So I Habermased

Those of you following the fascinating drama about whether I was going to attend the Habermas colloquium at NYU  may wish to know that I went yesterday (for two and half of the three hours).  It was illuminating in many ways -- both about the paper (which Micah S. and I discuss below) and about the kind of person Habermas is.

First of all, "Ronnie" was on.  There are a few things Dworkin has written that have truly impressed me; and then there is a lot that isn't all that great.  Watching Dworkin summarize and analyze a very difficult paper (he presented Habermas's paper) was extraordinary.  He developed a number of very interesting cases that served as the bases for the long discussion that followed. 

In particular, he pressed Habermas on the very interesting issue of direct democracy: What can religious people do and how may they vote when they are final decision-makers?  When the religious are not mediated through officials with special secular constraints, can the liberal state tell them the sorts of reasons they may not offer in a campaign or vote upon?

It was interesting to see Habermas back down so easily on this and other matters; indeed, throughout the presentation you simply wouldn't have known just how famous (and deservedly so) he is.  His modesty was extremely attractive -- and was a model for all of us.  He didn't assume he had an answer for everything -- and his dialogue mirrored the paper's emphasis on learning from one another.  One area where he was especially coy was when he was pressed for institutional design ideas or practical ways to police the sort of reason-giving he thinks critical to the public political sphere.  For a colloquium in a law school, he was notably short on practical ideas.  This didn't seem to matter much to him; it seemed clear that he just thinks there is a division of labor in the academy and it isn't his role to specify how to bring his ideas into a workable set of legal rules.  It was interesting especially for me -- since the tone of my first book is very aggressive toward Habermas's talking big about deliberative democracy without making any effort to offer real, practical ways to imagine one. 

On the substance, though, I did wonder why Habermas backed down so quickly to Dworkin's referendum case, declaring simply that his vision couldn't account for the case of direct democracy.  I think it is one of the more interesting questions in the law of direct democracy:  Can courts strike direct legislation when the "reasons" offered are not secular in character?  Most courts assume that we could never isolate the reasons voters have when they go to the polls.  Indeed, that might be right generally.  But, most recently, when fourteen states passed gay marriage bans, is it really that hard to say that the vast majority of voters probably didn't vote against gay marriage for secular reasons?  Could we not design some way of finding out?  And if we could, would it be better to find some way to strike down such laws?  This may be a Pandora's Box.  But it strikes me that Habermas gave in way too easily on the matter.