Around here, the facts of the following case have already been widely reported. But the short version goes like this …

Virginia Delegate Frank D. Hargrove Sr., age 79, when asked about a proposed resolution to apologize for slavery, expressed his opposition and added, “black citizens should get over it.” He then asked, “Are we going to force the Jews to apologize for killing Christ?” Several fellow members of the legislature remarked that his words were personally painful or harmful to them. Del. Donald McEachin “said that when he looks into the eyes of his 102-year-old grandmother, whose parents were slaves, ‘quite frankly, it’s hard to get over it.'” And Del. David Englin showed a picture of his 7-year-old son, saying that the boy is now “much more likely to be verbally attacked or physically attacked” because he is Jewish.

Hargrove replied that Englin’s skin was “a little too thin.” Speaker William J. Howell defended Hargrove and accused the press of having “blown [the story] out of proportion” in the hopes of sinking the Republicans with another “macaca” story. But Del. Brian Moran said, “It’s not up to Bill Howell to determine whether it’s been blown out of proportion. It’s about the hurt that’s been inflicted on others.”

Hurt has been inflicted on others, but that cannot be the end of the story. It is theoretically possible for people to have excessively thin skin, or to take offense at valid statements. Or people may fail to be offended by remarks that are unjust. Furthermore, the issues that Hargrove raised cannot be assessed only by considering their emotional impact on people who have enslaved ancestors or Jewish children. I happen to have a 7-year-old Jewish child myself, but that doesn’t give me special standing to complain–more than a WASP neighbor has. As a matter of fact, I find Hargrove’s statements laughable and pathetic and likely to redound to the benefit of my favored political party. Thus I have not been hurt by them. But that doesn’t make them acceptable.

We must decide whether his position on slavery is morally correct or just. (I concentrate on slavery, although he also seems to suggest views about Judaism.) In my view, an apology is appropriate and indeed obligatory. The apology would not imply that current members of the Virginia General Assembly own slaves or support the practice. Some members happen to be descendents of slaves. But the State of Virginia is a corporate entity that has been continuously operating since 1619. Each successive batch of leaders has taken over the assets and debts of the previous ones. For the first 246 of those years, the Assembly allowed slavery to exist in its jurisdiction. More than that, it enacted laws against fugitive slaves and abolitionists. It also directly profited by using slaves to build its own buildings and other possessions. An apology would come from that corporate entity and would go, not to people who happen to be descended from Virginian slaves, but to the deceased slaves and to the world. It would do nothing to right the original wrong. But if any situation requires an apology, this would seem to be it. And a deliberate refusal to apologize seems unjust–quite apart from whether that refusal happens to hurt anyone’s feelings.

I was a guest lecturer this morning at the Washington Semester, an undergraduate program run by American University. (The other guest was Judy Woodruff, who showed some of her footage from the Generation Next television series. She has conducted great interviews with hundreds of young Americans across the country.)

I presented the 40 indicators of civic engagement that we combined to form America’s Health Index for the National Conference on Citizenship. They are mostly survey questions that have been asked consistently for the last 30 years, such as “Have you worked on a community project?” “Did you vote in last month’s election?” “Does your family usually eat dinner together?” and “Do you believe that most people are honest?”

When you put these indicators together into an index, you see a pretty steep decline. Of course, that is an artefact of which variables you include and how you weigh them. I simply went through the 40 indicators, one by one, and asked the class such questions as: “Do you engage this way?” “Do you think it’s important for people to do this?” “Is it part of ‘civic engagement?'” “Why do you think it has declined since 1975?” “Is the problem with motivations? Or opportunities?” “What should we do about the decline?”

Overall, I thought it made for a lively discussion that brought out many of the empirical and theoretical issues in the field.

The New York Review carries a dramatic exchange between Richard Posner (the amazingly prolific, polymathic federal judge) and Georgetown law professor David Cole, who had reviewed the judge’s latest book.

Posner begins with a sentence that should shame him when he rereads it in a calmer mood: “Professor David Cole, who doubles as the legal affairs correspondent of The Nation and has received awards from the National Lawyers Guild and the American Muslim Council (founded by Abdul Rahman al-Amoudi, a supporter of Hamas and Hezbollah who in 2004 was sentenced to twenty-three years in prison for illegal dealings with Libya), is far to the left on matters of civil liberties and national security.”

This is a lob over the net that Cole smashes back in Posner’s face. “It is regrettable,” Cole writes, “that a federal judge feels the need to engage in ad hominem accusations of guilt by association rather than simply responding on the merits to a critical review of his book.” Cole (whom I happen to know and like) has received awards from conservative and non-ideological groups. Abdul Rahman al-Amoudi did not found the American Muslim Council (AMC), which in fact fired him. And “FBI Director Robert Mueller gave the keynote address at the AMC’s annual convention in 2002, and defended his decision through a spokesperson by describing the group as the ‘most mainstream Muslim group’ in the United States. Smearing Muslim groups has become an obsession for some on the right, but I expect more from Judge Posner.”

Advantage Professor Cole. But not game, set, and match. Posner’s letter–if not his book, which I haven’t read–presents an argument that Cole doesn’t fully address. Posner’s ad hominem, while shameful, doesn’t invalidate his argument. I think it goes like this:

1. The merits of a decision always depend on the consequences, measured in terms of aggregate welfare. (“Consequentialism.”)

2. The judiciary has the role in enforcing certain abstract and universal principles that are constraints on the other branches of government. The justification for this role is consequentialist. Our overall system works better when certain rules are consistently enforced.

3. However, applying a rule against warantless electronic surveillance would have consequences that are difficult to predict. Although the consequences might be positive, they might also be negative. Judges lack the expertise to make reliable predictions about such matters. Therefore, decisions should be left to the elected branches. Likewise, Posner says that he is personally opposed to banning “Islamic rhetoric,” but his reasons are consequentialist, and he would yield to better informed officials in the elected branches.

4. If judges do decide to impose general rules or principles in these areas, they impose their arbitrary wills or make implicit cost-benefit calculations for which they are unqualified. There are no right answers to controversial and contested issues involving the U.S. Constitution, because “the text is very old and to a degree obsolete, tradition is a mixed bag (the Alien and Sedition Acts and Lincoln’s suspension of habeas corpus in the Civil War are part of the tradition), the precedents are mixed as well and many Cole rejects, and ‘reason’ as lawyers use the term is in the eye of the beholder.”

David Cole provides some sharp specific answers to points in Posner’s letter, but I think he misreads the judge in part. For example, Cole writes, “As for ethnic profiling, far from criticizing it, Judge Posner’s book concludes that it is perfectly constitutional.” Right–I think Posner would say that he doesn’t favor ethnic profiling yet he believes the decision should be made by Congress and the president. In other words, it should be constitutional. Maybe that’s wrong, but it’s not illogical.

There are several options for responding directly to Posner:

1. Constitutional reasoning is not arbitrary. Yes, there are disagreements in the present, and the record of past interpretations is mixed. But the same could be said of science, yet most of us don’t conclude that scientists make merely arbitrary judgments. The exercise of legal reasoning (which is informed by, but not identical to, moral reasoning) can yield correct or incorrect results. The correct result in a case of warrantless electronic surveillance is that it is unconstitutional. (Reasons must then be given to show that this result is correct.)

or

2. The moral worth of a policy or decision is not measured by its consequences. What is right is the application of valid moral rules or principles. Therefore, it’s beside the point to say that free speech by Islamic radicals may undermine security (even if that were true). Security is not the point; free speech is. To make that argument plausible, one must ground freedom of speech in something deeper, such as human autonomy and dignity.

or

3. Perhaps there is an element of arbitrariness in judicial decisions. And perhaps the right question is whether the judiciary enhances aggregate welfare. Nevertheless, our overall system works well because of checks and balances. Both elected branches of government are prone to majority tyranny. They can undermine aggregate welfare by discounting the rights of minorities. For example, if the revolting stories of torture described by Raymond Bonner in the same issue of TNYRB are true, then clearly the CIA did much more harm than good in those cases. It is the special role of the judiciary to look out for minorities whose interests might be trampled. The judicial method is to apply abstract principles that limit government. The net results will be positive.

I’m at the gate at Atlanta Airport, trying to read, write, and (possibly) think. CNN is blasting in the background and competing with Norah Jones, whose voice emerges from the p.a. system right behind me. Should I wish to follow the CNN anchorperson’s train of thought–such as it is–I would have a hard time. Every few seconds a special security announcement interrupts the TV to remind us that the current threat level is orange. Beeping trucks pass by, travelers are called urgently to board, and people shout into their cell phones. Not a single person in this crowded lounge is actually watching the TV, but some have books open on their laps. Silence would be delicious.