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Friday, August 25, 2017

The Small and Vast Difference Between Two Op-Eds

Two op-eds published in the past two days provide a wonderful contrast with each other. In neither case do I evaluate or endorse the ultimate correctness of the arguments offered. Nevertheless, all the difference in the world lies between them. 

In the first, Professor Martin Redish argues that the president cannot pardon former Sheriff Joe Arpaio. And he writes, after making his argument: "I admit that this is a novel theory. There’s no Supreme Court decision, at least that I know of, that deals specifically with the extent to which the president may employ his pardon power in this way."

In the second, in Slate (which I admittedly avoid reading, but a friend pointed out the piece), my friends Nelson Tebbe and Micah Schwartzman assert, as the headline puts it, that "Charlottesville's Monuments Are Unconstitutional." The key paragraph I want to point to is this one:

So far, the lawsuit over Charlottesville’s monuments has focused on arcane issues of state law. But there are larger constitutional principles at stake—most importantly, that the government is prohibited from conveying messages that denigrate or demean racial or religious minorities. While private citizens may engage in hate speech under existing law, the government may not demean racial or religious minorities without running afoul of the guarantee of equal protection contained in the 14th Amendment. Unlike limitations on hate speech, which remain controversial, this rule against racialized government speech should enjoy widespread support.  

I'm not sure I agree with this argument (or with Redish's), although I'm quite sure that for present purposes I don't care whether I agree with it or not. What I care about is two words: "principles" and "rule." Normally, when one argues about missing nuances or counter-arguments in an op-ed, the author can be relied upon to make the "I only had 800 words" defense. I have used it myself. It's one reason I prefer blogging: so I can be excessively prolix but get in all the qualifications I think necessary. In this case, though, a small edit would rescue the Slate op-ed from what I am inclined to think of as a fatal flaw without changing the word count. All one needs to do is change "principles" and "rule" to "arguments" and "argument," respectively.

This is a point on which one might receive pushback--from cynics, from idealists, from those touched with or addicted to a sense of urgency, from those who think little differences in wording matter little and can be understood to mean what they do not actually say, and so on. I am content to hear them. But I think the difference in wording makes an enormous, essential difference: to public and political discourse, to law and legal scholarship, to journalism, to trust, candor, and responsibility. For the same reason, I also think Professor Redish's wonderfully old-fashioned approach is, in these times, especially praiseworthy.     

Posted by Paul Horwitz on August 25, 2017 at 10:45 AM | Permalink


Regardless of Race/Ancestry or Religion, if a monument serves to commemorate a person or event in order to justify an act that is unconstitutional, that monument, no doubt, would be serving to undermine our Constitution. One cannot be serving to secure and protect our Constitution, while undermining that which our Constitution serves to protect and secure, simultaneously.

If a monument serves in memory of a person or event in History as a reminder of events that occurred during "The Darkest Hour", of this Nation's History, then let those monuments stand as a reminder of the fact that because we denied our founding Judeo-Christian principles, we have suffered greatly individually and as a Nation.

Posted by: N.D. | Aug 28, 2017 7:46:40 PM

I tend to agree with you. But nonetheless I wonder which oped is more reflective of the language used by the two most recent examples we have of extraordinary success in planting memes that grew into SCOTUS decisions -- personal second amendment and marriage equality advocates.

Posted by: brad | Aug 25, 2017 5:41:55 PM

Like Anon, I think their argument is pretty shaky, not so much in principle as because of the obviously ambiguous meaning of the statues in question. But to play along, since I assume they would at least concede that the state could constitutionally put the statues in a state-owned museum, as then the government wouldn't be demeaning racial or religious minorities so much as memorializing and lamenting the historic fact that once a Jim Crow-era local government erected this statute for the purpose (I'll assume) of intimidating racial minorities, what else might suffice to avoid sending a constitutionally proscribed message? What if, next to the statute, a city puts a disclaimer that says something to the effect of, "rather than erase our local history of state-sanctioned racism (or move it somewhere where it won't be seen), we have chosen to keep this statue around to remind ourselves of our painful past and specifically remind ourselves of the fact that we were once led by people who were racist enough to erect this statue; in addition, we have kept it up in part to memorialize the soldiers, many of whom resided in this town and are our ancestors, conscripted into the army that was led by this general, even though they fought or were forced to fight for a cause that we now recognize as evil"? Does that, as the popular phraseology goes these days, "cleanse the taint" of the statue, at least as far as this legal theory goes? I would think so. And if that works, what if a city council merely votes to keep a statue up on these grounds, which it publicly expresses at its meetings or in a resolution? As I recall the cases that seem relevant to this kind of argument - Pinette comes to mind - the constructed reasonable observer of some state-built display is charged with a great deal of knowledge about the circumstances under which the state decided to display it.

Anyway, I don't want to distract from your point, which I think is right; at a minimum one shouldn't propound such contestable legal theories to a mass audience without advising it that they're contestable. (I think it much more appropriate to make overconfident legal claims to a specialized audience that can critically evaluate their overconfidence.) The whole point of failing to do so, it seems to me, whether or not it's the conscious intent of failing to do so, is to mislead actors who know no better, and uninformed people who might push those actors to act, into thinking that the law is definitely as the author says it is and acting on that basis. So of course few op-eds (or even public-facing legal blog posts) these days are appropriately hedged, as they would then lose their intended force. Perhaps such disingenuousness is justifiable on consequentialist grounds, but I guess I'm pretty anti-consequentialist when it comes to legal argument, in addition to being extremely skeptical that these sorts of writings have any practical political impact that could justify disingenuous overconfidence, or influence on the courts that could justify it, as their transparent underreasoning makes them poor vehicles for that kind of influence. But I could be too much of a romantic about the courts in this regard.

Posted by: Asher Steinberg | Aug 25, 2017 3:48:25 PM

Wouldn't the arguments in the Slate article mean that the federal government would have top tear down the FDR memorial? President Roosevelt signed an executive order mandating the "internment" of over 100,000 Japanese-Americans, just because they were of Japanese ancestry. This is probably the worst act of racism since the Civil War. He also refused to meet with Jesse Owens and other black athletes after the 1936 Olympics.

Posted by: Anon | Aug 25, 2017 2:50:14 PM

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