When Good People Hold Abhorrent Views

First this happened:

Then this:

Duplass might have made an error in saying that Ben Shapiro is a good person for left-leaning folks to follow. He should probably have started with some less provocative commentators, preferably ones who haven’t built a career on triggering snowflakes and drinking leftist tears. That said, Ben Shapiro has a lot to say that’s worth listening to. He also says a lot of stuff that’s wrong, even abhorrent, but that doesn’t mean he’s not worth engaging.

The attacks on Duplass following his endorsement of Shapiro were based mostly on overblown claims that Shapiro is unashamedly hateful. Shapiro is not hateful. He is a provocateur, which is generally not a particularly helpful thing to be (at least insofar as you’re interested in “reaching across the aisle”). He has also said extremely insensitive things, which he (to my knowledge) has not apologized for. These (and others) are valid reasons to criticize Shapiro as a pundit. But when left-leaning people flip out at the suggestion that Shapiro might be a decent person who is worth listening to on at least some points, they reinforce the increasingly popular perception that the left writ large cannot abide any departures from leftist orthodoxy whatsoever. It is this perception that fuels Shapiro’s career as a pundit.

Much more useful is the approach of Eric Weinstein, below:

I’m not sure how willing Shapiro actually is to “cross the aisle.” Perhaps there are some clips out there of him entertaining the possibility that socialized medicine doesn’t entail enslaving doctors. Or maybe he, at some point, expressed openness to the possibility that black people are more likely than white people to be mistreated by the police. I don’t know. But Weinstein actually knows Shapiro, so there’s probably at least something to his claim in this tweet.

What I appreciate most about Weinstein’s tweets is that they show how you can criticize someone without denouncing him. There is an important difference between criticism and denunciation. Criticism is directed at a person’s ideas, arguments, behavior, etc., while denunciation is directed at the person himself. There just aren’t many situations in which denunciation serves the common good. People denounce primarily because it helps them to demonstrate their ideological steadfastness and moral purity to sympathetic onlookers, not because it actually advances their ideology by persuading the undecided. Whereas criticism can encourage a person to refine his ideas or change his behavior, denunciation encourages people to double down on whatever it is they got denounced for in the first place.

An example of this going the other way: advocates for abortion rights hold beliefs about the unborn that I find positively repulsive. I believe that there are compelling reasons to regard unborn persons as persons and to respect their right to live, and that a refusal to acknowledge the personhood of the unborn for the sake of convenience is just as morally evil as denying the personhood of any other class of persons for the sake of convenience. But denouncing people who are in serious error about the evil of abortion does nothing except demonstrate the purity of my commitment to the pro-life cause. If I actually want to persuade people that abortion is evil, I need to engage them, not denounce them.

The fact is that decent people believe and do abhorrent things. This is the norm, and it always has been. If you want to get rid of abhorrent beliefs and prevent people from committing abhorrent acts, then you can’t settle for denunciation. You have to do what Weinstein is doing and make a good-faith effort to persuade people that their ideas and actions are wrong. Of course, some people know perfectly well that what they’re doing is wrong. Right knowledge does not lead to right action. But even in such cases, a virtuous friend is more likely to correct that person’s behavior than mass denunciation from strangers on Twitter.

Sometimes I like hearing Ben Shapiro’s takes on current events. He’s smart, and he can articulate conservative ideas pretty well. But the “own the libs” persona he has cultivated, plus his bad takes and insensitivity on issues like race and gender dysphoria, makes him really hard to listen to, at times. If Weinstein’s criticism is effective in improving some of Shapiro’s ideas (and making him less of a flamethrower), then we all win.

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Ownage and that RBG Trailer

“[Insert activity here] to own the libs” is one of my favorite internet memes, mostly because it’s just so true to the times. People disregard their own interests, their own beliefs, and basic facts as long as doing so allows them to triumph over people whom they consider to be enemies, whether that’s liberals, conservatives, the swamp, etc.

This type of behavior is especially common on Twitter, where character limits make any kind of deep discussion more difficult. People generally aren’t looking to say something interesting and insightful; they usually just want to “dunk on” people, which is another way of saying to “own” them. However, the phenomenon is not limited to Twitter. Sometimes it makes it into movies (or at least, movie trailers).

Here’s an illustration of attempted ownage and its costs to society (relevant clip begins at 2:14 and ends at 2:24):

In this clip, we have RBG “own”ing a judge by saying that the word “freedom” doesn’t appear in the Constitution. Of course, this simply isn’t true (see the First Amendment, which prohibits Congress from “abridging the freedom of speech”), and people have been criticizing the trailer for the line:

Basically, in an effort to have RBG “own” some white male judge, the screenwriters have her making a false claim about the content of the Constitution. This is not a good move. I echo Adler’s hope that the producers fix that line.

(n.b. Some people have tried to defend the line, saying that “the Constitution” in this context should be interpreted to mean “the unamended Constitution” or “the original Constitution.” But there is no reason that a lawyer arguing a constitutional case before a court would mean “the unamended Constitution” when referring to “the Constitution,” because the unamended Constitution is NOT the Constitution. Not anymore, at least.

You might make the case that the RBG character in the film is making the point that the Constitution need not explicitly mention a thing to protect it, which is all well and good. The problem is that she could easily make that argument without making the false claim that “freedom” doesn’t appear in the Constitution, and even if the unamended Constitution didn’t include “freedom,” it did include “liberty,” which kind of undermines the argument above, and also the analogy between “woman” and “freedom” has limited utility, since “woman” is a class of persons and “freedom” is not, etc. Basically there’s no reasonable way to interpret this line that doesn’t make the screenwriters look silly. That’s because the screenwriters specifically chose to sacrifice clarity, and perhaps also truth, so that the line would deliver more ownage to RBG fans.)

The RBG Movie Was Good

Tonight I saw RBG, a documentary about Supreme Court Justice Ruth Bader Ginsburg. I am not what you would call a fan of Ginsburg, but I am a fan of the film. It showed me what Ginsburg was like as a person and portrayed her career (especially her career as an advocate, prior to her appointment to the bench) in a way that even conservatives like me should be able to appreciate. Much about her story is inspiring, from her relationship with her husband to her admirable performance in law school (which she did while taking care of a young child and her sick husband) to her career of legal advocacy with the ACLU. While I don’t care for Ginsburg as a judge, there is a lot about her as a person that I think people should try to imitate.

My favorite parts of the film related to Ginsburg’s marriage and family. Her husband, Martin, whom she met when she was 17, played a significant role in supporting her as she pursued her judicial career. Despite being one of the best tax lawyers in New York, he moved down to D.C. when she received an appointment to the D.C. Circuit Court of Appeals. In spite of his own brilliance, he had no trouble taking a backseat to his wife. I find his commitment to her admirable, and hope that I will be similarly supportive of my future wife.

When Ginsburg was in law school, her husband became ill with cancer. She had to take care of him and their young daughter while completing her coursework… and helping him with his own. Despite these complications with her family, Ginsburg made law review at Harvard solely on the basis of her academic performance. Whatever disagreements you have with Ginsburg philosophically, and I have many, you must acknowledge that she was brilliant and indomitable.

What strikes me about Ginsburg is that, in many ways, she breaks the feminist mold. She had a child before attending law school. We are often told that women need to postpone having children in order to pursue education and advance in their career, but Ginsburg appears to prove that wrong. Moreover, Ginsburg transferred to Columbia Law so that she could be with her husband when he graduated and got a job in New York. The difference in reputation between Columbia Law and Harvard Law was not as significant then as it is now, but that was still a sacrifice that she chose to make for the sake of her marriage.

Besides her family life, I enjoyed learning about Ginsburg’s career as an advocate for women’s rights. Ginsburg argued six cases before the Supreme Court and won five; all had to do with sex discrimination. Her arguments generally had to do with the Equal Protection Clause of the Fourteenth Amendment. I’m not super familiar with the cases she argued, and I’m generally skeptical of trying to effectuate political change through litigation, but I appreciate the work she did to ensure that women and men receive equal treatment under the law. Generally speaking, I think that a straightforward reading of the Fourteenth Amendment requires our laws to treat men and women alike (with some exceptions that might apply only in contentious cases).

I will never be convinced that Ginsburg deserves the worship that she receives from progressives. Nevertheless, I believe that she is a model citizen who played a significant role in the development of the women’s rights movement, and that there is much to emulate in her life. Films like RBG help us in these hyper-partisan times, as they show us how much there is to admire in political figures (which Ginsburg certainly is a political figure) that has nothing to do with politics. Ultimately, I think that may do our republic more good than anything Supreme Court Justices do. When Americans who hold varied beliefs have virtuous role models, everyone wins.

Private Wealth and Politics

Disclaimer: I am not a socialist.

Elizabeth Bruenig writes, “As more left-flank challengers face off with center-left incumbents and more democratic socialists begin looking toward public office, beware: You will all be called champagne socialists or yacht communists, the ritzier and more radical counterparts of limousine liberals.”

This is probably true. A substantial number of conservatives have an adolescent fixation on “owning the libs.” One of the best ways to “own” people is to “expose” their “hypocrisy.” And what is more hypocritical than a socialist with a yacht?

But Bruenig’s bigger point in her article is that the moderate affluence of some socialists shouldn’t count against them. To a degree, I think she’s right. You can be a person of means and still sincerely believe that inequality is a serious problem that can best be solved by socialistic policies. Politicians are always partially motivated by self-interest, but they’re also motivated by their respective visions of the common good. If you’re trying to criticize a candidate as young as Ocasio-Cortez (who is just 28), then you should presume that her platform is more a result of youthful idealism than of hypocrisy and cynicism. Criticize her because her proposed policies won’t work, not because she’s putting on a show to get votes.

At the same time, though, I do think that we should expect socialists to live modestly. Indeed, I think we should expect everyone who cares about the common good to live modestly. Individual persons have a specific obligation to the poor that is distinct from our society’s collective obligation to the poor. You can’t blame people for questioning someone’s commitment to the latter if they don’t demonstrate a similar commitment to the former.

It’s just as important, however, to make sure that advocates of small government demonstrate this commitment. In fact, for a proponent of small government to neglect his personal duties to his less fortunate neighbors is even more of a problem than for a democratic socialist to do so. The socialist (mistakenly) thinks that the only sufficient solution to poverty is government action, so it makes sense for him to push for government policies instead of giving to charity. The fiscal conservative, on the other hand, is skeptical of the capacity of government to fix things, and points to private charity as a better alternative. If, then, he doesn’t give, how are we supposed to trust him when he says 1) that he cares about the poor and 2) that private charity is better at alleviating poverty than the government?

I instinctively favor small government, mostly because I think that governmental bureaucracies tend to be poorly run and wasteful. I also don’t want the state to wield too much influence over the lives of everyday Americans. But small government only works if the people are willing to pick up the state’s slack. If we’re not going to have a gigantic welfare state, then we’re going to need people to actively care for one another.

TL;DR Everyone should be less focused on themselves and more focused on the common good. If you want the state to decrease inequality, then get a head start by giving your own resources to help the poor. If you want the state to remain as small as possible, then prove that we don’t need a larger welfare state to care for the poorest among us by caring for them yourself.

Hypocritical Pro-Lifers

You see claims like the one above pretty often. My first problem with such claims is that they’re not necessarily true. There are obviously “pro-life” people who aren’t actually all that pro-life. At the same time, many pro-life people do care for the poor, the fatherless, the abused, etc. And they do so for the same reason that they advocate for the unborn: they respect the dignity of every human person. If comments like this are aimed at the pro-life movement in general, then they are just wrong. If they are aimed at hypocritical pro-lifers who aren’t willing to fully affirm the dignity of all persons, then they should make that clearer.

My second problem is that these statements often come from pro-choice people who are trying to delegitimize the pro-life position by attacking the character of the people who hold it. This is what is called an ad hominem. The character of the people who hold a particular view has no bearing on whether the view is true. Even if most pro-lifers are hypocrites who don’t really respect human dignity, it’s still evil that our law treats fetuses as non-persons who can be killed at will.

I occasionally see pro-lifers say similar things in a way that I find much more helpful:

This appears to be true. Moreover, rather than calling pro-lifers hypocrites, the tweet says that they have failed to love their neighbors in a specific way that has undermined their credibility as advocates for the unborn.

I don’t agree with everything in the thread that follows Pyle’s first tweet. People tend to assume that if you’re against a particular government policy that’s supposed to reduce poverty, then you don’t care about reducing poverty. But it’s not unreasonable to think that a large welfare state crowds out civil society, and that the church and charities should be leading the charge to alleviate suffering, rather than the state. Nevertheless, I do agree that pro-lifers sometimes fail to grasp what it might mean to affirm the dignity of every human person, and that this failure makes it harder for outsiders to see why we care so much about the unborn.

The pro-life agenda is not just to make abortion illegal, but to make it unthinkable. And the only way to do that is to show people what a comprehensive ethic of human dignity looks like. This means that being pro-life needs to mean more than just wanting to criminalize abortion. All people are made in the image of God. Let’s act like it.

Women’s Healthcare

Lately I’ve been thinking a lot about the morality of contraception, which led me to a podcast called The Catholic Feminist. I am not a Roman Catholic, nor do I consider myself a feminist, but so far I have found the podcast helpful. In particular, an episode titled “Women’s Healthcare and Natural Family Planning” has provoked some reflection.

The episode’s host, Claire, and her guest, Leah, both agree that it is a shame that “women’s healthcare” has become so thoroughly identified with the prescription of contraception and the availability of abortion. In essence, our current understanding of women’s healthcare is primarily concerned with inhibiting the one of the primary natural functions of women’s bodiesbearing children.

What is the source of this belief? Why on earth would we consider self-induced infertility to be an essential form of healthcare?

I trace it back to the liberal redefinition of the person as an autonomous utility-maximizer. Persons exist to pursue their own pleasure, which will result in the attainment of the greatest good for the greatest number, or so it goes. If this is the fundamental nature of what human beings are, then everything else should yield, even if that includes our bodies.

Men’s bodies don’t put up a fight to this redefinition in the same way that women’s bodies do.  We don’t bear children, nor do our bodies have to regularly prepare themselves to bear children. This makes it easier for us to think of ourselves as autonomous utility-maximizers instead of persons embedded in networks of duties and obligations oriented toward the common good. In order to make the same transition for women, however, we have had to suppress their bodies’ natural functions.

In the podcast, Leah goes so far as to call this misogyny, which sounds right. We now believe that women need to artificially inhibit the natural function of their bodies in order to achieve their fullest potential. In other words, women must effectively deny a part of who they are in order to be persons (e.g. autonomous utility-maximizers). If we’re serious about affirming the dignity of women (and men, for that matter), then we have to reject this faulty understanding of what it means to be a person.

Courts Don’t Strike Down Laws

I recently read an excellent article titled “The Writ-of-Erasure Fallacy,” by Jonathan Mitchell. It is long, and laypeople might have a difficult time wading through it. But the key point is extremely important, and it is something that everyone should know. In short: courts don’t strike down laws.

This might come as a surprise, because many people think that this is precisely what courts do. They interpret the Constitution and strike down any laws that they take to violate it. After all, how could a law continue to be a law after the Court has declared that it violates the Constitution?

Mitchell’s article explains how. In order to understand his thesis, however, one must understand what it really is that courts in our legal system do.

Courts resolve cases and controversies. In order to resolve cases and controversies, judges must look to the law to determine what right has been violated and whether a remedy exists for the violation. When appellate judges (such as the justices of the Supreme Court) decide cases, they create precedent which binds lower courts. For example, if the Supreme Court interprets a statute to resolve a particular case in a certain way, then all lower courts will be bound to resolve similar cases in a similar way.

Sometimes, courts have to determine whether a statute is constitutional. After all, if a statute violates the Constitution, then it would be unlawful for a court to apply it to resolve a dispute. Suppose, then the Supreme Court resolves a case, holding a statute unconstitutional in the process. Lower courts would then be bound not to apply the statute.

The statute, nevertheless, remains a statute.

I’m Sick of Protest Culture

The walkout today has me thinking about protest and its pros and cons. Obviously, protest can be a good way to effect social change. But it can also be a way for young, narcissistic idealists to peacock before their peers. Encouraging this sort of peacocking is bad, because encouragement is the last thing narcissists need. At the same time, we don’t want to just be complacent. There are things about the world that suck, and we might be able to do something about it.

The ideological war of the past couple years has made it hard for me to regard protest positively. My knee-jerk reaction when I hear about protests is to cynically dismiss them as virtue-signaling. Sometimes this reaction may be correct, but it often is not. In any case, even when people protest on behalf of causes that I agree with, I find myself trying to distance myself from them psychologically. I’m hypercritical of everything they do and say. I hate that I’m like this now.

I want to stop gun violence. But when I hear about students protesting against it, my first thought isn’t “Wow! That’s great!” but “They are being used as pawns.” Which makes me sad, because I would much rather see these protests as a sign that young people are participating in the life of the polis, and that they actually care about politics.

In short, I’m torn. There are things we need to change. This is beyond doubt. It’s a good thing that people care about criminal justice reform, police accountability, racism, and mass shootings. But too often, I feel that these protests end up being a form of political theatre, serving to boost the self-esteem of the participants instead of to persuade or challenge their fellow citizens. It’s not enough to “send a message” or to “let your voice be heard,” you actually need to say something that might convince others to join you. And in order to do that, you need to know what you’re talking about.

In other words, effective protest is more than just venting. It’s not enough just to have a protest. Protests need to persuade. Effective persuasion on the part of protesters requires learning, which, in turn, requires time and humility. Or it will require relinquishing physical safety, as it did the civil rights protesters who endured beatings at the hands of the police in southern cities. When protesters learn about the issues they’re protesting and are prepared to sacrifice something on behalf of their communities, they show themselves to be good, engaged citizens. But you don’t need to be a good citizen to vent, even if you’re venting alongside hundreds or thousands of your peers.

I’ll keep thinking about this. Even as I’ve written, my thoughts have evolved. Maybe I’ll figure out what I think and write something in a few days.

2 Capitalisms

I generally don’t like the word “capitalism.” This is because, in my mind, capitalism isn’t an “ism.” That is, it’s not an ideology or even really a system, but the absence thereof. People who criticize capitalism generally aren’t criticizing freedom or markets, but an ideology which holds that humans are individual self-interested actors who seek to maximize benefits to themselves, and that we should not stop them from doing so in almost any circumstance.

This criticism is spot-on. Insofar as capitalism is an ideology that exalts self-interest and profit-seeking, it should be rejected. Freedom of choice and markets should not be thought of as means of maximizing the ability of individuals to pursue their self-interest, but as advancing some other sort of more substantive good. And insofar as these things hinder, rather than promote, that good, they should be modified or replaced with something else, albeit cautiously.

So there’s ideological capitalism and there’s instrumental capitalism. You can believe that free markets and profit-maximization are desirable in themselves, in which case you’re an ideological capitalist. Or you can believe that free markets, as a general rule, are the best way to promote the common good, in which case you’re an instrumental capitalist. The first position is indefensible and incompatible with even considering the merits of a non-capitalist economic system. The second is reasonable in some circumstances, although it might not be in others. We can have more capitalism or less capitalism if we’re instrumental capitalists. If we’re ideological capitalists, we either have it or we don’t.

It seems to me that markets are a highly effective way to advance the common good, provided that people acting within them are not profit-maximizing robots. The problem is that as ideological capitalism has become ascendant, people have more and more closely resembled such robots. Fewer people are asking whether creating a new technology or financial instrument would be desirable for society at large. Instead, they just ask if it will make them money in the short run. Often, it will. Hence the 2008 financial crisis. Hence the creation of addictive technologies that take all of our data so that Google can sell it to the highest bidder. Hence political commentators who spew lies and sensationalism at every opportunity.

Markets in themselves do not cause these problems. People, acting freely within markets, do. The question, therefore, isn’t whether markets are good or not, but whether we can change people’s behavior within markets. I think we can, but it’s unclear exactly how. And the task of reforming the human heart is far more daunting than that of reforming the structures in which we live our daily lives.

Why You Should Learn to Read Court Opinions

Supreme Court Rules Immigrants Can Be Detained Indefinitely

Wow! How concerning! I’m going to post on social media about how outrageous it is that the highest court in the land is so hostile to immigrant rights! I haven’t read the opinion or anything like that, but I did read this article. The whole article. Not just the headline. Surely this means I’m prepared to comment intelligently on the Supreme Court’s ruling.

Unfortunately, it does not. The headline above is a blatant mischaracterization of what the Court actually ruled. Assuming the person who wrote the story is somewhat competent at reading legal opinions, the headline probably qualifies as a lie. But I’m more prepared to assume incompetence than malice. Reading legal documents is hard, and even very smart people tend to be bad at it. Especially when they have ideological axes to grind, which tend to make it harder to read a legal document dispassionately.

The lesson here is that you should take everything you read and hear about legal developments with a grain of salt. Law is complicated, and most people don’t understand it. Incompetent journalists are shielded from criticism because there are relatively few people willing and able to criticize them for botching stories on legal subjects. The best way to be informed is to actually read the legal opinions so that you know what’s in them. Otherwise you’re at the mercy of journalists who may have no clue what they’re talking about.

To demonstrate that the headline above is wrong, I will show you some key parts of the relevant legal opinion.

Here is a summary, which comes at the beginning of the opinion:

JUSTICE ALITO delivered the opinion of the Court, except as to Part II, concluding that §§1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention. The Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. Pp. 12–31.

Note that this does not say that detained aliens do not have the right to periodic bond hearings. It merely says that Sections 1225(b), 1226(a), and 1226(c) do not give them such a right. There’s an important difference. Some rights are conferred by the Constitution, some by statute. This right, while clearly not conferred by the statute (as Justice Alito demonstrates), may very well be conferred by the Constitution. That question was not decided.

Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to
consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.

Here Alito explicitly says that the court has not ruled on whether periodic bond hearings are required under our law. While the statutes do not require such hearings, the Constitution may, and Alito instructs the Ninth Circuit to consider the constitutional question. It’s unclear what will happen in subsequent litigation, but the Court has made no substantive changes to our law that will adversely affect immigrant detainees. All they have done is reiterated that courts can’t rewrite statutes in order to avoid answering constitutional questions.

There’s a lot more to the opinion, but you only really need to read the previous paragraph to see that the headline at the beginning of this post is indefensible. This holds as a general rule: you don’t need to read much of an opinion to figure out what the holding is. So make sure when you read about an outrageous court ruling that the ruling is actually outrageous. Often, you will find that it has been blown out of proportion. When cases implicate hot-button issues, it’s understandable that many focus only on who “won” or “lost” while ignoring what the Court actually decided. Understandable, but not excusable. Don’t do it. Read the opinions.