Voter competence under compulsory voting: I posted what follows over at Crooked Timber, but it seems appropriate here, too. Dan Ortiz has an article called "The Paradox of Mass Democracy," printed in recent book called Rethinking the Vote (OUP) that raises some interesting questions about the relation between compusory voting and voter competence. Ortiz argues that democracies are supposed to meet three conditions: (i) near universal suffrage, (ii) equality among those granted voting rights, and (iii) some degree of thoughtfulness among voters. The problem is that we can't have it all: the more we broaden political participation among equals, the less likely it is that individuals will deliberate about their political choices. The argument is that mass participation, combined with voter equality, drives down voter competence. The main reason for this effect is that individual votes matter less when more people vote. As partipation expands, rational voters therefore have less reason to educate themselves about their political choices.

Ortiz argues that the best way to deal with this trend is to neutralize the effects of voter incompetence through various structural reforms. To take a simple example, Jon Krosnick and some of his associates have shown that candidates listed first on a ballot receive a "name order bonus." Even if this effect is minimal, say under 3%, it might still be sufficient to decide some elections. An easy solution is to rotate the names of candidates in order to cancel out the "noise" generated by unthoughtful voters. (States like Montana and Ohio already do this.) The problem with this solution, as Ortiz is aware, is that it leaves the underlying problem untouched. Rotating ballots doesn't change the fact that lots of voters are still incompetent. Since Ortiz is skeptical about attempting to change voter behavior, he thinks that "shallow" strategies are the best--indeed, the only--way to overcome the bad effects of the democratic paradox he identifies.

But are there other solutions to the problem of voter competence that are not deeply coercive? To come back to Australia, does providing (positive or negative) incentives for voting improve voter competence? For example, how does Australia, which has compulsory voting, compare in voter competence with countries that lack incentives for voting? Does the "name order" effect hold at similar levels? (Or does Australia use rotational ballots to cancel this effect?) If increasing voter turnout drives down voter competence, other things being equal, one would expect a significant drop in voter competence.

How would paying people to vote (say, with some sort of tax credit or voucher) effect voter competence? Would people learn more about candidates--either because they feel obligated by law, or because candidates will invest more in the process of informing voters knowing that everyone must participate? Consider also the effect of incentives on two classes of voters--those who already vote, and those who would vote only under an incentive regime. First, would there be crowding out effects for people who would have voted without legal or financial incentives? In other words, would a monetary incentive for voting displace other possible motives--including those based on some sense of civic duty? And, second, how would voting incentives effect competency levels for the class of people who would not otherwise vote?

I'm not sure what to think of the "mass paradoxes" argument, in part because there seem to be lots of open questions about how voter competence is related to various ways of structuring voter participation. "Shallow" strategies may be a good way to neutralize unthoughtful voters, but perhaps these solutions can be supplemented with incentives that promote greater political deliberation.

Rawls and the Law: Larry Solum has fabulous coverage of the Rawls conference at Fordham. Wish I could be there, but Solum's comments are the next best thing. Don't miss them--go here and scroll up.

Women in the Judiciary: a group I work with at the University of Virginia law school is hosting a panel on "Women in the Judiciary" later today. Two federal appellate judges and a justice from the Virginia Supreme Court will take questions for about an hour and half. Dahlia Lithwick (to whom this slightly scary fan blog is devoted) kindly agreed to moderate.

Preparing for the panel, I came across some interesting--though not terribly surprising--demographic information on women in the U.S. federal judiciary. The Federal Judiciary Center has a nice database (look for the Federal Judges Biographical Database) that lets you search for information about federal judges using about a dozen different variables, including who nominated them and when. I ran a search on "Nominating President" and "Gender" and got these results:

From Kennedy to Ford, there were a total of six women appointed to the federal bench; Carter appointed 40 women out of 257 total appointments, Regan 29/372, Bush 36/211, Clinton 104/367, and Bush II 29/144 (so far).

Note that Clinton appointed almost as many women to the bench as all of the presidents before him combined. Looking at the percentages, about 28% of Clinton's nominees were women, which roughly equals the percentage of women in the legal profession. (For statistics on the number of women in the legal profession in the U.S., go here.) W's numbers are lower than Clinton's to date, though, given the growth of women in the profession, one would hope the numbers would go up.

What's the hurry? Bruce Ackerman has an op-ed piece in the New York Times today arguing that the Ninth Circuit should not delay the vote in California. I have to admit that I was a bit surprised by Ackerman’s willingness to limit the possibilities raised by the equal protection claims upheld in Bush v. Gore. Here’s his argument:

This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters . . . Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline.

It also offered them a fair election. It seems reasonable for a court to postpone an election long enough to permit the installation of fair voting systems, rather than going through with error-prone machines and then trying to sort out the mess afterwards.

What about Ackerman’s First Amendment argument? It always helps to have the text around. So the First Amendment says: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The core of the First Amendment may be the protection of political speech. But even if that’s right, it’s a big stretch to say that its core is the freedom to present a coherent political message to voters. That’s either rhetorical flourish or wishful thinking. Ackerman is asserting a First Amendment right to have an election run on time. I’m sure it would be a good thing to have prompt elections, and there may be statutory law requiring it. But, if there’s a constitutional claim involved here, it is the right to have one’s vote counted equally in a fair election. Ackerman thinks that this claim isn’t strong enough to override his First Amendment concerns. I think those concerns are overstated, at best. But even if they aren’t, this is an opportunity to see whether the Supreme Court was serious about the equal protection arguments of Bush v. Gore. It’s worth waiting for a decision about whether the Court meant what it said about guaranteeing fair elections.

Give Children the Right to Vote? I'm taking a course on election law, and the professor mentioned a proposal today that I hadn't heard about before. He said there's a movement in Germany to propose a constitutional amendment that would give children the right to vote from birth. I thought he was pulling our leg at first, but listen to this segment on NPR. The idea is that parents (or principal care givers) would act as proxies for children by voting on their behalf. According to proponents, this would have two benefits. First, it would give politicians greater reason to care about family and children's issues. Second, in an effort to correct for Germany's declining birth rate and rapidly aging population, it would give people greater incentive to have more children. (A quick search turns up some other proposals of this kind floating around, from the sophomoric to the more considered (by Gillian Thomas at Demos) to the academic manifesto (by Duncan Lindsey at UCLA.).

I think the population growth rationale is very bad. There are lots of ways to provide incentives for population growth without altering the voting system. Some form of subsidy for having children seems like an obvious mechanism. It would certainly be a lot easier to retract a subsidy when the target population level is reached. Retracting the suffrage is notoriously difficult--and usually for good reason. This rationale also assumes, of course, that increasing population in Germany (or elsewhere, for that matter) is a good thing. Since I don't know anything about German demographics, I'll leave it up to someone else to pursue that line.

More generally, what about the argument that children lack adequate representation? I think this is probably right, but the institutional problems with proxy-voting seem insurmountable. There are principal-agent problems, incentives for strategic voting, and the more basic question of whether it's fair to allocate proxy-votes in the first place. Still, the proposal raises some interesting questions about institutional solutions for problems of intergenerational justice. Place yourself in the original position and ask: if I didn't know how old I would be when the veil is lifted, what principles of political representation would I favor? One-(adult) person, one vote?

Double posting: I'm not sure about this yet, but I thought I would start posting some of what I write over at Crooked Timber here as well. We'll see how it goes.

Crooked Timber: I'll be blogging over at Crooked Timber for the foreseeable future. I've very much enjoyed writing this blog, but it's time to branch out, so to speak. Hope you'll keep reading at the new blog.

More on Gadamer: Josh Cherniss has some thoughtful things to say about the question I posed below: was Gadamer a Nazi? Josh thinks that

one of Gadamer’s greatest personal virtues was also a part of his greatest moral failing, and that this same double-edged quality accounts for both an attractive strength, and a worrying weakness, in his work. Gadamer seems to have suffered from an excess of indulgence, of generosity, of tolerance; he was too charitable, at the time and afterwards, to colleagues who believed and did appalling things (though not towards certain fanatical out-and-out Nazis, whom Gadamer did distinguish from their milder colleagues and condemned). It wasn’t that Gadamer refused, or was even reluctant to, pass judgment; he did. But his judgments with regard to the behaviour of German academics under the Nazis strike me as too indulgent towards others – and towards himself. It was a tough situation, and we should indeed avoid passing hasty and arrogant judgment on those faced with a very hard decision . . . Gadamer’s thought, to the very limited extent I understand it, seems to me animated by his attractive and admirable commitment to dialogue and understanding, which Wolin notes at the beginning of his review. This is worth emulating and fostering. But, as Wolin also notes (and quotes Adorno to the effect of), we are also faced with a moral imperative to avoid repeating the horrors of Nazism – and to oppose those who would seek to repeat them. To the extent that Gadamer inspires us to greater humanity, humility, tolerance and understanding, he is a worthy ally in this project; but to the extent that adopting his philosophy and method may inhibit our ability to make tough judgments and take difficult stands, he may also be a sometimes unreliable and even dubious one.

Read the rest here.

Light blogging over the next couple of weeks. I'm trying to get an artice out, and then I'll be out of town for about a week. It's that time of the year when your friends get married!

Lawrence: the Supreme Court surprised a lot of people today, I think, in using the privacy justification to strike down the Texas law against sodomy. Another decision for the casebooks. For the majority and dissenting decisions, as well as a map showing which states are affected by this decision, go here.

Affirmative action: if you're looking for a good round-up of the day's commentary, Larry Solum has compiled an excellent set of resources.

Given that so much has already been said, I've decided not to blog about the substance of the Grutter and Gratz decisions. But I will say that these are the first landmark cases to come down since I started law school. As the excitement passes, I'm looking forward to seeing how the career of these cases develops. One of my professors mentioned to me today that the first major case decided after he started law school was Miranda. It must have been something to watch the legacy of that case expand and unfold. I don't know that Grutter will have the same sort of longevity, but for those of us just entering the legal world, I'm sure it'll be a case we watch with similar interest and concern.

Blogger fodder: in about an hour, the Supreme Court is supposed to release some major opinions on affirmative action, homosexuality, and free speech (to mention only the big three). That should keep the blogosphere going for a few days . . .

Was Gadamer a Nazi? Richard Wolin seems to think he was, at least during the early years of WWII. Arts & Letters Daily is linking to a scathing review of a biography of Gadamer by Jean Grondin in which Wolin argues that Gadamer was actively complicit with the Nazi regime:

Time and again, Gadamer's own ethical transgressions are compounded by Grondin's post hoc rationalizations. "It was certainly a delicate situation to sit in for a Jewish colleague, but what was Gadamer supposed to do?" inquires Grondin plaintively—as though Gadamer's career prospects were self-evidently the major issue at stake rather than his embarrassing willingness to cooperate with a lawless and racist dictatorship. "Should he have protested?" Grondin continues. Yes, that's exactly what Gadamer should have done! For by protesting or having otherwise expressed his disapproval of this horrific regime, Gadamer would have saved the honor of philosophy as well as his own reputation. Yet for reasons Grondin never fully explains, he insists that the only option available to Gadamer at the time was the low road: "In his situation he could only think about getting along himself." Grondin seems not to understand that philosophy's distinctiveness as a vocation is that in such situations it acts on the basis of principle rather than self-interest or survival. Those who view Grondin's biography as a conte morale about how hermeneutics functions in times of duress are surely in for a major letdown.

Undoubtedly, Gadamer's greatest compromise with the Nazi regime concerns his lecture "Volk and History in Herder's Thought," presented on May 29, 1941, at the "German Institute" in occupied Paris. To appreciate the performative dimension of Gadamer's text, one must take into account that the various German Institutes were purely and simply vehicles of Nazi cultural hegemony. As such, there could be no illusions about their explicit political function: to convince wavering European elites of the legitimacy of a Nazi-dominated Europe and to convey the sense that Germany's military potency was backed by an immense cultural prowess. The Wehrmacht had done its job in the trenches. It was now time for German humanists to do their part in the battle for the hearts and minds of Europe's elites and opinion leaders.

The themes of Gadamer's lecture harmonized perfectly with the regime's ideological aims. Gadamer argued that Enlightenment rationalism had played itself out. The new era would be characterized by the ascendancy of the German Volk idea, the ideological lineage from Herder to Hitler, as it were. With Germany's blitzkrieg triumph of June 1940 (the date of the fall of France), the sun had set on Enlightenment universalism. It was now time for the reign of national particularisms, and, in this regard, Germany's claim to superiority seemed self-evident. The philosopher's job was to provide intellectual legitimation for the new geopolitical order. In keeping with this objective, Gadamer concludes the lecture with a glowing encomium to Germany's battlefield triumphs: Herder's "unpolitical intuition of . . . the fate of Germany during his time, and perhaps the fate of such political belatedness is the reason why the German concept of das Volk—in contrast to the democratic slogans of the West—proves to have the power to create a new political and social order in an altered present." After reading these lines, can there be any doubt that, in spring 1941, Gadamer made the Nazis' cause his own?

I was genuinely surprised by this review. On a spectrum of Nazi affiliation from Heidegger to Habermas, I suppose I'd always thought of Gadamer as closer to Habermas--despite Gadamer's age. Maybe Wolin is wrong about his interpretation of the events he discusses, but, if he's right, it's pretty disturbing stuff.

Not Geniuses, but damn good web-designers. Ezra Klein, Joe Rospars, and Matt Singer have opened up shop together. The blog looks terrific. Go check them out.

Weithman and public reason: Lucas Swaine (Dartmouth) reviews Paul Weithman's (Notre Dame) recently published Religion and the Obligations of Citizenship in Notre Dame Philosophical Reviews. I haven't yet had the opportunity to read Weithman's book, but I'm very much looking forward to it. His other contributions to debates about public reason are careful and precise (two special virtues in an area with so much mushiness), as well as uncommonly charitable to those with whom he disagrees. In the book's Introduction, Weithman says that he will defend the following two principles:

(5.1) Citizens of a liberal democracy may base their votes on reasons drawn from their comprehensive moral views, including their religious views, without having other reasons that are sufficient for their vote – provided they sincerely believe that their government would be justified in adopting the measures they vote for.

(5.2) Citizens of a liberal democracy may offer arguments in public political debate which depend upon reasons drawn from their comprehensive moral views, including their religious views, without making them good by appeal to other arguments – provided they believe that their government would be justified in adopting the measures they favor and are prepared to indicate what they think would justify the adoption of the measures.

In his review, Swaine worries that Weithman's "principles would permit voting or advocacy for unreasonable measures, in unreasonable ways, and on unreasonable grounds." I have similar concerns about the permissiveness of Weithman's principles, but I'm also interested in the sincerity constraint expressed in (5.1) and perhaps also in (5.2). I say "perhaps" because it's not clear that (5.2) imposes a sincerity constraint on public advocacy. Citizens may offer non-public reasons provided (i) they believe that government is justified in adopting whatever policy they advocate, and (ii) they are "prepared to indicate what they think would justify the adoption of the measures." They don't actually have to indicate what they think--they just have to be prepared to do so. Does this mean that citizens may offer any reasons they think will be persuasive in public advocacy--so long as they, personally, believe what they advocate is justified according to some adequate reason? Can they offer reasons they don't believe at all just to get other people to agree with them? I think any adequate account of the ethics of public advocacy will have to deal with this question. It'll be interesting to see what Weithman says in the book about the signficance of reasonableness and sincerity in public debate.

Bernard Williams has died. I haven't yet seen links for a memorial but will post them as soon as they are available. Here is a brief biography for Williams from the philosophy department at UC-Berkeley:

Professor Williams received the M.A. degree from Oxford University. After serving in the Royal Air Force, he held a series of academic positions in England. In 1967 has was appointed Knightbridge Professor of Philosophy at Cambridge University, and in 1979, Provost of King's College. He came to Berkeley in 1988; from 1990 to 1996 he also held the position of White's Professor of Moral Philosophy at Oxford University. Professor Williams divides his time between Berkeley and England.

He has been Fellow of the British Academy since 1971 and Foreign Honorable Member of the American Academy of Arts and Sciences since 1983. He has been awarded honorary degrees by the University of Dublin, the University of Aberdeen, Cambridge University, Harvard University, Yale University, and the University of Chicago; he was knighted in 1999.

He has served on several government committees in England, including the Royal Commission on Gambling (1976-78), and he was chairman of the Committee on Obscenity and Film Censorhip (1977-79). He was a member of the Labour Party's Commission on Social Justice (1992-94) and participated in the Independent Inquiry into the Misuse of Drugs Act (1997-2000). From 1967 through 1986 he was a member of the Board of Sadler's Wells Opera (later the English National Opera).

The photographer Sijmen Hendriks has a portrait of Williams here, and, in 1993, David Lavine drew one of those classic caricatures for Williams in the New York Review of Books. Around the publication of Truth and Truthfulness, Stuart Jeffries published a nice profile of Williams in the Guardian. It's available here.

Update: for some tributes to Williams among bloggers, see Bertram, Runnacles, Solum, and Levy. There's now an obituary in the Guardian (noted by Bertram).

The Strauss reading list: so it seems that the Strauss story isn't going away. Leo Strauss' daughter, Jenny Strauss Clay (a professor of classics at UVA) defends her father's legacy in the New York Times. Another tribute to Strauss--this one by Bret Stephens--appears in the Jerusalem Post. But the only recent contribution that I've found really valuable is today's post by Josh Cherniss, who I had a chance to meet during my recent visit to Oxford. Josh has put together a nice list of secondary reading for anyone who wants to learn more about Strauss and Straussian political philosophy.

Anonymous: now who wrote those unclaimed Rawlsian pick-up lines in Chafetz's run down of the best (postable) entries? Only a Straussian could figure it out!

Regards from Oxford: I've stopped in Oxford on the way back to the States. Not much to report, except that construction never ceases on Cornmarket Street. I've also managed to scrounge up a couple entries for OxBlog's "best political theory pick-up lines." Unfortuntely, I didn't manage to work in "colonization of the lifeworld." But, then again, we Rawlsians don't do that sort of thing . . .

Regards from Israel: I'm traveling this week, so I won't have the chance to blog very much. On the drive from from Tel Aviv to Jerusalem this afternoon, we had the strangest weather I've ever seen. I've watched ominous, green and purple skies driving through Kansas, stopped for white-outs in Colorado, waded through floods in southern Virginia, and even bunkered down for a serious hurricane in Biloxi. But today the sky was darkened with sand, with a hot wind blowing, and then it rained. When we stopped, our car was caked in mud. I've never seen it rain in Israel after Passover. But that alone might not have been so unusual. The really crazy part was that it rained in the midst of a sand-storm. Strange things are happening in this country. Is any one superstitious?

Taking Strauss (less?) Seriously: I've been following the recent flare-up about Strauss from a distance. I thought I would cobble together the major posts for people who might be interested but haven't had the time or the patience (understandably) to look for this stuff. If you're new to this debate, the recent discussion was kicked off by a spate of articles about how neoconservatives in the Bush administration have been influenced by the political philosopher Leo Strauss. There are articles by Seymour Hersch in the New Yorker, James Atlas in the New York Times, Jeet Heer in the Boston Globe, Jim Lobe in Asia Times, William Pfaff in the International Herald Tribune, and Alain Frachon and Daniel Vernet in La Mond (happily translated in the link provided). Peter Berkowitz has published an apology for Strauss in the Weekly Standard (with thanks to Arts & Letters Daily for spotting it).

Leiter v. Cherniss: In a scathing letter, Brian Leiter lambasted the New York Times for perpetuating "the mainstream media's long-standing fraudulent portrayal of Leo Strauss, and his acolytes like Allan Bloom, Francis Fukuyama, and Harry Jaffa, as serious political philosophers and scholars." Josh Cherniss (at Balliol) has replied to Leiter and others in a remarkable series of posts available (in chronological order) here, here, here, here, here, here, here, here, here, and here. (Whoever your supervisor is, Josh, for your sake, I hope s/he's not reading this post--unless, of course, you're planning to include a chapter about Strauss in your thesis. In which case, more power to you!)

Other bloggers: Ted Hinchman posts some valuable commentary here, here, and, on the new Diachronic Agency page, here. (Hinchman's last post also includes my favorite line of the month: "If my own head had a job opening, I don't think I'd even get an interview." Anyone who can write a line like that should automatically get an interview--even in his own head!) Chris Bertram has a measured response to all this here; following Eric Tam's lead from here; the Invisible Adjunct is here and here, and Eddie Thomas here. Lastly, I've drawn some of the links above from Daniel Drezner, who has some excellent posts here, here, and here.

For what it's worth, I think the political hype about "Leo-cons" has blown things way out of proportion. I don't have much sympathy for the Straussian project, but I do think Straussian arguments are worth discussing. This is one place where a proper journal article (or two) would probably be of more help than the blogger's rant. I'll let the Straussian experts suggest a good reading list--it would be very helpful for someone who is sympathetic to Strauss to put together a short-list. (I'm sure such lists exist, but point us in the right direction.) If you're looking for a critical essay, I'd recommend a short article by Charles Larmore originally published in the New Republic (July 3, 1989). It's reprinted in his The Morals of Modernity as "The Secret Philosophy of Leo Strauss."

Bloggered: it appears Blogger is migrating old blogs over to a new format. At the moment, I don't have access to my template to update my blogroll, etc. There are so many pages out there deserving of recognition . . .

The good life: some folks in this town must be living it. I can't believe I spent four years in England and never went to Hay-on-Wye. Maybe it's because most of the bookstores there have put their inventories on-line. At any rate, I'm planning to correct my mistake next week. I'm hoping to be in Hay for the last day of its literature festival. The sheer amount of programming for the week-long festival is incredible. (Does anyone know of anything like this is the U.S.?) Of particular interest to political theorists are talks by John Gray, Michael Lind, A.C. Grayling, Mary Warnock, and Richard Sennett, among others. If anyone's been to Hay and has a favorite book store, let me know.

Update: maybe next year in California for the Los Angeles Times Festival of Books. Or maybe I'll just stay right here in Charlottesville.

Seldon v. Swift: as Chris Bertram points out, the latest issue of Prospect has an excellent exchange between Anthony Seldon and Adam Swift about the social justice of private education. For more on Swift's book How not to be a Hypocrite, see my earlier entries on "Political theory for everyone" and "Education and hypocrisy." Permalinks are bloggered, but both are archived at 3/23/2003.

The Cool Name Theory: in the social sciences, good theories are supposed to have (i) parsimony and (ii) explanatory power. So how about this: to make it into the canon of great political philsophers, your name has to be amenable to a suffix like "ism," "ist," "ian," "ite," "an," etc.

Consider: Plato(nic), Hobbes(ian), Locke(an), Hume(an), Kant(ian), Hegel(ian), Burke(an), Marx(ist/ism), Milli(an), and Rawls(ian).

There are two additional corollaries. First, the common-name corollary says that common names are fatal to cannonization. So I've got some bad news for Charles Taylor, David Miller, and Jerry/Josh Cohen. A second and related corollary says that already-taken names are also fatal. It'll be hard to break through as Marx II. Humble apologies if your last name is Smith.

Of course, having a cool name is not a sufficient condition. But you have to wonder about some could-have-beens: Sidgwick(?), Hobhouse, Oakeshott--and there's probably some bad news on the way for Ackerman, MacIntyre, and Kymlicka. On the flip side, Gaus and Strauss are looking good. The theory would probably also predict success for Raz. Razian works, right?

As I see it, there are three fairly strong objections to CNT:

First, there are good counter-examples: Aristotle isn't easy to assimilate to the theory; Tocqueville is also a challenge. Are they exceptions that prove the rule?

Second, the boundaries of the canon are obviously flexible. Does Wittgenstein count? People do say "Wittgensteinian." But that doesn't make it cool--nor does it make Wittgenstein a political philosopher. CNT can probably withstand this objection . . . but what about all those Continental philosophers? Is CNT anglo-centric? Gadamerian might pass the test. Heidegger probably not. Foucault? (I'm going to count on Russell Arben Fox to help out here--even though he's doomed on this account. I think Fox is probably taken.)

Third, although I think this formulation of the theory is somewhat original, the theory is doomed unless it takes off under its descriptive name. Because Schwartzmanian isn't going anywhere.

Philosophical lexicon: so Jack Balkin and Larry Solum have a gigantic, jurisprudential argument going back and forth. In the midst of it all, Tom Runnacles has this noteworthy comment:

The almighty battle between Professors Balkin and Solum, over the merits of the 'neo-formalist' view of judicial decision-making, proceeds apace. In his latest post, Larry is momentarily dismayed when the argument takes a turn he didn't quite anticipate:

I thought I had Balkin, but now, at the very end, he pulls a Dworkin on me. What I am supposed to do now. I could Raz Balkin, but there is no way to Raz someone in a blog. It takes way too long.

Indeed, but that's only the half of it. The real problem is that when a Razzing has been successfully carried through, the affected party may well not notice what's happened to him for some time afterwards; in fact, even then it may take him a considerable while to determine the nature of his injuries.

Folks, let's hope this fight stays clean. They're both taking some tremendous hits out there, but one can certainly say that each is showing a lot of Hart, and that this one ain't Finnis-ed yet.

If you've never seen Dworkin or Raz in action, then all of this will be something of a mystery. But that's where the Philosophical Lexicon comes in. Except that Solum and Runnacles aren't helping out the uninitiated by using the "standard" definitions. According the Lexicon, "to dwork" means: "To drawl through a well prepared talk, making it appear effortless and extemporaneous. "I bin dworkin on de lecture circuit" - old American folk song." Looks like Solum is using an alternative, unsanctioned definition. And, unfortunately, the Lexicon seems to be missing altogether a definition for "Raz". In the "Preface to the Eight Edition," Dennett extends his "apologies to all the illustrious members of the profession who deserve to be included but have so far failed to inspire a suitably pungent definition." I think with some refinement, Solum could supply the requisite one-liner. Then maybe we can move on to Hart and Finnis--since jurisprudes seem to be rather under-represented in the Philosophical Lexicon. For what it's worth, my favorite entry is:

buber, v. To struggle in a morass of one's own making. "After I defined the self as a relation that relates to itself relatingly, I bubered around for three pages." Hence buber, n. one who bubers. "When my mistake was pointed out to me, I felt like a complete buber."

There are certainly times when blogging feels like bubering. Hence my hiatus. Here's to getting back into the saddle.

Hart is out: although he was never fully "in," Hart's decided not to run. Wish I had more time to comment, but last exam is around the corner.

Rorty in Oxford: never thought I'd see the day. Well, actually, I still haven't. But some friends of mine have been attending lectures that Rorty is giving this week in Oxford. The schedule is available here. It's also great to see that the Oxford Research Seminar in Political Theory is up and running again. I had the privilege of helping to organize that seminar for a couple years. Looks like they've got a good line up this Trinity term--including, I've just noticed, Chris Bertram.

SSRN: I'm sort of new to all this, but David Fontana, a colleague of mine from Virginia and Oxford, has posted two interesting papers.

Refined Comparativism in Constitutional Law. From the abstract:

This Article lays out a "refined comparativist" approach, whereby a court would consider comparative constitutional law only when faced with a "hard case," the comparative constitutional law can add something distinctive to American constitutional interpretation, and the contextual differences between the United States and the country the American court is considering borrowing from are slight. This Article then defends this refined comparativist model, paying particular attention to several strands of contemporary constitutional scholarship, before applying refined comparativism to address the constitutionality of hate speech.

A Case for the Twenty-First Century Constitutional Canon: Schneiderman v. United States. From the abstract:

Schneiderman raises a variety of issues related to disparate subjects, such as the role of courts during wartime, the place of the Constitution in the American "civil religion," constitutional limitations on immigration regulation, and so on. Because this case discusses all of these issues (and had a major impact on the evolution of some of these issues), it is a case of substantial importance and interest that has belonged in the constitutional canon for some time.

I'll have more to say about all this--including the very interesting topic of comparative constitutionalism--when exams are over. Until then, blogging is a study break.

Dean Scott and Contract Theory: Solum has posted a link to a forthcoming article from Scott and Schwartz. I haven't had a chance to read it yet, but I'm very much looking forward to doing so when my exams are finished. Solum's comments are extensive, and it'll be nice to go back to them as well. As an aside, I had the privilege of taking contracts from Dean Scott last semester. I'm not exaggerating when I say that he's the best teacher I've ever had. When Unlearned Hand emerges from finals, I'll have to ask him whether he agrees. We were fortunate enough to learn from Scott in the same section. Much more after exams!

Sabl responds: Andrew sent the following message today. In it, he answers various criticisms of his article on Cohen's critique of Rawls, a summary of which is posted below. Here's Andrew's message:

First, I would like to thank Micah for hosting this comment. I'm not a blogger myself, and rely on his generous donations of space.

As someone unused to the blogosphere, I'm afraid that my comments here will be taken as more definitive than they are. Once again, I stand by the print version of my article (Society March/April 2002, 78-85) and am happy to send (a few!) copies out to those who can't easily get it.

Jacob Levy's superb post on the difference between political theory and political philosophy helps illuminate some of the clashes between my post and the responses to it. But I also have some more specific responses Tom Runnacles' and Chris Bertram's excellent and provocative comments.

Both Runnacles and Bertram rightly focus on my horror of indoctrination, and both ask rhetorically whether it's wrong for a society to teach children not to steal. No, that's not wrong. But we shouldn't draw the general lesson that every time we think something required by justice we should recommend adopting it as a social norm at the cost of indoctrination. For one thing, stealing is an easy case because even if everyone disagrees on the legitimacy of where the property came from, almost any predictable system of property beats universal theft as a social rule.

But this isn't the proper analogy anyway. Cohen, remember, wants people not just to obey social rules—egalitarian ones—but to internalize them as guides to private conduct and even private motivations, and internalize them because they have accepted the requirement to attune their private motivations and beliefs to a certain set of public arguments that have come up with reasons why they are morally required. If we taught in schools, and tried to make a postulate of public debate, a given doctrine of property—Locke's, say, or even Hume's—and anyone who didn't believe it in his or her heart of hearts were attacked as antisocial, this way of making sure people got the message "don't steal" would be deeply illiberal.

Runnacles is right to say that Stockholm, London and Los Angeles differ in their level of egalitarianism without any being conformist in the ways I fear a society based on a Cohen-style ethos would be. (Or maybe. The link between Scandinavian social democracy and an assumption of cultural uniformity may be no accident.) But he's wrong to say that these cities "differ very considerably with respect to the extent to which the ethos Cohen favours obtains." It actually obtains at a level of zero everywhere. Nobody anywhere thinks that the only life he or she can morally live is the kind that could be justified in a society- (world?-) wide moral argument about which economic motivations he or she gets to have. People in Sweden and Britain are allowed to have different, or idiosyncratic, reasons for being egalitarians. They’re even allowed to be Thatcherites, or Swedes who vote for the bourgeois parties—remember them?—without being treated as thieves or murderers. People in these places avoid conformism because they don't live by Cohen's demands that one’s private motivations and psychic states be justified to others.

Even so, they can tend to become conformist: I hear, from a recent article by Martha Nussbaum in Ethics, that Norway once seriously considered outlawing private schools as dangers to a common social-democratic ethos. Echoes of Pierce v. Society of Sisters here!

Runnacles questions whether fraternity is in conflict with individuality:

Pursuing different ends, exhibiting contrasting personal styles, such individuals [with fraternal feelings that limit their willingness to insist on the marginal product their labor could command] may regard their solidaristic practices precisely as providing assistance by virtue of which their less-favoured compatriots are able to pursue their own distinctive paths through life by their own lights.

To this I would say, yes, they may. But they also may not. And they should not be expected to—especially if they have other reasons for being egalitarians, say noblesse oblige or bohemian disregard of both wealth and normal people, that would offend a doctrinaire proponent of fraternity but would leave their actions looking exactly the same.

So I stand by my statement that individuality is compatible with egalitarianism but not with fraternity. I oppose only the latter.

Both Runnacles and Bertram wonder if my quarrel isn't with Rawls rather than Cohen. If Cohen is right that being a Rawlsian entails "more radical views about what a just society would look like than is generally supposed" (writes Runnacles), then I'm merely rejecting both Rawls and Cohen. Well, sort of. As the full article version makes much clearer than my post, I think that late Rawls rightly jettisoned some dubious ideals that early Rawls endorsed: precisely the stuff about "fraternity" and "social unity" (and the difference principle as the embodiment of both) that Bertram cites as evidence that my argument implicates Rawls. All of those ideals are essentially incompatible with individualism. "Political" liberalism, which sees the rules of justice as expressing an overlapping consensus rather than a coherent and rationally required moral system, is not.

Runnacles claims, "A theory of justice which does not prescribe the inculcation of its own principles is in very strange shape indeed." Why so? One can believe X to be true and still think it would be a terrible thing if everyone were required to believe X under pain of social ostracism. This distinction is, of course, one way of explaining the essence of toleration. Possible reasons for making it include not only (1) my own determined individualism—which I'll admit is always and everywhere a minority taste and not a durable basis for any society—but also (2) an old-fashioned mild skepticism, or (3) what late-Rawls calls an acknowledgment of the "burdens of judgment" (which looks to me, despite his protests, like another kind of mild skepticism—but never mind).

In any case, the distinction is what late Rawls, with his stress on reasonable pluralism, admitted—and many fans of early Rawls, who see him (perhaps rightly, back then) as an advocate of a single society-wide egalitarian ethos, cannot accept. To the extent that Cohen radicalizes early Rawls and ignores late Rawls, he follows a hoary Marxian tradition of regarding as an enemy the plurality of moral systems that liberal toleration both learns from and promotes.

Political theory and political philosophy: as promised, Jacob Levy has some comments on the difference between them and what causes it.

Update: Russell Arben Fox comments on Levy here. I hope to have something to say about this eventually, but it'll have to wait a little while.

Update (2): Then again, maybe I won't have anything more to say. I don't have much to add to what Tom Runnacles says about learning analytic moral and political philosophy in Oxford. Though I will say that you'd probably have a slightly different perspective if you studied politics or political philosophy with people like Mark Philp, Larry Siedentop, Michael Rosen, Stephen Mulhall, Michael Freeden, or Elizabeth Frazer.

Update (3): Larry Solum has a nice round-up of links related to this topic, available here.

Blogging hiatus: with exams around the corner, I probably won't be blogging much--if at all--over the next two weeks. Hope to be back as soon as possible.

Solum's second post on Rawls is available here. The argument is unfolding.

Apology to "non-Rawls" readers: most of what I've posted over the last week or so is related to the debate over Rawls. I know that this debate is somewhat esoteric and that not everyone can, or even wants, to follow it. For those who are interested but not immersed in this stuff, I can only recommend some readings that will help make the major arguments clear. For those who aren't interested, I'll try to keep posting on issues of more general appeal. Of course, the name of the blog is Political Theory, so, after all that stuff about think-tanks, I'm happy to be on topic. But whether you're more interested in the politics or the theory, I hope you'll keep reading!

Larry Solum defends Rawls in the first of a series of posts. He starts with an intriguing proposal:

Let us put the question posed by Cohen to Rawls i[n] a special session of the Original Position. That is, let's suppose that the representatives have already selected the two principles, and now they must choose whether the principles shall apply to the basic structure--call this the basic structure version of the two principles (for short, the basic structure version)--or whether they should select a variation in which the two principles apply to individual life plans--call this the comprehensive version of the two principles (for short, the comprehensive version. Which version would be selected by the representative of citizens with the two moral powers behind the veil of ignorance?

Larry promises to answer this question in later posts. I think this puts Larry in the position of someone giving a series of lectures over four or five days. On Day One, the lecturer has a clear view of what he wants to say. But after the question and answer session, he has to make some adjustments here and there. On Day Two, the adjustments are presented in the course of delivering the new material. But in the mean time, the audience has had some time to think about things--and the second round of Q&A is much more pointed. The lecture on Day Three is already evolving, and, by Day Four, the original lecture is scrapped in favor a response to the critics. Then again, maybe Larry will confound us all. As you'll see below, I wish him the best of luck!

In that spirit, let me mention a single concern about the way Larry has framed the central issues. The original position does not have a unique subject. It's a heuristic that can be used to model all kinds of principles and institutions. Larry wants us to use it for the purpose of determining whether people who are rational (and reasonable by virtue of being placed within the original position)--or, put otherwise, whether citizens who have the two moral powers (read: the capacity to pursue a conception of the good and the capacity for an effective sense of justice)--would choose to apply Rawls's two principles of justice to their own life plans. Note, here, that Cohen's critique doesn't say anything about applying Rawls's first (equal basic liberties) principle to individual life plans. It's not obvious how that would work, but the prerogatives argument might be seen as an attempt to incorporate liberty concerns into Cohen's argument for an egalitarian social ethos. But this isn't my main concern. The concern that I have about Solum's framing is this: the parties in the special session of the Original Position have already chosen the two principles of justice to regulate the basic structure of society. But Cohen would no doubt reply that this begs the question about the proper subject of justice--or, as he says, about "where the action is." How do the parties in the Original Position know which practices make up the basic structure? And even if they are able to draw a line identifying which practices are in or out, what is the justification for that line? I think this is a difficult question. The best answer, to date, is still Andrew Williams' article "Incentives, Inequality and Publicity," Philosophy & Public Affairs (1998). Williams explicates the idea of the basic structure in terms of institutions governed by public norms. I think Larry is going to have to say something similar about the nature of the basic structure. Otherwise, he's going to have a hard time persuading those who agree with Cohen that he's framed the argument in a way that doesn't already assume all the answers.

Larry is thinking carefully about this issue, and he's taken some time to pull apart a possible defense of Cohen that I suggested below. To be clear, I haven't endorsed that defense--mainly because I'm not convinced that the position it's supposed to defend is correct. What I do think is that Cohen's challenge is very serious, and that Rawlsians have a lot of work to do in responding to it. I re-stated the argument from prerogatives because I think it's the sort of argument Cohen might use to answer someone who claims that his view is too demanding. Of course, there might be other, more compelling arguments against Cohen's critique. I don't think I've said anything to rule out that possibility.

I haven't responded here directly to Larry's argument against "my" prerogatives challenge. That's in part because I'm generally sympathetic to Larry's claim that considerations presented most forcefully in Political Liberalism counsel against applying conceptions of justice to comprehensive conceptions of the good. But I know that this will only make the debate even more expansive. Up to this point, Cohen's critique of Rawls is aimed at A Theory of Justice. He hasn't widened the argument yet to encompass claims derived from Political Liberalism. Maybe that's where Rawlsians will want to make their stand. Perhaps Cohen's conception of justice doesn't meet the appropriate test of legitimacy for a society marked by the fact of reasonable disagreement. Indeed, one might accept a liberal conception of legitimacy and still believe that all of the conceptions of justice that satisfy it are merely second-best. I suppose Cohen could say something along these lines. But I doubt this would satisfy him.

I realize that these remarks are all rather loose. I hope that readers will take them merely as the most tentative of suggestions--and not as my considered views about some very difficult problems in Rawls's political philosophy. I haven't figured out what I think about many of the issues under discussion here. But I do think that they are weighty issues, and certainly worthy of the time that's been devoted to them. I'm looking forward to reading Larry's future posts.

Recruiting for Hart: Ezra Klein has become Director for Student Operations in California for Gary Hart's presidential campaign. Ezra is recruiting students to staff two offices in California, but he also has information about internships in other locations. If you're at all interested, check out his letter here.

Rawls and Nozick: if you're unfamiliar with the works of these great philosophers, you can learn something about their ideas--and their temperaments--from a couple of links have been circulating the last couple days. I thought I would post them here just in case anyone missed them. David Estlund had a wonderful tribute to Rawls in the current issue of Dissent. Julian Sanchez's interview with Nozick is available here.

Comments on Sabl's argument by Jacob Levy at Volokh, Russell Arben Fox, and Matthew Yglesias.

Update: Chris Betram weighs in on Sabl's critique of Cohen, and Jacob Levy promises more.

Another update: Tom Runnacles has a lengthy and thoughtful reply to Sabl. Thanks so much to all those who've taken the time to keep with this discussion!

"If You're Such a Liberal, How Come You Love Conformity?" is the title of a recent article by Andrew Sabl that takes the debate about Cohen's critique of Rawls in a new direction. In an earlier post, I said that this debate is really just getting started. One of the consequences of Cohen's critique will be a discussion among liberal egalitarians about their own fundamental moral and philosophical commitments. Sabl's review gets that discussion off to a provocative start. Unfortunately, the review is on-line, here, only for a fee—although many university libraries will probably subscribe to either the print or the online version. I asked Sabl whether he might be willing to put something on-line. He was very gracious to write a rough summary of his argument for the purpose of participating in the discussion that has been taking place among various bloggers. For a review of recent posts, see Solum's redux. The full details of Sabl's argument are only found in the published version: Andrew Sabl, “Review Essay” on Cohen’s If You're Such An Egalitarian, How Come You're So Rich?,” Society 39, No. 3 (March/April 2002): 78-85. As you'll see, this post is a bit longer than my normal comments on this blog. But I set this page up to discuss political theory, and I think Sabl's contribution is definitely worth reading. What follows obviously assumes some familiarity with Cohen's criticisms. Sabl writes:

Cohen's arguments are ad hominem, but he misunderstands homo liberalis. The points he thinks will dig deep into liberals' souls will only worry those who've tried to create so much common ground between liberals and neo-Marxists that they've forgotten what liberalism means: individualism, pluralism, a society where all may live as free as possible from excessive social demands.

Cohen's argument rightly shows that those who aspire to certain ideals of justificatory community and social fraternity, and who hope that citizens' deepest motivations will line up "unambivalently" with their public principles, must reject a society based on incentives and hope for a moral transformation that will render incentives unnecessary. But liberals should reject the premises: Cohen's vision of justificatory community is too demanding, his ideal of fraternity is the opposite of individualism, and ambivalence and a bit of unpredictability are what liberalism is all about.

The ideal of community Cohen takes as a starting point is, he notes in a footnote, the kind of community he talks about in his 1992 Tanner Lecture, "Incentives, Inequality, and Community" (in Tanner Lectures on Human Values, Vol. 13, Univ. of Utah Press, 1992). This is not a concrete social or political community, real or aspirational, but a rationalist, "justificatory community" where people seek to "make policy together." This vision of community leads to demands for justification that are very broad—we must justify not just new proposals or ongoing collective institutions and practices but everything we do or refrain from doing—and very deep—we must justify not only our actions and choices but our inner states.

Both the breadth and depth do a lot of work, and both may be questioned. Only the breadth lets Cohen make one of his most vivid, and central, comparisons: a talented citizen who won't work without incentives is like a kidnapper who explains that without a big ransom he will have no alternative but to keep the abducted child. (There's another, similar example involving Russian generals who say that only Lithuanian submission will prevented their own invasion, which they otherwise "predict.") These examples are, of course, coercive: the kidnapper has used coercion to force a relationship of threat with a desperate family in order to extort money. But there is no reason to regard such coercive relationships as analogous to typical relationships in liberal society. Ordinary members of a liberal society, in their private relationships, are not forcing others to cooperate with them and are therefore less obligated than kidnappers (as would seem obvious) to justify the terms on which they might choose to cooperate with others. Of course, Marxists think that capitalist relationships are inherently coercive and little different from crime. But that's precisely where liberals disagree: Cohen is begging the question.

What I've called "depth" is even more demanding and more dubious. Cohen envisions in place of incentives (explicitly drawing an analogy between such a secular conversion and Christian hopes for new societies) a mass conversion to a new social ethos, one that would change not just institutions or even moral norms but the personal motivations existing throughout society. He breezily mentions "a socialization process that instills egalitarian principles in the young" ("Incentives," 290) as something such a society would feel obligated to establish.

But surely one thing liberalism means is a deliberate refusal to aspire to such mass conversions and mass indoctrination. To be liberal is to value a diversity of behaviors, motivations, and human characters, often judging some better and some worse but deliberately fighting the temptation to buy moral reform at the cost of uniformity. Respect for others entails restraining oneself from judging the state of others' souls, or at least from claiming the authority to change them. The conversion Cohen longs for would be not only hard to achieve, and undesirable to impose by force (both of which Cohen admits), but undesirable if it were achieved. It would make people too much the same, and too ready to judge others. A liberal society cannot be a society of noodges, and a society of noodges should not appeal to liberals.

There's a distinctive, liberal view of agency that's quite different from Cohen's. Cohen thinks that we're most distinctively agents when least alienated from ourselves—when the principles that govern one part of our lives govern all. (With reason, he cites on the subject Marx's On the Jewish Question.) But liberals have always valued a certain departure from this kind of rational agency in favor of a different kind of agency: one based on individuality, a diversity of character and personal aspirations that could not survive regular social examination of all our quirks to check them for consistency with our actual or attributed moral principles. Liberals think that this kind of agency is not only good itself but socially useful, for it enables the dissent and discovery that drive improvement—in morality (through experiments in living) as in science (through experiments in empirical testing).

Consider some personal rather than social cases. When our friends complain that they cannot bring themselves to carry out projects that they would like to, it is normally considered rude—not respectful of agency—to tell them to be better people. Instead of going after their characters, we suggest changes in their external circumstances. We counsel the colleague who wants to learn French to take a course with regular exams; we suggest that our unfit friend hire a personal trainer or join a running club. But financial incentives operate precisely like this. They preserve our respect for individual character. And when applied throughout a society, they make certain outcomes more likely (as when health plans offer to buy gym memberships for members to keep them healthier) but let individuals whose life plans differ from the collective ones do as they please if they’re willing to forego the incentive.

It's not clear that Cohen really understands liberals' reasons for valuing liberalism. His reading of Mill recognizes only the reformist side of Mill's thought, while slighting Mill's reasons for wanting reform to take place through criticism and example rather than social coercion. The words "tolerant" and "toleration" appear only as pejoratives in his work; he seems to fear rather than treasure a society in which moral views and systems differ fundamentally in ways that track the variety of individual circumstances, backgrounds, and judgments. And he neglects the possibility that liberals who limit the idea of justice to the "basic structure" of society may be doing so not out of mere inconsistency but out of a recognition of moral pluralism. Justice matters, and so does the need to justify one's actions, but perhaps these good things must yield at some point to other (intrinsically) good things: privacy, say, and individuality.

The gap between neo-Marxists like Cohen, however "democratic" or non-authoritarian, and liberals, however "left" or "social," is bigger than many in both camps think. Marxists value fraternity. Liberals value individuality. Marxists think people in society should try to hold as many values and projects as possible in common with their fellows. Liberals think we are better off having very few common projects as possible in common with their fellows. In fact, those whose lives depart greatly from those that are socially expected, as long as the departures are willed and interesting, are quite likely to be the best people—both the most authentically happy and the most beneficial to society. One of liberalism's central points is that social progress need not, and often cannot, be achieved by increasing social feeling.

Even when liberals support redistribution and the welfare state, as we often do (quite rightly), it's for reasons that distinguish us very sharply from neo-Marxists. Marxists like the fact that the welfare state expresses commonality and solidarity. Liberals hope that it does no such thing: that it will free all citizens from having to worry about people they don’t particularly like (and shouldn’t have to): free the poor from fawning towards the rich, and free the rich from the unctuous artificiality of voluntary charity.

Granted, certain rationalist liberals and those who seek to build bridges with communitarians and radical socialists in fact do aspire to these ideals of mutual justification, fraternity, and rational consistency as the basis for social unity. They do indeed play down, or abandon altogether, individuality as liberalism's animating idea. And they do indeed try (a la Dewey) to make liberalism consistent with an extremely demanding form of social solidarity. These kinds of liberalism may indeed be inconsistent of hypocritical. And these kinds of liberals may indeed have dug their own graves—with Cohen as gravedigger. But the rest of us liberals may safely whistle past them.

As I said, the debate is just starting. If you've got comments, be sure to copy them to Sabl.

In defense of seditious libel? Josh Chafetz at OxBlog commented earlier today about local authorities who declared certain federal laws unconstitutional. In the midst of his post, Chafetz wrote, "The [Virginia and Kentucky] Resolutions argued that the Alien and Sedition Acts were unconstitutional, which they undoubtedly were." This got me thinking. I agree that the Sedition Act was unconstitutional--nothing too controversial there. In fact, I've always been amazed that the Sedition Act was so overtly partisan that it applied only to speech and press directed against "the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President." Any glaring omissions here? What about the Vice-President? No need to protect Jefferson from the contempt and hatred of the people.

The Sedition Act was a calculated attempt to suppress political opposition, and it has been completely discredited historically. But Chafetz's comment left me wondering whether there is anything to be said for a law against defaming the government? Suppose for example, that someone publishes an elaborate but demonstrably false report claiming that the federal government is operating death squads targeting a particular minority group. If this report gained currency, it might exacerbate mistrust of the majority, spur outbreaks of violence against public officials, and, more generally, diminish public confidence in government. The question is why should the publisher of such a report have the freedom to defame, libel, or maliciously criticize the government? Madison's answer in the Virginia Report, available here, is that "it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing characters and measures." Freedom of the press may be costly to government. People will sometimes publish unjustifiable reports that are nevertheless quite damaging. Yet, as Madison says, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." Because the free circulation of facts, opinions, and ideas is crucial for effective and legitimate political opposition, and because of the difficulty in isolating abusive practices, the government should not have the power to prosecute seditious libel.

This argument has carried the day in the United States. It forms the core of contemporary first amendment doctrine. We can thank Justice Brennan for enshrining Madison's principles in New York Times v. Sullivan (1964). But is Madison's argument as strong as we think it is? Consider a hypothetical seditious libel law that applies only to (i) false factual claims whose publication would (ii) threaten imminent and serious harm. The hypothetical statute might also require (iii) that the government establish the falsity of the claims in question beyond a reasonable doubt, and (iv) that the prosecution show actual malicious intent on the part of the publisher. Additionally, the statute might also require (v) that the government pay lawyers' fees and damages if it loses its case. Would a law of this kind still have a chilling effect on legitimate political speech? I think it probably would. But for the sake of argument, consider a defense of the hypothetical statute that builds on arguments analogous to some of those made by the Supreme Court today in Virginia v. Black (upholding Virginia's ban on cross-burning with the intent to intimidate), available here. Maybe any speech covered by the hypothetical law would always be covered under other laws against incitement or intimidation. To that extent, the seditious libel statute would be redundant, except perhaps for sentencing purposes. It would merely be a way to send a message that citizens have a duty not to level malicious--and demonstrably false--claims against the government. Maybe the law would never actually be applied. It would serve only as a symbolic reminder of the importance of honest and responsible political criticism. Is Madison's argument still forceful against a law hemmed in by these types of restrictions?

To be very clear, I am not advocating that government reinstate the crime of seditious libel. I'm asking the question because I think it's easy to forget the appeal of laws against defaming the government. When the government has as much power as it does in the United States today, these types of laws don't seem all that important--indeed, we have good reason to see them as highly pernicious. But in unstable democracies threatened with civil dissolution, or in countries ruled by so-called "liberal authoritarian" regimes, the arguments in favor of restricting the freedoms of political speech and press may seem much more compelling. At any rate, I'm reminded of Mill's line "that if opponents of all important truths do not exist, it is indespensible to imagine them, and supply them with the strongest arguments which the most skillful devil's advocate can conjure up." We're all familiar with the most powerful objections to having a crime of seditious libel. What's the best argument you can come up with in favor of it?

Fox and Unlearned Hand both have interesting posts today. Russell Arben Fox has a lengthy response to Gary Hart's question concerning whether it's democracy or liberalism we really care about in the Islamic world. Also, I loaned my copy of Adam Swift's book to Unlearned Hand--who is, as others have rightly noted, quite learned. Swift straightens out the mess that is Berlin's two concepts of liberty. See Unlearned for the details, or, better yet, pick up Swift's book for yourself.

Is there progress in moral and political philosophy? The guys on OxBlog are pondering the question: "Has our knowledge of truth and justice advanced beyond [Plato]?" Chafetz answers yes, and I agree completely. When I've got more time, I'll try to say more. Issuing lots of promissory notes here . . .

Should politicians blog? Charles Kuffner and Ezra Klein are having an important discussion about whether it's a good idea for Gary Hart to be blogging. Personally, I think the only problem with Hart's blog is that it doesn't link to a certain other blog . . . But, more seriously, I think Ezra's right that controversy over political blogging can only be a good thing for Hart's potential campaign. Hart understands the significance of new technologies and their ability to transform political conversation. Also, I think the fact that he has a blogroll and comments places him squarely in the blogosphere. Compare Dean's blog, which looks more like a rolling press release. Bloggers are right to be giving Hart a lot of credit for taking this medium seriously.

Leviathan in Milton, Melville and beyond: Patrick Belton, a friend from Oxford and current contributor to OxBlog, has a wonderful post today about the idea of leviathan. His comments were prompted by the discovery of a "colossal" squid caught this week by fisherman off the coast of Antarctica. Belton is blogging at his best.

Even more on Cohen's critique of Rawls: one of Jerry Cohen's former students, Tom Runnacles, defends the line. As I said below, this debate is really just getting going.

Affirmative action: the Supreme Court heard arguments in the Michigan cases today. For a great set of related links, see Solum's Legal Theory blog.

Updates on political theory in blogosophere: Bertram, Solum, Yglesias, and Fox all have more to say about Rawls and Cohen's critique of the Difference Principle. Political Theory Daily Review has some good links today. One is to a review of Richard Posner's new book Law, Pragmatism, and Democracy. I saw Posner present some of the chapters of this book at a panel in London about year ago. He went out of his way to defend Korematsu, which is the Supreme Court decision that upheld the internment of Japanese Americans in World War II. Pretty shameful stuff. In the context of discussing Bush v. Gore, Posner also rejects the requirement of judicial candor, so that judges are not obligated to give us their real reasons for deciding the case. (This should inspire lots of confidence when we're reading Posner's opinions.) I think this amounts to an endorsement of judicial lying, but I'll have to defend that claim some other time. Lastly, Political Theory Daily also links to an interesting panel interview with Stanley Fish, Stanley Aronowitz (of Social Text fame), and Stephen Balch. The subject is Fish's article on why "A University is not a Political Party"--a theme that dovetails nicely with some of what I've written below. I hope this keeps you busy for awhile. I may not be blogging much over the next few days.

Rawls, Cohen, and the Difference Principle: Chris Bertram and Lawrence Solum have been posting on Jerry Cohen's critique of Rawls's difference principle. If you're new to this debate, Adam Swift has a very accessible introduction to the basic arguments toward the end of the equality chapter of his book Political Philosophy. Solum says he doesn't see why Cohen's argument has had such success:

If Cohen were right, everyone who was not in the least advantaged group would be obligated to adopt the welfare (loosely speaking) of the least advantaged as their own goal in life. So long as there was a least advantaged group, no one outside that group would be entitled to their own comprehensive conception of the good. No one could pursue art, music, religion, or building a better Internet as a life plan, unless their action would produce the greatest benefit for the least well off as compared to any alternative course of action.

Solum is objecting here to the moral demandingness of Cohen's conception of justice. Someone sympathetic to Cohen's argument might respond to this criticism by saying that one's interest in pursuing a comprehensive conception of the good is protected by a personal prerogative, or perhaps by the value of liberty. But that this value of liberty, or the prerogative to pursue one's personal interests (defined here expansively in terms of a conception of the good), is in tension with the demands of social justice. Justice requires that we act so as to benefit the worst-off. Yet we recognize that justice isn't the only moral value. A plausible balance of moral values will provide some space for the pursuit of personal interests. The upshot of the argument, however, is that citizens must consider whether deviations from equality-producing activities are justified by their personal pursuits. They cannot avoid making these sorts of difficult judgments by claiming that their every-day decisions are not the proper subject of justice. I take it this is what Cohen means when he says that justice requires a social ethos according to which citizens apply principles of justice even when they are making ordinary decisions about how to lead their daily lives. Does something like this argument make Cohen's critique more plausible?

Rawlsians are clearly exercised by Cohen's critique. Josh Cohen, Thomas Pogge, Andrew Williams, David Estlund (who develops a criticism of Cohen based on personal prerogatives in his article on "Liberalism, Equality and Fraternity in Cohen's Critique of Rawls," Journal of Political Philosophy (1998)), and others have written some compelling responses, but I think this debate is just getting under way. Lots more ink will be spilled on it before people are satisfied that the major issues have been clarified--which is as much a testimony to the depth and complexity of Rawls's theory as it is to Cohen's criticism of it.

I wish I had time to say more about this. I'll be blogging more lightly this week than last (which was sort of a mad rush out of the gates). Work is finally catching up with me . . .

Gary Hart has started a blog. Hart, who is considering running for president in 2004, recently completed a doctorate in political theory at Oxford. His dissertation was published last year by Oxford Press. The book is called Restoration of the Republic: The Jeffersonian Ideal in 21st-Century America. Hart could be the first presidential candidate-blogger. Here's what he says about it:

The Internet is clearly the most important new medium to help increase people's involvement in a "primary of ideas." It's an amazing tool for people to share ideas, talk about their concerns and their dreams, and debate the many important policy ideas that will affect our country's future . . . I cannot promise to be as skillful at this as many of those who have made the blogger universe such an important part of the internet. However, I'm committed to using the Internet as a vital tool to engage people on critical policy matters and the future of our country.

Hart recently spoke at the University of Virginia. His speech, which was delivered as part of his on-going series of major policy addresses, is available here

Update: Apparently Howard Dean also has blog, although it seems much less personal. The comments on Hart's blog raise all kinds of interesting questions. Can a major public figure survive in blogosphere? Can interaction on a blog of this kind be meaningful, or will the comments degenerate into a mixture of chat-room nonsense and vicious personal attacks? Note that Dean's blog doesn't allow for comments, and that Hart's comments are moderated--which I think is a smart move. As far as I'm concerned, though, the ability to comment--to interact with the blogger and other readers--makes all the difference in the world.

Brandeis and Yoda? So here's a line from Justice Louis Brandeis' famous concurrence defending the freedom of speech in Whitney v. California (1926):

But they [the Founders] knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government . . .

And, of course, here's Yoda:

Fear leads to anger, anger leads to hate, hate leads to suffering!

Coincidence? Maybe Lucas has been reading old Supreme Court opinions.

See the advertisement above? (Actually, you might not, since it comes and goes.) There's a small irony here. I just noticed that the ad at the top of my blog says, "Define Libertarian: Come learn about libertarian ideas at a free summer student seminar." It's posted by the Institute for Humane Studies. I went to an IHS seminar for grad students a couple summers ago, and I've been recommending them to my friends ever since. I don't agree with a lot of what the IHS has to say, but I thoroughly enjoyed the experience. I'm still in touch with some of the students I met at that seminar. I think the IHS does wonderful things for the students who participate in its programs. I just wish there were more programs like it representing different political and philosophical perspectives.

Junkets for Judges: At the risk of becoming a one-horse blogger, I think it's worth commenting on the efforts of special interest groups, especially those on the right, to influence American federal judges. I've already discussed the left's failure to fund think-tanks. Here's one place where that failure really hurts. Consider this report from the Community Rights Counsel (CRC):

[R]ight-leaning, anti-regulatory organizations dominate private judicial education. Indeed, the three organizations hosting the most trips—the Law and Economics Center (LEC), the Foundation for Research on Economics and the Environment (FREE) and Liberty Fund (collectively “the Big Three”), with 246, 194 and 100 trips reported by judges, respectively—share a remarkably similar conservative/libertarian ideology and structure their seminars to advance this ideology.

Reported attendance at Big Three seminars increased significantly between 1992 and 1998, with a record 88 judges taking trips in 1998. With about 800 active judges at any given time, this means that about 10% of the federal judiciary takes a Big Three trip each year.

A couple years ago, ABC's 20/20 did a story about a group of federal judges who were vacationing in Tuscon under the aegis of an “educational” seminar sponsored by the Law and Economics Center of George Mason University. That story, along with documentation from the CRC, prompted Senator John Kerry and Senator Russ Feingold to propose the Judicial Education Reform Act of 2000, which would have would have prohibited “seminar gifts” and established a Judicial Education Fund for the payment of reasonable travel and accommodation expenses incurred by judges attending “panel discussions, conferences, colloquia, symposia, and other similar events.” The Judicial Reform Act was never enacted. Indeed, its most prominent critic was Chief Justice Rehnquist. At a meeting of the American Law Institute, Rehnquist took the unusual step of attacking a piece of pending legislation. Setting aside the question of whether it was appropriate for Rehnquist to comment on the issue, I want to ask whether his criticisms are valid. Here's his first argument:

One could easily get the impression . . . that the real problem is too many judges playing golf in the middle of the afternoon in Tucson in February. There was a time when federal judges worked less than they do now; I remember many years ago a judge referring to an appointment to one of the courts of appeals as being a "dignified form of semi-retirement." If that was ever true, it long ago ceased to be. The pressure to keep up with ever-increasing dockets requires and receives hard work from these judges. And so far as the locale of any seminar is concerned, does anyone really think that a seminar in Tucson in August or in Milwaukee in January would attract as many participants if the scheduling were reversed? If you do think that, I suggest you schedule the next meeting of the ALI here in Washington for the middle of August.

Just in case we thought federal judges were really interested in being "educated," Rehnquist sets the record straight. They're only interested in being educated at seasonal resorts. Seminars in climate-controlled hotels aren't worth the trouble.

Sarcasm aside, though, the problem with this first reply is that it doesn't meet the main objection to junkets for judges. Rehnquist thinks that the public might worry that federal judges aren't working hard enough. But the issue isn't that federal judges take time off for vacations. The issue is that those vacations are funded by a handful of special interest groups who are paying nicely for access to federal judges. Judges get to play their 18-holes, but only on the condition that they attend seminars geared toward promoting the agenda of the group sponsoring the trip. The central charge against junkets for judges is essentially one of corruption. Judges get extravagant vacations sponsored by corporations and foundations seeking to advance their interests. The bottom line is: no "education," no vacation. Which just means: no access, no money. Rehnquist simply doesn’t meet the objection that junket trips and other "educational" gifts undermine the appearance of judicial propriety and that, consequently, they diminish public trust and confidence that judges will make impartial decisions.

Rehnquist has a second, and more important, argument based on the freedom of speech:

The notion that judges should not attend private seminars unless they have been vetted and approved by a government board is a bad idea. It is contrary to the public interest in encouraging an informed and educated Judiciary, and contrary to the American belief in unfettered access to ideas.

Now, depending on how trips for judges are regulated, I agree that there might indeed be free speech concerns. But even if we reject the idea of regulating the content of educational seminars for judges, legislation could be tailored to prohibit judges from accepting reimbursements over reasonable levels to cover the cost of transportation and accommodation to such seminars. (If you really want to go to that seminar in Hawaii, maybe you need to pay for it yourself.) No more rounds of golf on the dime of the Scaife Foundation. I don't see any problem with judges attending Liberty Fund seminars (disclosure: I've been to one myself). But I do see a problem when judges accept large gifts in the form of what are essentially paid vacations.

At the moment, there is no pending legislation on this issue--and hardly any public discussion about it. Which raises the question: what should the left do about it? It seems to me that there are two options. The first is to work toward reintroducing something like the Kerry-Feingold legislation--perhaps with some modification to meet legitimate concerns about the freedom of speech. Second, and as you might expect, I think left and center-left foundations should sponsor their own "educational" seminars. Some people on the left will probably want to take the moral high ground here by continuing to criticise federal judges who go on junkets trips. But, short of successful legislation, I think the better strategy is for the left to get itself into the game. And, to come back to my earlier posts, that takes big money.

The Community Rights Counsel has done some very good work on this issue. Its report, available here, is a must read. Its called Nothing for Free: How Private Judicial Seminars Are Undermining Environmental Protections and Breaking the Public's Trust. Former Chief Judge Abner Mikva wrote the forward for the CRC report, but he also submitted this article to the New York Times. Also courtesy of the CRC, you might want to read the transcript of ABC's 20/20 story. ABC News did a write-up on their televsion segment called "Lobbying the Judiciary." Finally, if you want to check in on your favorite federal judge, the CRC keeps a database that can be searched by organization, judge, court, and year (from 1987 - 1998).