church, I am not convinced that either its views on homosexuality or its position on female priests clearly opposes free and equal citizenship. The granting of non-profit status should be at issue only when there is no ambiguity as to whether a group opposes the ideals of free and equal citizenship. In the case of Westboro, there is clear opposition, since that church argues that gays deserve death. By contrast, a plausible argument can be made for the case that the Catholic Church and Orthodox Jewish groups do not oppose free and equal citizenship.  Indeed, unlike the Boy Scouts of America, the Catholic Church does not bar homosexuals from membership. As Andrew Koppelman suggests, the Church attempts to distinguish between gays’ status within the religion and the particular practice of being gay.* It is possible to draw on this insight to argue that the Catholic Church holds a theological basis for distinguishing between gays and non-gays that is not the same as refusing to acknowledge the status of gay citizens as equal citizens. Of course, the Church’s position on gay marriage might seem to challenge this view, and to the degree that the Catholic Church engages in public advocacy against gay rights like the Westboro Church, there is more of a concern that it might violate free and equal citizenship. But its internal religious distinction between gay and non-gay parishioners does not seem on its own to violate the ideal of free and equal citizenship.

[pdf p. 6 (790)] [new link JSTOR. The quote is expanded to include ref. to Koppelman. He really is an ass. ]

*Andrew Koppelman with Tobias Barrington Wolff, A Right to Discriminate How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven, CT: Yale University Press, 2009), 97.

Written by a man, and I have to assume he's straight.
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Corey Robin

The latest issue of Hamas is now online, and it’s fantastic. I’m a contributing editor, so I’m biased. But I know I’m not alone in saying it’s one of the newest, freshest magazines around.

The theories of schoolteachers standing in for the thought of sophisticated people.  Jacobin marks the same transitions marked everywhere in contemporary culture, but it looks inward and backward, with the future as fantasy, rather than outward and forward with the future as subject.

The transitions in the Middle East and in Islam are historically extremely significant.  The thought of the ascendant world bourgeoisie is richer and more dynamic than the theorizing of the old western white intellectual elite, as the thought of American comedians and scriptwriters is more interesting than the philosophies of American academics who would call themselves intellectuals. Jacobin, like N+1 is provincial by comparison to both the New Yorker and Jadaliyya. Both picked the wrong time to feel proudly superior.

Zizek has written for Jacobin. He's written for Abercrombie and Fitch.  Repeats:  Jadaliyya on Zizek. Not to be too hard on him.  As with most people others look to for advice, his fans are worse than he is and his enemies by and large are worse than that.

Duncan Black

"I think a major consequence of the lack of reading non-fiction other than textbooks is that when in late high school or college teachers want research paper type things, the students have a lot of trouble largely because they've never read any."

linking to Yglesias

"Like a lot of people I know, I read a lot and what I read is mostly nonfiction. But as Dana Goldstein points out in a great piece lots of Americans read very poorly and schools teach reading almost exclusively through fiction"

Andrew Koppelman at Balkinization on a paper:“We Don’t Want to Hear It: Psychology, Literature and the Narrative Model of Judging.” The first paragraph below is the abstract.

"The 'narrative' model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell—and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments."

[Koppelman] One of Bilz’s most interesting claims is about literature: she argues that it isn’t possible for a good work of literature to make us sympathetically identify with an evil character. I think that the point needs important qualifications, in the face of some obvious counterexamples, but I am reluctantly convinced. Sometimes it’s morally appropriate to be stupid and insensitive."

Jon Mandle on another paper

"But of course the scientists are not adjusting morality with a magnet, they’re affecting people’s moral judgments. I don’t think anyone ever doubted that manipulating the brain in various ways can lead people to alter their judgments – moral and otherwise. This is obvious to anyone who has observed the results of alcohol, for example, or – much more indirectly – framing effects."

Really, really, fucking stupid.

My comment at Yglesias' page: "Most of what you read is lies and most nonfiction reinforces enthusiasm without question. Fiction questions enthusiasms and assumption; as a heuristic it's the most well suited to the training of functioning adults. No one should be teaching Twilight or Harry Potter, the kids understand them better than the adults. The adults should teach Shakespeare and Euripides... What kids shouldn’t be reading, beyond 7th grade, is textbooks." Teach Tocqueville not academic essays based on him. Teach the past, live the present, and leave the purely academic stuff for later. And even academics admit most academic writing is shit.

From what I can tell, I'll look more closely when I have time, Kenworthey Bilz doesn't understand fiction, morality, or law. None of these idiots can imagine they have ever or will ever lie to themselves. Law is a function of society regulating itself, maintaining order and stability. It has little relation to imagined Platonic truths.

"One of Bilz’s most interesting claims is about literature: she argues that it isn’t possible for a good work of literature to make us sympathetically identify with an evil character." There are very few if any evil characters in good fiction, what there are are evil acts. A good work separates one from the other. If that's not possible the work fails.

Kieran Healy: "Amazingly, you can also change people’s mathematical judgements in much the same way (including with alcohol), which may be disconcerting to people who view physical laws as some kind of immutable, lofty feature of Nature. But such people will just have to get used to this radical new world." What's amazing is that Healy views morality as some kind of immutable lofty feature of Nature. As I've said more than once, philosophy professors, now called 'philosophers", are theologians in drag. Popular storytellers are the first atheists.

See the previous post... and again

I get the impression that high school literature is taught now at the level of what was once called "Art Appreciation," and that these assholes are the product of that and worry now that too much time is spent on it.
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6/22/11 This post is getting a lot of hits today so along with fixing a couple of typos I'll add two more links.

Joe Jamail
John Mortimer

And why not… Jan Van Eyck
Twice!

Look at the smile. That's the face of a great bastard. You can't help but like him

3/14 I used the Pacino images first and never got around to replacing them.

3/30/2020 It didn't register at the time but the discussion at CT misses obvious points. That I missed them too doesn't mean they weren't obvious: the relation to autism (now part of the literature) and the seeming irrelevance of utilitarianism, trolley problems etc. But the descriptions including the authors' are muddled.  From the abstract: "When we judge an action as morally right or wrong, we rely on our capacity to infer the actor’s mental states (e.g., beliefs, intentions)." Mandle: ...they have identified a part of the brain that is important in attributing mental states to others."
But the actors' intentions were stated flat out in the experiment. There's no room for inference. The result of the experiment is to render intention less relevant as a category.
The discussion of law is just as simplistic. People who are deemed "liable" are judged guilty.
Everything above is storytelling.

(2) Religious beliefs do not answer ultimately (or at the limit) to evidence and reasons, as evidence and reasons are understood in other domains concerned with knowledge of the world. Religious beliefs, in virtue of being based on "faith", are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common-sense and in science.

The above by Brian Leiter from "Why Tolerate Religion?" Quoted by Andrew Koppelman in "No Respect: Brian Leiter on Religion" [SSRN]

They both should spend more time around criminal law, and lawyers who argue the causes fate hands them rather than those they choose. The mandate against the establishment of religion can and should mean simply that there is no special place for it, and the express right to freedom of religion can be seen logically, in its historical context, as the equivalent of statements of the right to be free from racial discrimination.

No two people can ever know between them what truth is; the best they will do is agree, and agreement is a function of social life not of the absolute. The law is designed first and foremost for conflict resolution; truth itself is always private. As I always remind people, the rule of law protects us from the [mis]rule of reason. Steven Weinberg's belief that we "need to know" certain facts about the universe is as irrational as his racism, if less divisive. I wouldn't interfere with his right to have his curiosity follow his tastes any more than I would want the state to mandate against his phobias, though I might argue against funding his research, as opposed to funding work on AIDS and Malaria. I might or might not, and either why it's an opinion and a matter of values, not truth. Leiter's response to Brian Tamanaha in their arguments over formalism and realism seem to me to be as based on faith, as opposed to empiricism, as his defense of a naturalized epistemology that sounds (again to me, in my opinion) like desperate science envy. His philosophy tracks with science in his fantasies, and he's unwilling to defend the humanities as such as having value, so his defense of philosophy falls flat. Read the Guardian link he posts. Did they really need a "philosopher" or would anyone with an imagination have been good enough? Maybe a parish priest who's a good judge of people.

Leiter pretends that philosophy is technical and cumulative but the facts and history seem to show only that tastes change. Remember that according to Leiter and his friends "history is bunk". [see the first post yesterday or begin here] I remember Leiter smiling fondly at Jerry Fodor saying with mild contempt that he -Fodor- didn't even know anyone in Comp Lit, though I know from another source that Fodor thought it was odd that one of his colleagues had friends outside the academy itself.

Academics' work represents their preoccupations to themselves. Some academics like to look out the window but it's not enough. Scholasticism is academic formalism; when outside information undermines that formalism it's ignored. The formalism of practicing lawyers is the formalism of craftsmen, of rhetoric, not a model of the objective world but of communication. The formal tropes of oratory are not the formalisms of mathematics, but claims for their their unity are ubiquitous in the academy: the model of a science of rhetoric. The goal of mastery of a skill has become the goal of the mastery of truth. A formal structure used for clarity is now imagined as a self-supporting manifestation of ideal order. That is a very dangerous logic. Leiter doesn't understand language, he doesn't understand law. He doesn't understand his relation to the world beyond his fantasies of it and he doesn't understand democracy. Neither do most academics.