Monthly Archives: January 2007

Judge Posner v. David Cole

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.)


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.


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.

noise pollution

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.

why colleges should embrace a civic mission

I’m traveling today to Oglethorpe University in Martin Luther King’s city of Atlanta. Oglethorpe has begun a major initiative to incorporate service and civic engagement into the whole experience of its students. I’m going to moderate a day of discussion for the faculty. I won’t talk much: I want to listen and help the professors to develop their own ideas. However, I have promised a brief opening presentation about why colleges and universities should embrace their civic missions. My outline follows:

In the 19th century, citizenship and higher education went together. The good citizen, like the good college graduate, knew his or her duty and did it.

In politics, for example, voting was a public act. You voted for your party?s candidate, and your neighbors watched you do it. Most people were brought up within a party and were expected to stay loyal to it. The parties were defined by ascribed identities that were difficult for individuals to escape: class, race, religion, and region.

Newspapers routinely mixed editorializing with factual reporting, and each one aimed at a specific identity group. They advocated fiercely.

In colleges and universities, there was little choice among courses. Most college presidents were clergymen; teaching involved lots of moral exhortation. Moral development was a central function of the institution. Student bodies were homogeneous–often from the same denomination, race, and community. Oglethorpe University had a rather typical founding purpose: to train young men of Georgia to be ministers for the Presbyterian Church.

A new model of citizenship arose in the 20th century, and a new form of college and university developed to embody it. Now the good citizen was an independent, informed maker of free choices.

In politics, voting became a private act (thanks to the secret ballot). Because voting for a party is a crude way to choose one’s political preferences, there were efforts to disaggregate the choice. Party-line voting was discouraged; citizens were supposed to choose individual candidates. The referendum, initiative, and recall were launched.

The best newspapers now aspired to neutrality and separated fact from opinion. Their role was to inform the private reader who would then make choices.

Higher education changed accordingly. Students were given choices among courses and majors. Professors won autonomy and academic freedom. Knowledge and critical thinking became the chief educational goals. Graduates were supposed to choose their beliefs, their political preferences, and their social roles based on information. Indoctrination was seen as a fault, and as a result there was much less moral exhortation.

This model reached its apogee soon after World War II. The Oglethorpe Idea (launched in 1944) was unusual in that it put an emphasis on “citizenship.” More typical was a statement by the University of Chicago’s president, Robert Hutchins, in 1933: “‘education for citizenship’ has no place in the university.” Hutchins led a modern research university devoted to dispassionate academic study.

This ideal came under attack after the War:

  • Conservatives noted that the alleged neutrality of the modern university was misleading, because the curriculum and ethos were pervasively secular. (See William Buckley, God and Man at Yale, 1951).
  • Liberals and leftists noted that the supposedly independent and neutral university won contracts from the Defense Department and prepared its graduates to run corporate America. It was also the gateway to the middle class, yet its admissions decisions were hardly neutral.
  • Others (regardless of ideology) argued that a university devoted to choice lacked any central purpose. It had become a hollow shell without a meaningful set of values that could orient young people.
  • Meanwhile, there were gradual but substantial declines in the actual proportion of Americans who were participating in public life. Presented with a free choice among civic or political groups and causes, many chose not to engage at all. Between 1975 and 2005, the decline was 14% for belonging to at least one group, 31% for being interested in public affairs, 38% for working on community projects, 38% for regularly reading the newspaper, and 44% for attending community meetings.

    Clearly, higher education did not deserve all the blame for this disengagemrnt. (Indeed, people without college degrees were the most likely to drop out of public life.) But higher education wasn’t doing enough to help–to develop interests, skills, and habits of participation.

    Colleges and universities also had another good reason to worry about civic engagement. They were now trying to attract and retain a broader range of students, many of whom were not comfortable or motivated in institutions devoted only to academic knowledge and critical thinking. These students needed to see applications and purposes for what they were learning.

    Therefore, a new set of teaching practices have developed that go beyond both the 19th and the 20th century university. These practices include service-learning, community-based research, living/learning communities, and exercises in public deliberation.

    At their best, these forms of education avoid indoctrination and mere moral exhortation. They prize and teach critical thinking and independence. Nevertheless, they deliberately develop skills, habits, and values that will connect graduates to public life. In short, they don’t tell students what to think about controversial issues, but they do train them to think, to care, and to act on public matters.

    Some controversies and challenges to consider:

  • Can civic education avoid indoctrination? [Stanley Fish says no: “Universities could engage in moral and civic education only by deciding in advance which of the competing views of morality and citizenship is the right one, and then devoting academic resources and energy to the task of realizing it. But that task would deform (by replacing) the true task of academic work: the search for truth and the dissemination of it through teaching.”]
  • Are colleges and universities competent to develop character, especially if such education requires them to work with non-academic institutions and communities?
  • Is it fair to put a university’s resources into service or civic education, when students have paid their tuition and alumni have given money on the understanding that the institution is devoted to academic study?
  • the president and the Constitution

    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.

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    consequences of particularism

    I drafted a paper more than a year ago that drew some political implications out of a philosophical doctrine called “moral particularism” (click for pdf). I haven’t had a chance to improve and expand that paper for publication. It actually covers a huge amount of ground very thinly (which makes it inappropriate, in its current form, for academic publication). Here are a few key ideas:

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