Wednesday, June 29, 2022

The Neoliberal Takeover of Universities and the Wokeness Debate

Note to readers: Last Thursday (June 23), I published a new Verdict column, "Social Security’s Good News is Good News," in which I took my yearly look at the health of the world's most successful social program.  After demonstrating that the latest annual forecasts from the Social Security Trustees are even better news than usual -- and that the political hit job on Social Security continues to be based on neither evidence nor logic -- I also gamely offered the optimistic argument that Social Security (and even Medicare) might survive after the Republicans finish turning the United States into a one-party autocracy.

I have no further thoughts on that topic right now.  When the Dobbs decision became a reality, I shared Professor Dorf's immediate sentiments ("Ugh") and called it a (very bad) week without writing my usual second Dorf on Law column.  Today, I will continue to distract myself from our Court-ordered dystopia (and reports about the plate-throwing former occupant of the White House) by writing the column that I had been planning to write last Friday, which might be a balm for those readers who, like me, need to think about something else.

by Neil H. Buchanan
Some non-conservatives have over the last few years complained, with varying degrees of bemusement and bitterness, about "cancel culture" and in particular its impact on American universities.  In so doing, they end up aligning uncomfortably with the reactionary right that is now ascendant in this country, arguing that so-called woke-ism -- "cancel culture" and "woke" being the right's re-branding of the old political correctness (PC) trope -- truly is a problem on our campuses (and elsewhere).
It is always possible, of course, that people who disagree with each other (even fiercely) on various topics can find themselves in agreement on a specific subject.  And when that happens, there is no reason to say, "Well, now I have to change my mind, because I disagree with those people about everything else!"  Political positions should be based on the merits rather than team jerseys.  I thus hereby emphasize that my objection to the consensus between the right and the center-left regarding PC/cancel culture/wokeness is very much on the merits.
[Aside: I have been trying for some time to come up with a shorthand way to refer to political correctness, cancel culture, and "woke," all of which mean the same thing -- or, more accurately, all of which lack actual meaning in exactly the same way, in service of the effort to silence criticism of the powerful.  Ignoring the chronological order in which they entered the popular lexicon, the acronym is WPCCC, which can be pronounced "whoopsies."  I will go with that for the time being.]

Last week, I published columns on Verdict and here on Dorf on Law arguing on the merits that the concerns expressed about Whoopsies by conservatives, joined by many center-left and even some left liberals, do not hold water.  I reiterated my mockery of a hand-wringing piece by the editors of The New York Times from March of this year, which deserves every bit of ridicule it has received.  Even so, it might be possible for reasonable people to reach the same conclusion that the editors of The Times reached without agreeing with their baseless reasoning (just as one can, as noted above, agree with hard-core Republicans on a particular issue almost by accident).
What is the strongest case that can be made by a non-culture warrior who perceives a problem with "censoriousness" or "illiberalism" on the left?  In other words, what is the best argument that people who do not dismiss Whoopsies might offer?

Tuesday, June 28, 2022

"The State Didn't Get You Pregnant"

 by Sherry F. Colb

I have written quite a few posts about Dobbs v. Jackson Women's Health Organization in these pages. With the luxury of time and space, I was able to elaborate both the foundation of my view that women have a strong interest in expelling an unwanted zygote/embryo/fetus from their bodies and the reason why a zygote should not have the status of a being with rights.

Last week, I received an invitation to write an op-ed for Fox News about the abortion decision. I knew that I could not take on the entire issue in 600-800 words, so I decided to focus on Samuel Alito's (SA's) complete failure to consider the costs in pain and risk and hardship that pregnancy--and especially unwanted pregnancy--entails. I put the status of the zygote/embryo/fetus to one side, in other words, and concentrated on the pregnant woman's side of the balance.

No one will be surprised to learn that I received some hate mail highlighting my stupidity, my dishonesty, and the likelihood that I had had "random sex" in order to become pregnant. Despite all of the infantile messages (which I stopped reading early on), I picked up on a thread of logic (well-camouflaged, to be sure) that I think is worth discussing (though not on Fox News).

Monday, June 27, 2022

The Week from Hell

 By Eric Segall

Last week the Supreme Court issued three rulings that dramatically changed constitutional law in this country for the worse. The three liberals dissented in all three cases. The ultra-conservative Supreme Court majority lowered the wall of separation between church and state, limited the ability of states to pass reasonable gun laws, and reversed Roe v. Wade and returned the issue of abortion to the states (or potentially Congress). My very sad observations are below.

Friday, June 24, 2022

Gunning for Involuntary Pregnancy

 by Sherry F. Colb

This week, the Supreme Court held that New York State's limits on concealed carry are unconstitutional under the Second and Fourteenth Amendments. Anyone who is being honest will acknowledge that those who framed and ratified the Second and Fourteenth Amendments had no expectation that the constitutional protection would extend without limits to those carrying concealed firearms on their person. That is perhaps why a group of people who are actually knowledgeable and competent on the history submitted an amicus brief explaining that the historical evidence does not do what the six ideologues on the Court want it to do. What bothered Justice Clarence Thomas (CT) about the New York law that he and his fellow power-judges invalidated was the requirement that a person who seeks a license to carry a concealed weapon in public demonstrate that they have an elevated need for a gun they might use in self-defense. Such a requirement, according to CT, demotes the Second Amendment right to keep and bear arms to second-class status.

Ugh -- That is All For Now

 by Michael C. Dorf

The leaked opinion in Dobbs is now the law of the land. I haven't read enough of it yet to know whether there are differences from what we saw last month to the final version, but it hardly matters. My co-bloggers and I will have more to say about this travesty in the days, weeks, and months ahead, but for now, ugh. Meanwhile, you can read my Verdict column on yesterday's gun ruling here. Also ugh.

Thursday, June 23, 2022

How to Qualify for Protection against Violence

 by Sherry F. Colb

When we talk about rights--who has them and who does not--we often refer to a broad range of entitlements, some of which are quite basic and others relatively limited in their application. In this post, I want to talk about the most basic of rights that anyone who could be considered "someone" ought to have, regardless of their intelligence, their long-term memory, their status as a loner versus a member of a community, and other characteristics that one might require before bestowing some rights. I refer here to the right to protection against the violence of others, with violence referring to assault and battery, torture, unnecessary incarceration, and murder. Even if you are not terribly bright, have few or no friends, never earn any taxable income, and delight in your illiteracy, you nonetheless have a right not to be subjected to violence of the sort enumerated in the last sentence.

Indeed, if anyone suggested that it is acceptable to assault you, to torture you, to kidnap you and hold you captive, or to murder you because you are less intelligent or capable than your rights-bearing neighbors, most of us would condemn the person making the suggestion as a bigot lacking empathy and a conscience. If anything, most moral individuals would regard cruelty toward a less intelligent person as especially heinous and disgraceful. It is not simply that less intelligent people come in under the wire and receive protections that the rest of us have; it is that we understand intelligence and other sorts of capacities as morally irrelevant to a right against violence. People of lesser intellect are at least as entitled to a right against violence as are geniuses. While we might allocate educational resources in a fashion that takes account of intelligence (or multiple intelligences), the basic right to be free from violence properly has nothing to do with I.Q. or any other measure of intelligence or skill.

Wednesday, June 22, 2022

(When) Will SCOTUS Hold that the Establishment Clause Violates the Free Exercise Clause?

 by Michael C. Dorf

Because of its low population density, Maine cannot afford to provide local public schools for all children in the state. Instead, parents of students in various rural districts throughout the state can receive tuition assistance (what I'll call vouchers) to pay for (some, most, or all of, depending on tuition) their children's education at an accredited private school, so long as the education the school provides is "nonsectarian," i.e., not religious. Until twenty years ago--when the Supreme Court decided Zelman v. Simmons-Harris--it would have been very plausible to argue that Maine's exclusion of religious schools from its voucher program was constitutionally required by the First Amendment's Establishment Clause. Zelman rejected that view and upheld what the Court deemed a neutrally structured system of vouchers that were redeemable at religious along with secular schools. Yesterday's 6-3 ruling in Carson v. Makin held that the state's failure to fund religious schools through its vouchers program is itself an unconstitutional violation of the parents' right to free exercise.

Thus, in the space of two decades, education vouchers redeemable at private religious schools went from (1) arguably unconstitutional as a violation of a core no-aid-to-religion principle to (2) constitutionally permissible if vouchers are also redeemable at secular private schools to (3) constitutionally mandated if vouchers are also redeemable at secular private schools. Or as Justice Sotomayor put the point in her dissent yesterday, "the Court leads us to a place where separation of church and state becomes a constitutional violation."

Tuesday, June 21, 2022

Why Do So Many Liberals Buy Into the Cancel-Culture Hype?

by Neil H. Buchanan 
In a growing but unplanned series of columns, I have been engaging in a post mortem of sorts on the American experiment, which is clearly in its final death throes.  One particularly interesting question is the amount of blame that establishment Democrats bear for the ongoing tragedy.  Although one might argue that there was never truly any way to prevent the Republicans from using the deeply antidemocratic flaws in the Constitution to create their one-party autocracy, I suspect otherwise.  In any event, there have certainly been plenty of times in which the nominally liberal party's leaders did nothing while the system was being destroyed under their noses.

In a new Verdict column today, I offer something of a mash-up of two very different examples of the bad instincts of many liberals and Democrats.  Specifically, I point out that the center-left's blithe agreement with the Republicans' framing of the political correctness/cancel culture/wokeness "problem" is surprisingly similar to the center-left's agreement with the Republicans' framing of criminal justice issues.

Despite the conceptual similarity, I do go out of my way to emphasize that the immediate consequences are much worse in the criminal justice arena.  I discussed that problem in a Dorf on Law column earlier this month, arguing that the label "limousine liberal" should not be applied to people merely because they have money but only when their commitment to liberal causes flies out the window the moment that they feel any discomfort in their lives.  Hence, today's Verdict column appears under the headline: "The Complicity of the ‘Comfortable Liberals’ in the Decline of American Constitutional Democracy."
I point out, moreover, that it is not merely that these nominal liberals lose perspective when they feel personally threatened.  The more surprising -- and morally indefensible -- problem is that they immediately lapse into Nixonian law-and-order reaction, even though the evidence shows that such policies always make matters worse.  So the poor, the weak, and the reviled end up being victimized yet again because some liberals stop thinking and let their lizard brains take over.

But what about the panic over this nonexistent thing that is currently being labeled cancel culture?  As I noted, there is nothing immediately at stake in that debate that in any way resembles the awful consequences for the victims of beat-their-heads-and-lock-'em-up carceralism.  In some ways, however, the intensity of the discussion around this fake thing called cancel culture is more intense.  And even if one were to believe the supposed liberals who are panicking, their own descriptions of the horribleness at issue are so vague and low-stakes that they are almost comical.  Why the disproportionate response?