Where the rubber meets the road: the intersection of law and morality at the FedSoc student symposium

I'm sitting in a hotel room in Kankakee, IL - or rather, was when I started typing this, I'm back home now - about an hour south of Chicago, where Federalist Society folks from across the nation gathered this weekend for a symposium on "law and morality." This post will give a brief overview of the proceedings, interspersed with a few notes, photographs (click for larger versions) and observations from yours truly. I have 26 pages of notes, so for the sake of most readers, I'm going to try to keep it (as) brief (as possible), and stick the whole lot beneath the fold.

Still: if you're a federalist, or interested in this sort of stuff (or really, if you just want to know what I look like), click in...

(Let me apologize in advance: I've tried to quickly get this into a presentable form, and it has shortcomings - so the disclaimers on this post are twofold: I'm sorry if it isn't always clear when I'm speaking for myself and when I'm just reporting what panellists said, so before you flip out and verbally flip me of, just ask for clarification. And as a corollary to that, when I'm reporting on what the panellists have said, I haven't extensively fact-checked their assertions, so before you flip out and tell me that St. Augustin never said that, or that Redrup said no such thing, keep in mind that I'm reporting here.) Lastly, this post is very long (7000+ words) and was authored while on the road, with only a quick review to avoid egregious errors. There are typos. I've made my peace with that, and I hope readers will be understanding about it.

For reasons too long and boring to outline, I skipped the opening day and showed up Saturday morning, where the fun opened1 with a panel on morality in the Eighth Amendment context.

Judge Tim Tymkovich of the Tenth Circuit moderated, and offered some opening remarks. Referring to Trop v.Dulles' elucidation of what has become the standard test ("[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"): "grandiose and important words, but what do they mean?" Quite! Tymkovich sketches a few areas where the debate is progressing. The demand for the quality of evidence required to convict in capital cases has gone up; the number of executions has gone down (in 2006, there were 53 executions and half of those were in Texas). Tymkovich seems to connect the two, although I'm not sure that doing so makes much sense - I'm not sure what the average death row stay is, but it certainly isn't less than eight years, and the primary arena for standard of evidence to convict (which I take to be offered in contradistinction to "to uphold a conviction on appeal"), one would think, would be the trial stage. So increasing rigor in evidentiary demands, one would think, would show up in a drop of capital sentences handed out, not executions carried out.

Tymkovich also notes that in terms of the methodology of execution (I know, it sounds macabre): there have been a string of habeas and § 1983 challenges to lethal injection, but it's important to note the level of generality: these are challenges to the protocol, not the underlying constitutionality of the death penalty per se, or even of lethal injection per se. The Supreme Court has been dodging the bullet on this one (SCOTUSblog's Jeff Goldstein had a very strong test case lined up last year, IIRC, but the court denied cert, and the Hill case that got everyone flustered was a procedural issue not on the merits).

Lastly, Tymkovich suggests that a number of the new crop of Governors have expressed deep discomfort about the death penalty (for example, the new Governor of MD called it "inherent unjust," and the paradigm example of the possible consequences of this may be akin to the mass commutation undertaken by Gov. George Ryan. My thought would be that, doesn't this suggest a possible way to force a public accounting - if a gubernatorial or presidential candidate suggested that they would commute all capital sentences to life imprisonment, it'd be interesting to see what happened to that candidate. My guess is that they'd disappear without trace.

Laurence Claus of UCLA is up next. He stresses that the Eighth Amendment must be understood to have taken its language from the 1689 English Bill of rights, and suggests that at very least, our understanding of its content can be informed by understanding the evils that the framers of the 1689 bill were attempting to address. In the main, says Claus, that concern was of arbitrary and repressive behavior by the king's judges - ludicrous fines and bails, and punishments imposed that were not within the norms provided for by the common law.

There are three principle interpretations of the cruel and unusual punishment clause, he suggests: that it requires proportionality (but see discussion next paragraph), that it refers to the viciousness of the method (which is the position he attributes to Scalia), or that it forbids invidious discrimination in its application to different individuals. The Supreme Court, suggests Claus, will use any and all of these depending on the case - compare, for example, Harmelin with Atkins.

Claus also makes the surely standard point that the very absence of lengthy debate about the meaning of "cruel and unusual" in the amendment's legislative history, suggests that its meaning was so clearly understood as to require no debate. I'm never sure of the valence of that argument to nonoriginalists, but I tend to agree with him. Discussing proportionality in sentencing, he made a neat textual point that the 8th Amendment forbids excessive fines, excessive bail, but cruel and unusual punishments. Moreover, it interests him that to some extent (not so much as he suggests, I think), that "excessive" fines or bail can be measured empirically, because they operate not as absolutes, but relative to the capacity of the condemned to pay up, while of course proportionality in other punishments necessarily gets us into difficult moral questions that have no clear standard.

Ron Allen served up some interesting thoughts, so much so that it was very difficult to remember to keep taking notes! Most of what I kept was bite-size; Allen observes that most of "what passes for normative analysis in legal scholarship is little more than an exercise in mapping the topography of the author's mind." Normative views are, by definition, subjective, which makes it hard for courts to use them, because courts are supposed to rely on rational reasoning. Still, judges may ultimately fall back on moral reasoning when other sources of law run out before the case is decided, and that isn't inherently problematic, unless what's happening is that the case hasn't run out of applicable law, but the applicable law cuts against how the judge wants the case to come out. As a general rule, he thinks that regardless of the legitimacy of the matter, there's a utilitarian benefit to letting legislatures decide moral issues, which is that it's easier for a legislature to change its minds.

Allen is also concerned about the existence of fundamental moral truths - most of what we regard as fundamentally moral is a subjective position not shared by the rest of the world (for example, that outright subjugation of women is bad), and that historically, very bad things happen when people who claim to be in possession of ultimate moral truth obtain political power.

Lastly, I loved this Allenism: "cats are a demonstration of the perverse sense of humor of nature." Love it!

At this point, I slipped out for a minute2On my way back to the theater, though, who should I find at the breakfast buffet? None other than Judge Diane Sykes (see adulatory posts passim); there was a moment where I think I just stood there, mouth slightly agape, trying to figure out if the person before me was actually who I thought it was. This was particularly neat, because one of the tiebreakers that persuaded me to register was that she was listed as a speaker (moderator, actually, but that wasn't clear at the time); I'd hoped to have a chance to at least say hi,3 but as luck would have it, we got to stand around and talk for a while, which was easily the highlight of the whole event for me. I will have to send a thankyou card to Michael Moore. ;)

And no, in the end, I couldn't resist a moment of David Lat-style groupie-ism:

(I make no apologies on this one - she's much learned in the law, a rock star of the federal judiciary, someone I consider to be in the top draw of potential SCOTUS nominees, and to top it off, she's very nice and was frankly the best looking woman in the building [no mean feat - see footnote 1]. And lookit, I figured that if I didn't ask, I'd kick myself later).

So what was Sykes doing at the gathering - her first FedSoc student symposium since she attended one of the very early ones as a Marquette law student herself, if I understood right? Her task today was to unflappably moderate the discussion of the inflammable topic of gay marriage. This was a two-member panel, starring Amy Wax and Robert Bork lookalike Loius Michael Seidman.

Wax's position seems to be very similar to what troubles me about gay marriage: a kind of Burkeian-Oakeshottian concern about what we're unleashing. She begins by explaining the premises of Burke and Oakeshott (necessary at FedSoc gatherings, since not all attendees are that way inclined - plenty of libertarians and some liberals here), which I take it requires no exposition here at SF. Wax notes the dissonance between elite opinion on gay marriage and massive popular hostility to it; unlike the abortion debate, suggests Wax, where the elite is generally pro-choice but the people are evenly split, on gay marriage there is a clear disconnect. Her friend Linda Greenhouse suggested to her recently that "there exists not a single, solitary argument against legalizing gay marriage," remarks made against the backdrop of constant and sustained rejection by the people.

What could cause opposition? Wax dismisses homophobia, and suggests that while there might be sound religious reasons to oppose it, a secular case is necessary. She builds that case around the Burkeian concern for massive social upheaval and the utility of the traditional family in raising children. She suggests that students from a liberal background often find the idea of the moral role of social institutions alien. Marriage, she suggests, is a social institution that acts as a heuristic, a guideline, a script for how to make close relationships work. Stick to the script and you can't go far wrong, and moreover, not only does one not HAVE to devise a new script out of one's mind, conservatives are skeptical that people CAN do so: we are, Wax thinks, deeply mistrustful of moral innovation, and I think she's probably right. Contrast the liberal view that life is an a la carte menu (my characterization, not Wax's), and so who's to criticize what's on anyone else's plate. Wax isn't satisfied by that liberal answer; she suggests that two infirmities dog it. The infirmity of intellect means that people simply cannot canvas all the consequences of decisions that they make, especially to the extent these choices affect other people. And the infirmity of will, which goes to the instrumental value of morality: it is a code that restrains people from doing what they want, which may be selfish and may be destructive. (in a Doctor Helen-provoking aside, either Wax said or I thought I heard her say that more specifically, it restrains the actions of men).

On the topic of childrearing, Wax also suggests that a parallel example is single motherhood: statistically speaking, single parent families and reconstituted families are a disaster (she asserts), and in vast disproportion stock the ranks of the malcontent. The experiment has been a disaster, but in order to get the empirical data that shows it was a disaster, we had to let out of the bottle a genie that we might not be able to put back. Ultimately, Wax presents three arguments against same sex management, none of which I find convincing: (1) the procreative function: same sex marriage simply can't meet the gold standard of a biological family; (2) the role of sex in defining marriage - failure to consummate the marriage was once grounds for annulment; (3) the presumption of monogamy in marriage - while it's one thing to lapse, it's quite something else to disavow, and gays like Andrew Sullivan (Wax says) have equivocated about whether they accept monogamy in that context).

Seidman begins by agreeing with Justice Scalia that Lawrence and similar cases implicate contestable moral values. Unlike Our Hero, however, Seidman, doesn't see why that's objectionable, and argues that moral judgments are inevitable (cf. remarks by Allen, discussed supra part I(c)). Equal protection demands making moral judgments, in his view. The equal protection clause requires us to treat two people alike to the extent they're alike, but also to treat them differently to the extent they're different. Gay marriage poses a problem of knowing which is which.

He describes his starting point on the question as being the tremendous damage done to individuals by insisting on adherence to a script - to put it in Wax's argot - that doesn't always work for some people. Some people can't or won't follow the script, and demanding that they put a round peg in a square hole creates massive unhappiness (for some reason, this reminds me of "Why Mommy is a Democrat" (vivisected here by Ann Althouse - I think I'm getting the connection from an image of liberals, like an overprotective mommy, wanting to make a world where no one is unhappy or hurt or has to do things they don't like, to make it all better). Pivoting from marriage, he asserts that gay sex is in fact a positive good, because it is a subset of sex, and sex is good, because sex is pleasurable, and because pleasure is good ergo, gay sex must be good. But more, even, than that: done right, it's pleasure shared, so if pleasure is good, shared pleasure is even better. And even more than that, gay sex suggests what sex might be like when severed from pervasive gender hierarchies;4 to explain this, he relates an anecdote where a handsome young man asked to make an announcement at the beginning of the lecture, which turned out to be that for valentines or charity, something like that, a group on campus would deliver roses for students. A flamboyantly gay member of the class stood up and asked: "what do you need in order for a delivery to happen?" "Just the name of the recipient." "Well," said the class member with a grin, "what's your name?" Everyone in the auditorium laughed, but Seidman's observation was this: what if the person standing at the front of the class had been a yhoung woman, and the young man standing up were, y'know, one of these big macho hetero guys. Seidman doesn't think anyone would have laughed, and he envisions delegations going to the Dean's office (he's probably right about this).

(Don't worry if you're not following how this relates to the subject at hand - neither did most of the auditorium, but it was great fun to watch).

He also adds that he finds it bemusing that conservatives are afraid of courts legalizing gay marriage - Lawrence, after all, constitutionalized the one-night stand. Why would conservatives prefer casual sex to be constitutionally protected and not long-term relationships? I'm going to be charitable and assume this was trying to be provocative, rather than shockingly naive.

A couple of interesting points from rebuttal time and questions:

1. Wax makes a great point - one generally true I think, not just in this arena: conservatives are willing to tolerate people deviating from the script, but they resent being asked to endorse (which is, in this case, how they see gay marriage). Liberals cannot cope with that kind of complexity - they demand a bipolar world where everything is either embraced or eradicated. And you can see it in their language: there's a kind of godwin's law analog in which in any conversation between a liberal and a conservative, the liberal will eventually accuse the conservative of wanting to wipe out homosexuals. Like Greenhouse, they can't comprehend a world in which one could accept that something happens without demanding society puts its imprimatur on it.




2. Wax - who has an adorable habit (with mostly anyone else, it'd probably be annoying) of inserting "right?" every other sentence - complains that Seidman's case is essentially all about "me" but that marriage is precisely not about "me" - it's about children and it's about "us."




3. Citing slavery and anti-miscegenation laws, Seidman suggests that "it involves reason to know which traditions we're going to follow." Of course, the problem with that is that it stands precisely athwart Oakeshott, but interestingly (to me), it also stands on the fault line of my concerns about pure Burkeian conservatism (viz. that it lacks an escape hatch for situations when a traditional value is patently unjust). Wax counters saying that we're not opposed to reason, and I observe in the margin that perhaps the analog is de novo review: when a court considers a matter de novo, despite the literal meaning of the term, the court doesn't review the question "anew," from the ground up, rather, it re-evaluates the extant sources of authority, as they apply to the question. I'm still pondering this question.




4. Seidman challenges Wax's argument about children by asserting that while reconstituted families do fail at an alarming rate (this is apparently an empirical fact, although I've never read data to that effect), gay families are more likely to have children who have not been traumatized by divorce. This assertion is a little puzzling, but I guess the point he's getting at is that ordinarily when you have a reconstituted family, it's the parent of the children remarrying, whereas in gay marriage families, by definition, children are adopted. None-the-less, I found this point pretty unpersuasive, because obviously the adopted children have come from somewhere, and the story of that "somewhere" is likely to be no less traumatic and psychologically damaging (this is where I slip in the assertion that everyone is damaged to some degree, and that our conscious and unconscious attempts to cope with and compensate for that damage in large part define our personas) than the trauma of divorce. I have to add that I found this whole section quite awkward, because I'm a stepparent myself, and I know that Judge Sykes - this panel's moderator, recall - has herself gone through divorce - it's almost surreal watching a debate almost clinically abstracted from real human connection where it is repeatedly asserted that the numbers say that I'm going to be a failure as a stepfather.
   
   The childrearing argument has never particularly appealed to me, although I do agree with Wax that adoption by gay families - which isn't quite the same issue as gay marriage - we would be unleasing a massive social experiment with unpredictable consequences. Wax suggests that precisely because we don't know what the consequences would be, maybe that's a good enough argument not to find out, particularly since the traditionalist view of the ideal environment for raising children has been born out against the last novel experiment in childrearing, single-parent and reconstituted families. This placid abstraction, however, is disturbed by ripples from Seidman's observations on another point, which is that such arguments were surely also made about intercultural, intersectarian, and most of all, interracial childrearing.




5. Seidman observes that while many (understatement in original) straight people find the idea of gay sex disgusting, some gay men find the idea of straight sex disgusting; this prompts me to wonder in the margin whether this doesn't suggest that perhaps homosexuality can be viewed through a feminist lens wherein male homosexuality might be considered a particularly acute form of misogyny. After all, most of the behaviors we normally associate with misogyny stop somewhere short of finding women physically repulsive to the point of carving out an entirely separate sphere from which they are completely excluded; how many times do you have to be dropped on your head as a baby, what kind of traumatic psychological damage has to be inflicted before a person could start to be viscerally repulsed by vaginal sex, a conclusion that sets one at odds with (depending on your point of view) either the divine order of things and/or tens of thousands of years of evolutionary inertia?




6. In audience questions, a chap from Yale makes a very good argument that no fault divorce represents the bigger change to marriage, since that development fundamentally changed the parameters of marriage - specifically, the "exit rules" in a way that directly affects every person entering marriage; he contrasts gay marriage which doesn't really change the character of marriage in a way that directly affects the conduct of individuals entering it. In other words, where conservatives are usually concerned about the affect on the institution of marriage in the aggregate, Yale Guy Whose Name I Don't Remember is trying to anchor the point directly to the affect on individuals entering marriage. Yale Guy Whose Name I Don't Remember, I salute you! That is a very, very good point. I'm just not sure that it's a point that weighs in favor of gay marriage rather than cutting back on no fault divorce! Seidman suggests that the question may turn on what characteristics of marriage are considered inherent vs. merely traditionally observed, and argues that the biggest change in the institution of marriage was the collapse of the separate sphere theory.




7. Another chap whose name I momentarily don't remember but who I hope is going to email me asked a question couched in a terminology I've been looking for in my attempts to explain my view of Constitutional rights vs. natural rights: he uses the terms positive rights and negative rights, where a positive right is a natural human right (the right to work, the right to be left alone, and so forth) and a negative right is a prohibition on government. It might not overstate the case to say that THE difference between legal liberals and legal conservatives is whether Our Constitution embodies the latter, or the former expressed as the latter. That immediately made me think how peculiar it is that in the bill of rights, which in my view is purely negative rights, the court has converted one right - the right to counsel - from a negative right to an explicitly positive right (see Johnson v. Zerbst; Gideon v. Wainwright). Asking the questioner about this terminology later, he suggested it came from Randy Barnett - who, as it so happened was walking past at just that moment. I intend to follow up with Randy on this, because his perspective on rights makes it seem rather odd to me that he'd propound this sort of formalist distinction.

Lunchtime featured a frank discussion about dos and don'ts if you intend or would like to be a lawprof with Volokh Conspirators Randy Barnett and Orin Kerr. Most of this is of limited interest to readers here, and particularly since Randy intimated at one point that at least some of his remarks were off the record, my thought about this section is as follows: I have a couple of bullet points that I think do merit reposting, and I'm going to email Randy and Orin and seek permission to repost those. Check back later. [Update: with Randy and Orin's permission:]

1. Randy suggests that publication used to be a plus; it's nowadays a necessity.




2. I took a way from a brief discussion about how appointments committees will go through resumes that there may be something of an element of pure luck in play: this is elementary employment practise, but the more positions are open and the more resumes the committee has to look through, the less scrutiny each one gets. That means that the resume always has to have as many of the "tickbox" criteria (principally school, grades, law review, clerkship and publication), but that in some years (it seems to me) that you might just get more lucky because of fewer positions and fewer applicants. Which leads logically to:




3. Orin suggests picking a subject area, and if at all possible, pick something obtuse to fall in love with. If you love conlaw and tax law, "go with that" - that's perfect, because tax is an unsexy subject that is none-the-less taught, and that profs are needed for. Moreover, even if you're hired to teach tax, you may end up being able to fill holes in scheduling, teaching conlaw or whatever it is that you're really interested in. (To be clear, though, the point here isn't to get a foot in the door with, say, antitrust, in the hope of later pivoting to teach conlaw - pick a subject area because you love it and you want to teach it.) This whole digression reminds me of Althouse's anecdote in Late Night Confessions (47 Vand. L. Rev. 993) that she wasn't hired to teach federal courts, but literally no one else on the faculty wanted to touch it with a barge pole.




4. Randy has seen no sign whatsoever of discrimination on the basis of political or philosophical views in the promotion and tenure process (or at least, against conservatives and libertarians: counterintuitively, he has seen it against the left). It does, however, rear its head fromtime-to-time in the entry-level process. However, worth noting is its character: it isn't so much a desire to keep convervatives off the faculty as concern about what you're going to do with the platform they give you, or even more precisely than that, the idea that being a prof gives you a certain amount of cachet ("John Doe is a law professor at Northwestern Univerisity" gives your op/ed or letter to the editor a lot more credbiility than "John Doe, some guy we got off the street"), and because there are only a finite number of profdoms, that cachet is a scarce resource. So economics come into play: if there is a conservative using up that authority, a liberal isn't.




5. If you're going to teach, apply within five years of leaving law school (or finishing your last clerkship), and display a real passion - not for being a lawprof, or even for law, but for teaching law.




6. Empirical studies are a gift for students writing articles, because with empirical data, the authority comes from the data, not the author. If you produce some empirical, verifiable data, you're likely to be cited as readily as a student as you would be if you're a tenured prof, whereas if you're going to write other kinds of scholarship, you may find people considering just how much cachet a 3l at ___ law school has to assert whatever you're asserting.




7. On co-authoring reviews with professors: Randy observes that the credit for co-authored reviews never seems to add up to 100%. Orin suggests that since favorable references from profs are very important, co-authoring is a good way to develop the kind of relationship that gets good references and lends them added weight. At a very minimum, if a Professor is willing to share a byline with a student, that gives the student a lot of added credibility.

The casual reader might think that the panel on "government promotion of moral issues," featuring Profs. Lillian BeVier Marcus Cole, Steve Lubet and Lino Graglia,5 and moderated by the very dapper and much-revered Prof. Steve Calabresi would be of particular interest to me (I have, after all, asserted in the past that there is little legislation propounded on any basis other than morality, no matter how deeply it's buried under the language of reason). And indeed, I would have been, but unfortunately, I was more interested in listening to Orin and Randy at the one part of the conference I can't blog about, and realized after having done so that I had a powerful need to eat. Having arrived late to this panel, I strained to get into it, but I have a couple of notes from remarks by BeVier and Calabresi.

BeVier observes that if any part of the Civil Rights Act might have been thought to be uncontroversial, it'd be Title II's public accommodations provisions, but at the time, it was condemned as an attempt by government to promote a moral value, and its opponents noted that you can't legislate virtue. It might be true, says BeVier, that you can't legislate morality, but you can ban immoral conduct, and doing so is so overwhelmingly effective6 that it amounts in practice to succesfully legislating morality. I guess there's something to that; after all, the purpose of law is to restrain a man's conduct, not the content of his heart, and once public conduct has been conformed to a certain standard for a generation or two, new generations start out not only pure of deed, but pure of heart. In the aggregate, at least.

Or, BeVier suggests wryly, do opponents of government-sanctioned morality ultimately have to punch the escape button when it comes to the Civil Rights Act, and claim, as the Supreme Court concluded, that it's purpose wasn't to regulate virtue at all - it regulates interstate commerce. That provoked an massive and knowing-sounding laugh in the theater.

BeVier discusses the problem of government both endorsing and condemning, represented by vice taxes - smoking being the paradigmatic example, or in some states, gambling, which government condemns, and claims to be taxing to discourage, yet which provides a revenue stream that the government depends on. This attempt to have it both ways is hard to justify, and she concludes by discussing abortion in this context: in the case of abortion, government both encourages and discourages, but here, government is not a unitary entity: the Supreme Court has sanctioned virtually limitless access to abortion while the democratic branches have sought to limit it. Must the tension be resolved by the democratic branches giving in? For those who believe abortion to be murder, that would be immoral, says BeVier.

A couple of notes on Calabresi's presentation.7 Calabresi identifies three areas of concern with government promotion of morality. (1) Efforts by government to promote morality by law tend to give prosecutors excessive power, because it will be within their discretion to prosecute or not. (2) Such laws will be disobeyed, which contributes to a decline in the credibility of the law - similar to the broken windows theory of neighborhood decline, when minor laws are not taken seriously, and are chronically ignored, the law itself begins to be taken less seriously, and more major laws get broken. I agree with this, although I think it has wider application than Calabresi would perhaps agree with - certainly, the most persistent and chronic thorn in the seriousness of the law is absurdly unrealistic speed limits which are routinely flaunted (part of my drive home is on an interstate-quality state highway, where the speed limit is a ludicrous 55mph. As I was driving down it at 65, a car doing I'd guess 70, which seems the sensible speed for such a road, crawled into my rear view, gradually made ground on me, and overtook me, disappeared off into the distance. Well and good, but it was a cop, I saw as he pulled past me!), but this same principle would seem to carry all the way to the chronic failure that represents the "war on drugs," a policy I believe that Calabresi supports (I could be wrong on that, though). And (3) individuals breaking the laws may not know that their conduct is illegal (this last point seems to reach a little).

Calabresi acknowledges that these are problems, but is concerned that decriminalizing so-called "victimless" crimes will lead to a flood of self-damaging behavior. He seems particularly fond of his example of consensual dueling. Moreover, he suggests, since the idea of law being rooted in morality is so deeply-imbedded in the American psyche, some people might think that because a behavior is tolerated, it's endorsed (cf. Wax, supra part III(c)(1)). Calabresi also wonders aloud that if we take the Clintonian view of abortion seriously ("safe legal and rare"), why wouldn't there be broad bipartisan support for government running informational campaigns about abortion and adoption, just as it does against smoking? Those campaigns have been very successful in making smoking - if not safe, and while already legal - more rare than it was before.

In question and answer, Cole suggests that he has a problem with government propaganda campaigns - up to and including Got Milk? - because when government does so, it spends money that it can only obtain by taxation, and when Cole disagrees with the message, in essence, by using a portion of the fruit of his labor to promote a message he doesn't agree with, the government has enslaved him. That seems absurd to me - as it did to all the panelists - insofar as it would apply equally to all taxation for all purposes, including those within those that all would agree are the traditional and inherent functions of government. Or at least, it's absurd as an argument against government promotion of moral issues, although it might be a good argument against taxation, and might provide a useful way of delineating the role of government if we could all agree on the level of abstraction from pure moral views required before government can act.

Lastly, the symposium turns to "the morality of First Amendment jurisprudence," starring profs. Andrew Koppelman, John McGinnis (whose office door left me starstruck this morning, see supra) and Geoff Stone, and Phylllis Schlafly, all moderated by ringmaster Orin Kerr. It becomes rapidly apparent that this panel has mostly chosen to focus on pornography in particular.

Schafly goes first, and decries the Warren Court's evisceration of laws against obscenity. Pornography is not protected by the first amendment because it isn't speech (cf. discussion infra part VI(b)) She suggests that Hollywood used to police its own conduct, but that following the Supreme Court's decision in Roth v. United States, as Charles Rembar describes in his book The End of Obscenity, pornographers specifically targeted Justice Brennan, asking him to change the way he formulated his test, a strategy that finaly paid off in Redrup v. New York, which opened the floodgates to a large number of consecutive cases striking down obscenity laws. She cites Maises v. Ohio as emblematic: a raw exercise of judicial authority, says Schlafy, the entire opinion of the court - decided per curiam, suggesting that no justice could bring themselves to put their name to it - simply declared the ruling of the court below affirmed and cited Redrup without further reasoning. This is not how courts are supposed to work; the case history is missing, as is the reasoning; the result is that the facts of the case are concealed from the U.S. reports, and so to find out what the court was actually doing, one has to search out the decision below, a much harder task.8

Koppelman goes next and does a masterful job of presenting Schafly's ideas as being of kin with anti-pornography feminists, animated by concern for the damage done to women by porn. I tend to agree, but I suspect Koppelman is damning with faint praise (it's a clever manouvre, and it works). While porn doesn't empirically exacerbate violence, violence is not the only way in which men abuse women; porn contributes to the creation of a culture in which women are overly-sexualized in a commodified and debased way (anyone who doesn't think this is true hasn't turned on MTV lately), which forms the context in which men are socialized and attitudes develop. Quoting Schlafly: "the unthinkable becomes not only thinkable, but even desirable." Quoting Rosseau: "men depend on women for their desires, but women depend on men for their desires and their needs." The problem with porn is that it corrupts the culture, in which men are then socialized into patterns that are indifferent to or actively hostile to the needs and interest of women. Rifffing on a comparison to prohibition: "porn is less like the salloon and more like the molecule alcohol." Ultimately, he agrees that porn is a problem, but disagrees that government should suppress it.

Geoff Stone is up next. He thinks the concern about porn is somewhat overblown, and that labeling it as evil seems absurd in a world so filled with actual, veritable evil. Stone wonders: if there was no doctrine of obscenity, why and how would we create one? Why do we want to suppress obscenity - because it might encourage bad behavior? Many things encourage behavior that is bad, but that we wouldn't ban (my example in the margins "after marcottegate - blogging?"). Alluding back to Koppelman's observation about the unthinkable becoming thinkable and even desirable, he concedes that in a world where pornography is so explicit and so readily available, perhaps people will be more likely to try (or to desire to try) oral sex or anal sex when they wouldn't have done so before, had the thought not been called to mind directly or indirectly by porn, but so what?

Stone suggests that maybe another approach is to observe that some forms of speech are less valuable than others - fighting words, for example, or commercial speech. But the test Stone proposes goes to what speech is; he proposes a legal fiction in which threats, for example, are speech in form but coercion in fact, and thus aren't speech at all, and fighting words are less like speech than they are like throwing punches. Likewise, porn has a physiological effect - in this legal fiction, porn is less like speech than it is like stroking someone's thigh. Speech, on the other hand, appeals to the cognitive facilities. The problem that I have with Stone's suggestion is that he confuses speech with discourse; does your average political campaign commercial appeal to one's higher reasoning or one's basic prejudices? In comments later, Lino Graglia makes a similar observation, that porn isn't speech because it isn't communicating a point of view. But who said that speech has to communicate a point of view? If that's so, aren't most questions -- other than the kind of "questions" asked by many participants today, I mean actual questions" -- how can a question be speech?

Stone concludes with a provocative suggestion. He suggests that obscenity rests on a received idea of sex as sinful, an idea that is actually rooted in the doctrine of St. Augustin, who develped the doctrine that sex was the original sin and that lust is our punishment for it, and thus that sexual desire is per se sinful as is anything inciting it.9 That being so, suggests Stone, obscenity thus rests on a sectarian view of sexual morality, and even though that view may not be adhered to by many christians today, criminalizing obscenity does indeed offend the First Amendment - but the Establishment Clause not the Free Speech clause. I look forward to seeing this highly provocative point in writing.

John McGinnis talks VERY LOUDLY andveryfastindeed. I elected to punish this moral failing by taking only sparse notes. His basic idea seems to be a federalist approach to the First Amendment - let the states establish what Scalia has referred to in the CrimPro context as a tolerable range of diversity10 (my comparison not McGinnis'), and just have the Supreme Court police the boundaries of state experimentation. He ties this to the rise of computers and their ability to facilitate empirical studies - Brandeis' laboratories of democracy theory11 was idealism at the time, but is now a practical option. He thinks the Supreme Court should withdraw from the field - but how? McGinnis doesn't say. Some kind of mixture of the independent and adequate state grounds doctrine and robust abstention by federal courts? Tied to what doctrine? Like Stone's establishment clause argument, I await seeing this in writing, although McGinnis suggests that he has an essay applying the same rationale to parallel situation; I'll update this with a citation later this week. McGinnis also thinks that this sort of federalist approach has the normative appeal of suppressing partisanship; if the states are free to act as laboratories of democracy, they will produce empirial data, and partisanship will fall out of the picture as dogma is forced aside by the expanding frontier of experience. John's an optimist. ;)

A couple of bullet points from rebuttal and questioning:

1. Schlafly emphasizes again that obscenity isn't a native part of the first amendment, it was imported into it by the Warren court. And what particularly irks her is that the court continues to be profoundly sympathetic to "bad speech" (my characterization) while being profoundly hostile to other kinds of speech: if you want to distribute "Horny Harlots 9," that's just peachy as far as the Supreme Court is concerned, yet, says Schafly, "woe betide you" if you want to say a prayer at a graduation ceremony,12 recite the pledge of allegiance,13 post the ten commandments,14 or talk politics in print in a certain period before an election.15




2. McGinnis offers support of sorts to Stone's argument that obscenity, fighting words etc. are different to rational discourse: cat scans of the brain clearly show that different kinds of communicative activity engage different parts of the brain. My problem with that point is that it doesn't resolve the concern I noted above - it's only useful if one buys that "speech" is limited (at least for first amendment purposes) to rational discourse appealing to the cognitive function, and that proposition is being offered here as little more than ipse dixit.




3. A commenter from Texas Western suggests that the British weren't trying to suppress pornography, and that the First Amendment should be construed -- or at least, our interpretation of it can be informed -- by the British transgressions that animated the framers' concerns in passing it. This sounds like Breyer's purposivism (see generally, Breyer, ACTIVE LIBERTY) used to reach a good result rather than a bad one (the malleability of Breyer's approach thus demonstrated, of course, is precisely the problem with Breyer's approach)




4. Going back to Schafly's "unthinkable becomes desirable" thesis, Koppelman suggests that pornography helps promote homosexuality to the extent that it allows people to see "the act"; some people, says Koppelman, may see such material and say "hmm! I want some of that!" This does actually stand to a certain amount of reason - it seems logical to me that people who watch pornography would be interested in importing various, ahem, techniques and practises that the see before them into their sex lives.




5. Lastly, a point from me (not expressed on the floor): Koppelman suggests that the empirical evidence suggests that <1% of men16 are susceptible to having violent tendancies exacerbated by porn. Koppelman would not ban porn, of course, but as one of the panel's two liberals, and a lawprof liberal at that, I would assume Koppelman is against the death penalty (he's beaten significant odds if he isn't). DP opponents often case their concerns in terms of innocent men going to their deaths, but my question for Koppelman would be this: what structural rate of mistaken death sentences (that is, given to innocent men) would be excessive before he would say the death penalty should be abolished? I would think that any rate in excess of even 1% would be massively troubling, and some levels beneath even <1% would do it. So if <1% of bad convictions is enough to ban the death penalty, why isn't <1% of men having violent tendancies exacerbated by porn enough to ban porn? And if porn is unlike other forms of speech in any way, surely it's that porn has no instrumental value at all to place on the other side of the scales?

Although the drive home after (or the attempt at a drive home, at any rate - I gave up after three hours and less than a hundred miles) was horrendous, this was a hugely enjoyable and thought-provoking day. I also got to meet regular SF / Althouse commenter Marghlar, which was really neat, and we had a good discussion about, well, the same stuff we go back and forth about here, I suppose. ;)

Update: a couple of egregious typos corrected. This has been a long couple of days (Orin has it worse), and I'm trying to get this together for y'all as fast as possible.

Update 2: Part IV has been updated with some notes on Randy Barnett and Orin Kerr's seminar on "dos and don'ts for aspirant law profs."

And: Let's go to the tape!

Post facto:
Federalist Society Student Symposium '08: "the people and the courts" (3/11/08)

1. 1. This is actually a fib; the fun (for me) actually opened with my arriving in Chicago a full hour before the conference was due to begin, and having to wander around trying to find someone - anyone - who could help me figure out where the parking was. And when someone did show up after I'd wandered the halls for a couple of minutes (and gotten star-struck by noticing Prof. McGinnis' office - his name's on the door), as luck would have it, she was a walking reminder that FedSoc attracts not only the smartest students, but also the best-looking and most personable. Everyone here - and let's be frank about this, I do mean everyone, the guys too - is preposterously handsome. I feel quite out of place!
2. 2. It had become apparent that Michael Moore, the last speaker was going to say things that would aggravate me (he apparently didn't disappoint), and in any event, to be frank enough to be clear that I wasn't just shirking my reporting duties, nature was calling.
3. 3. I got to very briefly say "hi" to Steve Calabresi, and chat with Orin Kerr briefly.
4. 4. This sounds preposterous at first blush, but the argument behind it, that pervasive gender hierachies corrupt or threaten many (if not most) heterosexual relationships is not one I'm unsympathetic too.
5. 5. A man who has more completely accomplished the goal of molding his presentation of himself to Justice Scalia than I will ever achieve.
6. 6. Graglia was suggesting, as I arrived, that the CRA was so extraordinarily effective at breaking the back of segregation that there may even be an argument that Brown v. Board set back desegregation by delaying the critical mass of public anger at segregation (and increasing southern resistance to the idea) from arriving at a point where Congress had to act. I think that misreads the history, but as I said, I came in at the end of the point, so I may have misunderstood him.
7. 7. How much talking are moderators supposed to do? Well, when you're the head honcho of the Federalist Society, you can pretty much do anything you like!
8. 8. I think the general consensus of the people I talked to about it was that the content wasn't bad, but she seemed to have a problem recognizing where she was - it would have been a fine speech to give to the American Conservative Union, but not so much at the federalist society (it's hard to put into words precisely why, but strident rhetoric railing about how awful "liberal activist judges" are in a room full of legal conservatives seems out of place, even though almost anyone there probably agrees with the sentiment. The peculiar thing is, and I say this at least in part to make clear that I'm not attacking Schafly, is that her contributions later, during rebuttal and question and answer - that is, when she didn't have a script to read - were cogent and sharp, so it isn't as if she can't play with this particular crowd. It's just a question of tone.
9. 9. I must add that he was challenged on this point by a commenter who described himself as a theologian, and who was visibly upset with what he regarded as a misrepresentation of St. Augustin's writing. Stone's response is that he's not willing to argue the point, and that people should read St. Augustin, whereupon they will discover that Stone is right.
10. 10. See Scalia, The Rule of Law as a Law of Rules
11. 11. See New State Ice Co. v. Leibman; Althouse, Vanguard States, Laggard States
12. 12. Lee v. Weisman.
13. 13. Newdow v. Elk Grove Unified School District; Lee, supra (Scalia, dissenting). Although the court has not yet struck down the pledge, there is a solid minority on the court who will do so given the chance.
14. 14. ACLU v. Kentucky
15. 15. Federal Election Commission v. Wisconsin Right to Life (06-969) and McCain v. Wisconsin Right to Life (06-970).
16. 16. That is, after data is normalized to account for other pathological conditions.