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.

One letter in today’s New York Times says: “More than 20,000 additional troops are being put in harm’s way on the say-so of one man. Isn’t that more characteristic of a dictatorship than a democracy?” Another writer asks, “Are we totally helpless against this man who seems more like an arrogant, power-hungry dictator than a president?” Meanwhile, over at Balkinization, Prof. Sandy Levinson has been arguing that the Constitution is flawed–for many reasons, but in particular because it provides no means to remove the “catastophic” President Bush before his term ends.

I’m against the escalation and regard the current war as a fiasco. But I don’t think we have a dictator, nor should we rush to amend the Constitution.

Continue reading →

Cole Campbell died suddenly last Friday in a car accident. Cole had been editor of The Virginian-Pilot and The St. Louis Post-Dispatch, where he introduced and developed the concept of “public journalism.” Cole and his reporters did not take for granted that there was a “public” (in John Dewey’s sense) for their work. In other words, they did not assume that there were people out there who showed interest in public issues, who talked with one another, and who belonged to effective groups. In fact, all such forms of political engagement were in decline–just as newspaper readership was falling. In response, Cole and other practitioners of public journalism created neutral forums for public discussion. They stimulated interest in civic participation by covering civil society (not just campaigns and politicians). They changed daily practices in the newsroom. For example, instead of automatically looking for controversies and problems, they would sometimes celebrate consensus and civic assets. They also found new sources: civic leaders who didn’t hold official titles. In short, Cole and his reporters redefined “the news” and redesigned the newspaper to promote civic life.

I knew Cole pretty well for more than eight years. I brought him to Maryland once and attended many meetings and conferences with him. He was a live wire–funny, interesting, provocative, intellectual, a voracious reader, and always very full of life. In his gig as a dean of journalism, he undertook a typically creative experiment. I believe that most or all of his students were working together to build an impressive online resource about the environment of Lake Tahoe. It was, characteristically for Cole, a gift to the public.

Incidentally, I thought the New York Times’ obituary, written by David Cay Johnston, was quite good. Johnston quoted several people I would have recommended as experts on Cole’s contributions to journalism. This is only surprising because the Times never did any public journalism itself. Apparently, they have in-house knowledge of the movement. (For fine, personal obituaries by people who really knew Cole, see Rich Harwood and Noelle McAfee.)