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Friday, December 14, 2012

On politicizing and making public policy

One of the many phrases that should be retired from all serious public discourse is "this is not the time to politicize a tragedy" (and similar ways of framing the same idea). Another way of saying "politicizing" a tragedy is "making public policy in light of" a tragedy, policy that, we hope, will prevent similar bad events from recurring. All law is made in a factual context or in response to some set of facts or circumstances, especially a unique, tragic event. That is inherent in the nature of law. So please stop suggesting that tragedies should not be a basis for public policy--they inevitably are.

Of course, making prospective legal rules in response to a special factual context, especially a tragic one, may not be the best way to do make law, as Fred Schauer argued. So rushing to enact new gun-control laws is not necessarily the answer--nor is it likely to produce wise policy that will succeed in preventing future tragedies. But reckless pejoratives such as "politicize" should not be used to short-circuit real policy discussion or to run from having the discussion at all.

Posted by Howard Wasserman on December 14, 2012 at 10:28 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I think everyone agrees that it's in bad taste to try to score cheap political points from a tragedy and yet perfectly fair to use recent events to inspire future policy solutions. The problem is that It's hard to know if the warning about "politicizing" a tragedy is a warning about the former or the latter: When passions run high, one person's profound policy conclusion is another person's tasteless political jab.

Posted by: Orin Kerr | Dec 15, 2012 1:53:29 AM

Orin: You said it exactly right. Which is why, like "judicial activism," the phrase is utterly meaningless and should be retired.

Posted by: Howard Wasserman | Dec 15, 2012 8:35:45 AM

I, for one, don't "agree[] that it's in bad taste to try to score cheap political points from a tragedy," because - like the phrase "politicize a tragedy" - the phrase "cheap political points" is much more pejoratively-stated conclusion than substance. Practically substance-free.

I would agree that people should not make bad policy, when such policy is based on inflamed emotions rather than on better reasons. But that's practically a tautology.

All in all, I think that anybody who has spent any time within the last 24 hours criticizing gun-control advocates - and Orin, your group blog has a lot of that - almost certainly has deep problems.

Posted by: Sam | Dec 15, 2012 2:12:35 PM

Howard, this is a minor quibble, but I don't think phrases that are subject to different uses are "meaningless." In the case of judicial activism, for example, I think there are very important and meaningful concepts that the phrase can express. See, e.g., here: http://www.volokh.com/2012/04/09/the-different-meanings-of-judicial-activism-and-why-they-matter-for-the-individual-mandate-case/

The fact that some people use the phrase in unhelpful ways doesn't mean that we should retire it, as we'll just end up looking for new phrases to make the same point -- which will in turn be misused, etc.

Posted by: Orin Kerr | Dec 15, 2012 6:02:13 PM

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