« "Our Boggling Constitution" wins! Congrats to Paul! | Main | More on Framing the Con Law Course Around the ACA Litigation »

Monday, December 19, 2011

Would Someone Please Tell Me What the Hell Newt Gingrich is Talking About?

Much of the news reaction to Newt Gingrich's appearance on Face the Nation yesterday focused on his statement that when substantial numbers of the members of Congress disagree with a federal judge's ruling, they can and should subpoena that judge to appear before Congress to explain the ruling.  (Here's a search result.)  I would like to focus on something else: what he has to say, precisely, about his disagreement with federal court rulings involving church-state issues.  He begins by discussing:

...Judge Biery's ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there's no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What's the recourse? Well, one recourse is impeachment.

I have not found the relevant opinion on Westlaw, and welcome assistance.  I would note that the Fifth Circuit apparently overruled the district court's order.  The case is discussed further in a white paper by Gingrich which can be found here.  Gingrich goes on to say:

The lawyer class defines America. We've had rulings that outlawed school prayer, we've had ruling that outlawed the cross, we've had rulings the outlawed the 10 Commandments, we've had a steady secular drive to radicalize this country away from all of its core beliefs. I mean what got me into this was the 9th Circuit saying that one nation under God is unconstitutional. We live in a country where judge Biery can literally say I will put you in jail for saying the word benediction. There's something profoundly wrong with the judicial system that has moved to that kind of extreme behavior. . . . And I'm just suggesting to you...I got into this originally because of two things -- The steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president's commander in chief powers, which is enormously dangerous.

Not having read either the district court ruling or the Fifth Circuit opinions or orders, I can't say too much about the merits of this case--although what the Gingrich campaign describes as the appropriate first-order response to Biery's ruling, to impeach and remove him from judicial office, seems a tad steep to me.  If Gingrich's description is accurate and doesn't omit important details, then I certainly would agree that such an order, if aimed at students, would be highly improper unless the graduation speaker policy was designed to privilege rather than allow religious speech.  (See here and here.  What orders may be aimed at school officials, and under what circumstances, is a different matter, as I also argue in those papers.)

But that's not my problem.  My problem is twofold.  First, rarely have I seen such a confusing mixture of words, phrases, and ideas about a complicated subject, each of them with different meanings and implications, jumbled together more thoroughly and incomprehensibly.  What, exactly, does "[t]he steady encroachment of secularism through the courts to redefine America as a non-religious country" mean?  Not what does it sort of mean, or what do we think it kind of probably means, but what exactly?  People who take these issues seriously--not just "academics," Heaven forfend, but philosophers, theologians, citizens, clergy, and many others--have grappled for years with what the words "secular," "secularism," and "non-religious" mean; they can't agree on much, but they can certainly agree that both in theory and practice they're not all synonymous.  There are perfectly respectable arguments that America is, in official terms, a "secular" country with a secular Constitution, including arguments by many who believe it that the Constitution may be secular but that the United States is neither a secularist country nor a non-religious one.  And is it an accurate description of what has, in fact, been happening in the courts in the last several decades, which have seen many more victories for equal access for religious speech in public places than defeats?  In short, try as I might, I genuinely can't understand exactly what Gingrich is saying, aside from seeing a whole host of buzzwords vomited forth all at once.  

The second thing that bothers me is Gingrich's statement that "I got into this originally because of two things -- The steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president's commander in chief powers, which is enormously dangerous."  Really?  Note that the transcript of the announcement of Gingrich's candidacy says nothing about either issue at all.  Go figure: it talks all about the economy, with a little mention here and there of national security and federalism.  Nothing about the courts, religion, or even the powers of the presidency.  

Does Gingrich mean what he says?  Does he care whether he means what he says?  I find it hard not to doubt it.  And that, one will recall, is the now-standard philosophical definition of bullshit: not a statement that is wrong, but one as to which the speaker doesn't really care whether it's right or wrong.*  Now, I don't want to have undue expectations of a presidential candidate, and Gingrich would not be our first bullshitter as candidate (or president), on either side of the aisle.  But he does strike me as a sterling example of a bullshitter.  And for one who cares a good deal about law and religion (and much less about presidential politics), the whole thing is both bothersome and confusing: not just because it's clearly not why he got into the race (like most candidates, he entered the race because he wants to be President; is there some reason we're not allowed to say so anymore?), but because even if it were, he demonstrates no actual understanding of the complicated issues he's addressing.  Perhaps someone can give me a good-faith explanation of what Gingrich's actual views on church-state law are, and I would wecome it; but I doubt anyone can if he himself cannot, and I don't think he can.  

* I should add that although every reasonably educated person, including myself, has long been familiar with Harry Frankfurt's work on bullshit, it was mentioned on the legal blogosphere quite recently, by Paul Campos.  I disagree quite strongly with the way he dealt with that concept.  I think he used it as a weapon, a tool pointed only outward toward his real or perceived adversaries.  I think the only way to explore the idea of bullshit with any integrity, at least as a scholar rather than a social activisit (and probably even then), is to treat it, at best, as a two-sided weapon that cuts the person who wields it just as much as it does the people he wields it against.  To talk about bullshit without examining one's own propensity for bullshit is, in my view, to fail in scholarly integrity, to wholly corrupt the idea, and even to exemplify it.  But although I wanted to talk about Campos's use of the idea (and his use of a great recent bok by William Ian Miller) at length, I ultimately decided I had neither the time nor the energy to do so properly.  I added this footnote both to give him his due for recently using the idea and reminding me of it, and to note my serious reservations concerning his use of the concept.      

Posted by Paul Horwitz on December 19, 2011 at 07:39 AM in Paul Horwitz | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Would Someone Please Tell Me What the Hell Newt Gingrich is Talking About?:


Here's the trial court's TRO:


I couldn't find the Fifth Circuit's order, but the newspaper reports from the local papers suggest that the reason is the circuit panel didn't see any imminent threat of harm.

It seems like the judge was trying to maintain a line between allowing expressions of personal belief and officially inveighing others to join in those beliefs. Seems like standard stuff to me, but I don't have the historical perspective of a great thinker like Speaker Gingrich.

Posted by: David Levine | Dec 19, 2011 8:20:44 PM

Paul Campos annoys a lot of people at his LGM blog and various people feel he dragged it down. On at least a couple things, even his fellow blogger lost patience. He also has a tendency to be petty.

I welcome those here and elsewhere, including some I disagree with on various matters, who avoids that sort of thing.

Posted by: Joe | Dec 19, 2011 2:48:36 PM

I think that is the best way to proceed. It is not all bad. He has helped to bring important issues to the forefront. But,there are problems. No one is perfect.

Posted by: CHS | Dec 19, 2011 11:14:22 AM

Thank you for your response. Again, I try to maintain a position in which I criticize what I think needs to be criticized without engaging in sniping or rejecting the whole enterprise out of hand. I don't know that I succeed at that, but I do try!

Posted by: Paul Horwitz | Dec 19, 2011 10:52:47 AM

Thanks for responding. I hope you are recovering nicely.

I agree with much of what you have said. I've followed the blog since its inception, and he really does not respond well(or at all in most cases) to serious questions about his own place within the academy.When those questions are raised, he falls back on the argument that he is just a part of a big structure, and that the focus on individuals misses the mark. That actually makes sense. But then he lambastes other professors, as if they are not also individuals within a system. Very strange. The commenters let him get away with it because he is otherwise saying things they want to hear. In fact, they are all over anyone who dissents, even mildly. And, of course, every dissenter is said to be Brian Leiter. I can't figure if they mean that he is actually writing in, or whether he has become a symbol.

He also tends to grow petulant at being contradicted. Observing the interplay between his posts, and many of the comments over these months, has been like watching the development of a mini-version of a cult of personality. So, he really cannot go too far off into the kind of thing you are suggesting here without discomfiting many of the people who follow the blog.

Posted by: CHS | Dec 19, 2011 10:49:59 AM

Andy, very fair question! I usually try to put the most charitable spin on ambiguous statements by others, even if they're running for office, and I think yours is in fact the most charitable reading, and a perfectly plausible one. I suppose I still think it's probably "bullshit," not in the sense that I disagree with him but in the sense that I'm not sure whether he cares why those examples are the reasons why he started exploring the issue of restraining judges or not; but it certainly does away with a lot more inconsistency than if one assumes he's talking about running for president. I stand modified.

Posted by: Paul Horwitz | Dec 19, 2011 10:48:47 AM

I can't find the transcript, but does he mean "got into this" as in "I got into discussing this subject, or interested in this subject" or as in "got into this presidential race" because of the secularism, etc?

Posted by: AndyK | Dec 19, 2011 10:27:54 AM

CHS, thanks. I should say that I'm recovering from surgery (as I've said too often here), and so I thought I should conserve my energy and choose my battles. I anticipated a lot of comments that I might not have time to answer, and so ended up not writing a post. I still won't have time to respond to all comments, and I apologize for that; it's a good-faith thing, not an effort to ignore objectors. But let me give a thumbnail sketch of why I objected to that post.

Certainly many commenters loved that post, and I get that; if you haven't encountered Frankfurt's concept of "bullshit" before it can be fun and enlightening. (My impression is that some commenters had and many hadn't.) But it seems to me that "bullshit," understood properly, is not merely some tool or weapon to be used for purposes of social criticism, social reform, or anything else. It's like a sword without a hilt; it wounds the person wielding it just as much as it does the people against whom it is aimed. It reminds us not just that others may be engaging in bullshit, but that we may be as well. Thus, used properly as a goad to honesty and integrity, it generally requires us to engage in self-criticism and self-revelation, not just to use it against others. My concern was that the author of that blog didn't really do that. He used it to go after others, but didn't really ask (at least not out loud) when, whether, and how much it applied to his own work. In some posts over the last week, he has brushed off questions about his own work as a scholar and teacher; he's brushed off some criticism of some of the assumptions and arguments he's made; he's even gone so far as to criticize professors for commenting anonymously on his blog, which struck me as particularly rich and a strong potential example of "bullshitting." In my view, all those things failed to use the concept of bullshit with real integrity and self-examination.

I could understand the argument (and he has said something like this) that too much of this retards the project of social reform and is a distraction from broader structural issues. But: 1) I view the author as a scholar as well as a social reformer, and I think as a scholar at least, if he's going to employ the idea of bullshit, scholarly integrity demands that he apply it to himself as well as others. 2) I think of scholars, even those engaged in social reform, as scholars first and social reformers second. 3) Even for social reformers, I think ultimately the argument fails. I think social reformers with real integrity are required to examine themselves under the same microscope, and subject to the same stringent (or very, very loose) assumptions and standards that one applies to those one criticizes. 4) Finally, as I've said, I just think the idea of bullshit is not a mere weapon or tool; at its best it is a goad to one's own integrity and not just a way of thinking about the flaws of others. That in particular was what upset me about that post, and about some of the subsequent posts in the past week. Again, I understand that many loved that post and view its author as a hero or intellectual giant (although, again, many of us have already encountered the "bullshit" concept, and seen better uses of it). Fine with me, I suppose. But some of the commenters on his blog occasionally ask questions of him that I think are perfectly fair, and shouldn't just be viewed as trying to undermine him, as plans from the legal academy and so on. Their questions deserve to be taken seriously and not just brushed off, especially if the author is a scholar and not just a social reformer. I didn't think he met the proper standard for the use of the "bullshit" concept, in that post or in several others over the past week. But I understand that others will disagree, and I apologize for the likelihood that I will not be able to give everyone who writes in the time and attention they deserve. Thanks again for asking the question.

Posted by: Paul Horwitz | Dec 19, 2011 9:56:53 AM

I think I may have put my comment under the wrong Horwitz post.
I was referring to the one that referenced the use of the essay On Bullshit.

Campos's readers went wild over that particular post. It would be interesting to hear more of your thoughts on the question.

Posted by: CHS | Dec 19, 2011 8:49:24 AM

Post a comment