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Go Home Two Sentences

JULY 13, 2012

Two Sentences

BY LEON WIESELTIER

THERE ARE MANY ways to read legal opinions, and not all of them are investigations of law. For many years I have been reading Supreme Court opinions not in the lawyerly way, because I lack the competence and the interest. The lawyerly standpoint misses too much about life, and even about law. It can become an obstacle to a full understanding of social developments: in the study of the Internet, for example, significant concerns about copyright and privacy have overwhelmed more significant concerns about the psychological, cultural, moral, and even spiritual effects of our plague of screens. Law is only law, even in a republic of laws. So I read Supreme Court opinions untechnically, amateurishly, as documents of ideas, of philosophical and political conceptions, of historical interpretations. It is as such documents that some of them exert their most lasting influence upon society. I certainly do not count myself among the adepts who grasp the pilpul of health care. (The crudity of our politics is owed in part to the fact that some of our crises are too arcane to be commonly understood, and so we swing between experts and charlatans.) But there are two sentences in the Supreme Court’s health care opinions that, for this citizen-reader, illuminate (the one) and exemplify (the other) our sorry situation, and vindicate my untrained but expansive approach to these texts, which are the living literature of our system of self-reckoning.

“WHEN CONTEMPLATED in its extreme, almost any power looks dangerous.” This wise utterance appeared in Justice Ginsburg’s opinion, a magnificent shredding of her conservative colleagues’ apocalyptic portrayal of government action. I was reminded of a sentence by Walter Benjamin about morbidity’s friendship for stupidity: “How immensely simplified the world is when it is examined for its worthiness for destruction.” The question at issue, in Ginsburg’s opinion, was the efficacy of inaction: can someone who is not active in a market, such as an individual who has chosen not to purchase health insurance, still be said to participate in it, and alter it, and therefore be properly subject to regulation? For Chief Justice Roberts, the answer was plain and literal: “The distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers. ... Individuals are no more ‘active in the self-insurance market’ [he is quoting Ginsburg] when they fail to purchase insurance than they are active in the ‘rest’ market when doing nothing.” This is shallow stuff. Inactivity is often a cause, and is responsible for all sorts of outcomes. It is Roberts who was the metaphysical philosopher when he spoke of markets uniformly, abstractly, as if they are all the same, and Ginsburg who was the practical stateswoman when she impiously insisted on attending to the actual features of a particular market, in which we are all participants, with insurance or without, because we are all corporeal and mortal, and will all sicken and die. But Roberts and the other conservatives were exercised, as always, not by the fragility of people but by the theory of government. He began his opinion with a condescending little civics lesson about enumerated powers and limited powers, as if supporters of the Patient Protection and Affordable Care Act were unaware of our constitutional arrangements, and proceeded to caution direly that those arrangements are under threat. Ginsburg exposed the speciousness of the panic. Against the conservatives she wickedly cited an admonition about slippery slope arguments by Robert Bork. Hysteria, she correctly suggested, is just a perspective. A nightmare proves nothing. When the conservatives contemplate government powers from an extreme, as Ginsburg correctly says they do, they make an epistemological choice based upon an ideological inclination. But the assessment of a danger should be a supremely empirical exercise. Most importantly, Ginsburg’s sentence rehabilitated the modulated nature of rational action. The conservatives may scream limited government, but it is the liberal who believes in the possibility of strong but limited exertions of power, of power controlled by reason and balanced between efficacy and legitimacy. For the conservatives, every government profanation of the market (except to save a bank’s ass) is an illusion of limited action, a stratagem, a trick—the nose of the camel—the augury of the end.

AS IF TO CORROBORATE Ginsburg’s analysis, there appeared in the opinion by Scalia, Kennedy, Thomas, and Alito the dark observation that to argue that inactivity in a market affects commerce—here is the second sentence—“is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.” The leviathan! What country do these patriots live in? This incendiary throwback to anti-Federalist rhetoric must have come from Scalia’s pen. One of the pleasures of reading Supreme Court opinions is the regular rediscovery of the exaggerated nature of Scalia’s reputation for brilliance. He is merely a radical. He has only the strengths—easy clarity, militant confidence, entertaining scorn—of a completely settled perspective. He wrestles with nothing. Naturally he and his fellow alarmists cite the Founders—Hamilton, in Federalist 33, warning floridly against the federal legislature becoming “the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane”; but the originalists got the original wrong. Hamilton was actually warning against such a warning, and defending forceful state action, because “government ... is only another word for POLITICAL POWER AND SUPREMACY.” “What is a power,” he asked, in a discussion of taxation, “but the ability or faculty of doing a thing?” And “what is the ability to do a thing but the power of employing the means necessary to its execution?” And “what are the proper means of executing such a power but necessary and proper laws?” Behold Hamiltonian liberalism! If only Obama would speak this way, and defend the nobility of government, the rightness of its agency, instead of blushingly declaring, as he did the other day, that “government can’t solve every problem,” which of course it cannot, but neither can civil society, and the problems that government can solve no other entity can—instead of pandering to the politics of excitability practiced by the Republicans and their representatives in robes.

Leon Wieseltier is the Literary Editor of The New Republic.

This article appeared in the August 2, 2012, issue of the magazine.

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72 comments

"The question at issue, in Ginsburg’s opinion, was the efficacy of inaction: can someone who is not active in a market, such as an individual who has chosen not to purchase health insurance, still be said to participate in it, and alter it, and therefore be properly subject to regulation? For Chief Justice Roberts, the answer was plain and literal: “The distinction between doing something and doing nothing would not have been lost on the Framers, who were ‘practical statesmen,’ not metaphysical philosophers. ... Individuals are no more ‘active in the self-insurance market’ [he is quoting Ginsburg] when they fail to purchase insurance than they are active in the ‘rest’ market when doing nothing.” This is shallow stuff. Inactivity is often a cause, and is responsible for all sorts of outcomes. It is Roberts who was the metaphysical philosopher when he spoke of markets uniformly, abstractly, as if they are all the same, and Ginsburg who was the practical stateswoman when she impiously insisted on attending to the actual features of a particular market, in which we are all participants, with insurance or without, because we are all corporeal and mortal, and will all sicken and die. But Roberts and the other conservatives were exercised, as always, not by the fragility of people but by the theory of government." I agree with Ginsburg here as well as with Wieseltier's reading of her comment, yet I don't know what this has to do with his allusion to Walter Benjamin who is made to say: " I was reminded of a sentence by Walter Benjamin about morbidity’s friendship for stupidity: 'How immensely simplified the world is when it is examined for its worthiness for destruction.'" I would like to know where Benjamin said this and what exactly LW relates this to the discussion on the constitutionality of health care? Coming from Benjamin this view of the world's simplification when looked at its destructive potential is pretty ironic given the writer's own fate. One wishes Benjamin had taken more seriously the world's destructive potential. It might have saved his own life.

- arnon1

July 13, 2012 at 9:28pm

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Excellent insight by Leon. When it comes to government, Republicans and other conservatives in America have become paranoid hysterics. This bodes ill for our future. Government is the only thing that can save our society from paranoid hysterics--except when the government is controlled by paranoid hysterics. We vote them into power at our peril.

- magboy47.

July 13, 2012 at 10:31pm

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"This bodes ill for our future. Government is the only thing that can save our society from paranoid hysterics--except when the government is controlled by paranoid hysterics. We vote them into power at our peril." magboy, how do you square your view with LW view that: "Ginsburg exposed the speciousness of the panic. Against the conservatives she wickedly cited an admonition about slippery slope arguments by Robert Bork. Hysteria, she correctly suggested, is just a perspective. A nightmare proves nothing."

- arnon1

July 13, 2012 at 11:11pm

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I agree with this brilliant insight by Justice Ginsburg: "When the conservatives contemplate government powers from an extreme, as Ginsburg correctly says they do, they make an epistemological choice based upon an ideological inclination. But the assessment of a danger should be a supremely empirical exercise. Most importantly, Ginsburg’s sentence rehabilitated the modulated nature of rational action. The conservatives may scream limited government, but it is the liberal who believes in the possibility of strong but limited exertions of power, of power controlled by reason and balanced between efficacy and legitimacy. For the conservatives, every government profanation of the market (except to save a bank’s ass) is an illusion of limited action, a stratagem, a trick—the nose of the camel—the augury of the end." I especially like the following: "The conservatives may scream limited government, but it is the liberal who believes in the possibility of strong but limited exertions of power, of power controlled by reason and balanced between efficacy and legitimacy." I wish Obama's campaign pointed out the difference between limited rational governance and irrational limited governance. The former is on the side of measured rule of justice the latter on the side of limitless power.

- arnon1

July 13, 2012 at 11:19pm

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I'm looking forward to reading this and the essay by Rosen about Roberts.

- basman

July 14, 2012 at 12:53am

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I'll add even before reading it that I read the whole ACA opinion except on the issue of Medicaid expansion. I thought Ginsburg's opinion was superb and made mincemeat of the conservative position that those not purchasing insurance are not in commerce, which issue, in commerce or not, is at the heart of the commerce clause aspect of the case.

- basman

July 14, 2012 at 12:57am

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Magboy your comment eludes me. The actual comment by Bork, worthy of inclusion by Wieseltier, noted by Ginsburg and forming the theme of this piece, is that, I paraphrase, considering the "slippery slope" doesn't neccesitate skiing to the bottom. I also thought the reference to the statement by Benjamin was apt: only seeing the dangers of the radical exercise of state power is as distorted and oversimplified as seeing the world only as worthy of destruction.

- basman

July 14, 2012 at 1:53am

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basman, "Slippery slope" always implies skiing to the bottom. The Left, notably the ACLU, also uses the term, and they're hysterical, too. One of the things I've learned from studying police states is that the slope doesn't become slippery until after a police state actually takes over. Only then are rights taken away, one by one, case by case, individual by individual. And even then it takes a good while. Both the Right and the Left, when they refer to the "slippery slope," are implying that we could slip gradually into the abyss in a society where the Constitution is still generally protecting us. Not so. The abyss awaits us only after we've suffered a staggering catastrophe. If we collapsed economically today to the extent that we did prior to the Great Depression, it's very possible for a police state to take power in America, at least temporarily. Tens of millions of people might be in the streets with guns in their hands and there would be a power vacuum. Until that day the term "slippery slope" is meaningless--ironically, as long as lawyers keep reminding us of it and keeping us on our toes! Yes, we still have to fight to keep the Constitution in place. And lawyers will make sure we do.

- magboy47.

July 14, 2012 at 3:44am

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I don’t think there is a universal understanding of the phrase “slippery slope” magboy. In the ACLU’s parlance, it has meant nothing so hysterical as slipping into the abyss, but rather the gradual erosion of constitutional protections as a result of deciding constitutional issues on an ad hoc basis rather than in accordance with principle. For example, the ACLU has defended groups like the American Nazi Party and the KKK against government attempts to suppress their speech. The speech at issue was in fact repulsive to the ACLU (as it was to presumably the vast majority of Americans). But the ACLU argued that if First Amendment protection can be denied where the government finds the content of the speech repulsive, that leaves no principled basis for deciding what speech is protected, and imperils First Amendment protection for all of us. I don’t think that is a “hysterical” view. Dhurtado

- NR143296

July 14, 2012 at 10:10am

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not supposed to ski it to the bottom... The way Wieseltier reads this, and the way I understand it is that when we survey the consequences of a proposal or a law we don't always have to assume the worst imaginable consequence as either dictating the way things will be or as informing our perspective. It's wise in other words in surveying consequences to make the best realistic assessment of them one can and not necessarily suppose the worst consequence tells the tale. That's precisely what the "broccoli horrible" is, skiing the analogy to the bottom, assuming the most ludicrous theoretically possible consequence and reasoning from there. It's another version of the reductio ad absurdum.

- basman

July 14, 2012 at 10:29am

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I completely agree with you basman. But I think a reduction ad absurdum argument is different than the ACLU’s argument that there must be a principled basis for determining whether the government has a sufficiently compelling interest to suppress speech, and that, in the absence of such principle, there is a danger that First Amendment protection will be eroded. Dhurtado

- NR143296

July 14, 2012 at 11:23am

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Are apple cart manufacturers required to install seat belts? Are there laws that make it a primary offense for not buckling up said belts?

- jacko

July 14, 2012 at 11:53am

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Actually, the full quote is, “Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.” I missed the first few words. D.H. I didn't see your post when I made my last comment. In any event I agree with your differentiating my use of reductio ad absurdum and the ACLU argument on the first amendment, which you characterize. I obviously didn't have that in mind when I said what I said. That said, insofar as deciding civil liberties issues, my understanding, going back to law school, is that there is a difference between a principled adjudication as such, say Hugo Black's absolutist position on the First Amendment, and the inevitable weighing of competing values in resolving liberty issues. On that second approach, I get confused between a principled approach and and sui generis approach because the latter by definition is a case by case weighing of competing values and interests as structured by the specific factual circumstances. I also am not sure what in these contexts what ad hoc(ery) is. Those wanting to argue against the ACLU position will, surely, cite the principles embodying the values they put against, say, freedom of speech in any particular circumstance. They will pay homage to the importance of the liberty but say that in this instance it is outweighed by whatever they cite in opposition. There is a kind of ad hoc(ery) built into the weighing of what should get prevailing importance, save for clear cases.

- basman

July 14, 2012 at 12:02pm

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You know, Mr. Wieseltier, that Walter Benjamin wasn't noting "morbidity’s friendship for stupidity"; he was praising the destructive character, whose Apollonian image results from an insight into how radically the world is simplified when tested for its worthiness for destruction. Just sayin'.

- rmutt

July 14, 2012 at 12:13pm

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NR143296, I'm out of my element when talking about law, and I'm not always clear when not talking about law. I guess what I was trying to say is worry, but not too much, about individual rights only after the government takes over the media and starts going house-to-house confiscating our guns. But, you're right. We still have to consider case-by-case erosion of freedoms now, just to keep us on our toes. I think what LW and basman were talking about is don't start with the worse-case scenario when discussing a constitutional question. It can lead to some ridiculous conclusions. E.g., the NRA considers Obama to be a tyrant because, among other things, a U.S. citizen is not allowed to purchase more than 10,000 rounds of ammunition at one time. I think this law was in place years before Obama became president. I wonder why the NRA didn't call G.W. Bush a tyrant. Hmmm.

- magboy47.

July 14, 2012 at 12:26pm

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Well, an extreme version of “ad hocery” would be that the government can suppress speech wherever it deems the speech to be morally odious, or wherever it seeks to promote an interest that trumps a citizen’s interest in freedom of speech. At the other end of the spectrum is the absolutist principle that speech is speech, the right to which can virtually never be abridged. The ACLU probably tends toward the absolutist view. But the balancing tests that have been devised by the Court – and which attempt to address the fact that absolutism can create irresolvable conflicts between competing, yet legitimate values – attempt to infuse some principle into the ad hocery. For example, under those tests, the government can suppress speech only where it has a *compelling* interest in doing so, and has chosen the least restrictive means of advancing that interest. And the compelling interest can virtually never be disagreement with the content of the speech. That framework is at least an attempt to mitigate the ad hocery in the adjudicative process. It admittedly does not even come close to eliminating ad hocery, but is there a better way? Dhurtado

- NR143296

July 14, 2012 at 12:29pm

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I am completely with you magboy. It's just that -- for me -- "slippery slope" triggered a different concept than the reduction ad absurdum arguments used by Roberts and company. What Roberts and Kennedy fail to recognize is that the Court has already removed virtually all limits on the Commerce Clause power by ruling that it authorizes Congress to prohibit private, non-commercial conduct (i.e., growing marijuana or wheat for personal consumption) where it supposedly “affects” interstate commerce. The only distinction Roberts can draw is that the farmer in the Wickard case was nevertheless involved in an “activity” (growing wheat), even though it was not commercial activity. That is a vacuous distinction. It remains the case that the farmer was not a participant in the commercial wheat market. So on what basis could Congress nevertheless regulate his non-commercial conduct? To employ a reduction ad absurdum argument, under the Raich and Wickard cases, Congress could prohibit you from growing tomatoes (or broccoli) in your back yard if it deemed that activity to “affect” interstate commerce. Dhurtado

- NR143296

July 14, 2012 at 12:47pm

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"One wishes Benjamin had taken more seriously the world's destructive potential. It might have saved his own life." Not to be contrary for the sake of contrariness, but it seems to me that the proximal cause of Benjamin's death was that he overestimated the world's destructive potential, not that he didn't take it seriously enough. He was so undone by an unconfirmed report that the Spanish authorities might deport him to France and thence into the Nazi's clutches that he killed himself. Had he waited until daylight, he'd have learned that, fascists though they might have been, the Spaniards were not about to destroy him. The rest of his party, including Arthur Koestler who also tried to off himself albeit unsuccessfully, were granted safe passage to Portugal and thence to the USA. I hesitate to employ the 'c'-word ("cowardice"), but WB's end does seem rather pitiful, an overreaction to perceived threats that turned out not to be real. Thinking about Benjamin's death brings to mind a story about a very different reaction to a more severe threat. My father-in-law, a Jew who weathered the war as a schoolboy, safe in Cairo, Egypt, has a business associate here in his adopted Australia who is also Jewish and an immigrant to Oz. This other man was born in Europe in the late 30s. At five years of age, he and his family were loaded onto a boxcar headed for the camps. Along the top of the car there were slit windows too small for a person to fit through--unless that person was a small child. Somewhere in the night the train stopped and in what I view as an act of supreme courage and faith in life if not God, the boy's parents lifted him up and shoved him out through the slit into the darkness. He survived the fall and survived the war as a vagabond. If his his parents had viewed the world as Walter Benjamin did, as totally determined and totally black, they likely would have found a way to quietly smother their son to spare him the horror that awaited them. Instead they saw a chance for their son, and believed that as tenuous and perilous as it must be, the world still might make a place for him. And it did.

- AaronW

July 14, 2012 at 12:48pm

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The Walter Benjamin reference: the essay "The Destructive Character," reprinted in the collection "Reflections" (p. 301), and volume two of the Selected Writings (p. 541). The German is in volume four of the Gesammelte Schriften (p. 397). How's that for pedantic! And Aaron, I think Walter Benjamin's suicide was not a precipitous response to the Guardia Civil in Port Bau but the immensely sad culmination of a relentless marginalization that had pushed him from his beloved Berlin in 1933 and then his even more beloved Paris in 1940 while destroying everything he valued about culture and scattering his friends and helpers. Yes, it's a bitter irony that the other refugees made it to Lisbon and freedom, but that isn't Walter Benjamin's fault. He did have a thoroughly disillusioned view of human history, but the anecdote you tell of the child pushed out of the stopped train is not so far from Benjamin's notion of a Jetztzeit or now-time. "For the Jews the future was not homogenous and empty time. For in it every second was the tiny gate through which the messiah might enter." For all his melancholy, the two guiding notions in Benjamin's thought are Hope and Happiness.

- rmutt

July 14, 2012 at 1:15pm

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rmutt “You know, Mr. Wieseltier, that Walter Benjamin wasn't noting "morbidity’s friendship for stupidity"; he was praising the destructive character, whose Apollonian image results from an insight into how radically the world is simplified when tested for its worthiness for destruction. Just sayin'.” This is a much better reading, thanks

- arnon1

July 14, 2012 at 1:30pm

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I know quite a little about Walter Benjamin but it seems to me from the little I know that he was a deeply troubled and tormented man, afflicted terribly by his own demons, which extreme and exigent circumstances could only make worse. If so, it seems quite lacking to attribute Benjamin's death to a rational over estimation of things or to something approaching cowardice. It seems more than anything to have been caused by the marriage made in hell between his internal roiling turmoil approaching the condition of, or being, mental illness and the circumstances he found himself in at the end of his life. As to the quote by Wieseltier of Benjamin--"How immensely simplified the world is when it is examined for its worthiness for destruction," consistent with my knowing quite a little about him, I don't know the context or necessary subtext of the quote, only the text as it appears here. The text for me evinces the rather straight forward reading I gave it above--the world is stupidly simplified when seen only from the angle of skiing to the bottom, to mix a metaphor and to refer to another point on this thread. I dom't know what it means to say about this quote that Benjamin was talking about "the destructive character" and the "Apollonian image" resulting "from an insight." I think understand the insight but neither "the destructive character" nor the "Apollonian image." DH I don't really disagree with your last comment addressed to me. But isn't there an incipient circularity to what you say. Save for aberrant cases where the court is clearly wrong, the legal reasoning supporting the abridgment of freedom of speech, it if prevails, will always be cast in the form of a principled resolution. And if in developing cases the jurisprudence has it that the liberty interest gets weakened and other values get higher pride of place in certain contexts, that won't necessarily be ad hocery or less principled, that will rather be the changing of the law and in context a different kind of authoritative legal analysis. A practical example of that may be some stuff I just read about shoring up the constitutional sturdiness of laws penalizing hate speech against groups even without incitement based on the importance of the dignity of human identity in a racially and ethnically diverse society.

- basman

July 14, 2012 at 1:36pm

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AaronW: First your anecdote; “If his his parents had viewed the world as Walter Benjamin did, as totally determined and totally black, they likely would have found a way to quietly smother their son to spare him the horror that awaited them.” WB didn’t have one set way of “viewing the world.” That was part of his problem: an inability to come to terms with the actual world in which he lived. However, the survival of the child was very, very, chancy and you can’t draw any conclusions about how people should behave from this one incident. I do agree, though, that taking some kind of action is better than passivity.

- arnon1

July 14, 2012 at 1:39pm

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Next: Aaron “Not to be contrary for the sake of contrariness, but it seems to me that the proximal cause of Benjamin's death was that he overestimated the world's destructive potential, not that he didn't take it seriously enough. He was so undone by an unconfirmed report that the Spanish authorities might deport him to France and thence into the Nazi's clutches that he killed himself. Had he waited until daylight, he'd have learned that, fascists though they might have been, the Spaniards were not about to destroy him. The rest of his party, including Arthur Koestler who also tried to off himself albeit unsuccessfully, were granted safe passage to Portugal and thence to the USA. I hesitate to employ the 'c'-word ("cowardice"), but WB's end does seem rather pitiful, an overreaction to perceived threats that turned out not to be real.” As stated above, by rmutt, Walter Benjamin’s suicide was over-determined. (I don’t mind discussing Benjamin who is more interesting that the Robert’s court, but alas this thread is about the court and not about Benjamin. I still don’t understand how LW relates the Benjamin sentence to his otherwise perceptive article about the Supreme Court. As a side note; I have always found Benjamin’s ideas, whose collected works in English I have been reading for sometime now, undeveloped and not easy to extrapolate. I much prefer the work of his friends Gershom Scholem and I suggest those interested in Benjamin they read his account of their friendship.

- arnon1

July 14, 2012 at 1:47pm

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Does anyone know if there is a separate transcript of Ginsburg's opinion on the case, and where I might find it?

- arnon1

July 14, 2012 at 2:05pm

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basman: I was simply quoting Benjamin himself: "The destructive character is young and cheerful. For destroying rejuvenates, because it clears away the traces of our own age; it cheers, because everything cleared away means to the destroyer a complete reduction, indeed a rooting out, of his own condition. Really, only the insight into how radically the world is simplified when tested for its worthiness for destruction leads to such an Apollonian image of the destroyer. This is the great bond embracing and unifying all that exists. It is a sight that affords the destructive character a spectacle of deepest harmony." I'm not saying that's transparent, but I think that for Scalia or Roberts to count as destructive characters, they'd have to be trying to destroy their "own condition," i.e., the function of a Supreme Court Justice. All of this, of course, is well off topic, and I'm not quarreling with Mr. Wieseltier's point either that morbidity is friendly with stupidity, or that the conservatives on the Supreme Court illustrate that truth. Just that Walter Benjamin didn't make the point, and that his own sympathies were much more toward extremes than toward deference. In a 1926 letter to Gershom Scholem he claims that his political credo is: “immer radikal, niemals konsequent,” always radical, never consistent. Not so good for judge. And Scholem's book on Benjamin, the Story of Friendship, is a wonderful memoir. As is most of what Scholem wrote (a thinker far closer to Mr. Wieseltier's outlook and attitude, I'd guess, than Walter Benjamin). Basta! I've imposed on this thread too much already!

- rmutt

July 14, 2012 at 2:05pm

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Thanks for your comment Mutt. That's helpful.

- basman

July 14, 2012 at 2:14pm

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I'm gonna' give the fuller quote you provided some more thought.

- basman

July 14, 2012 at 2:17pm

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“is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.” A car is dangerous when you are drunk. Why are cars being permitted?

- Nusholtz

July 14, 2012 at 2:31pm

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Now that would make a great opening line to a country song!

- ironyroad

July 14, 2012 at 2:32pm

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Aargh! I didn't think Nush would scoot in before me, but in case it's unclear I mean basman's last comment, two above.

- ironyroad

July 14, 2012 at 2:35pm

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...is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”... Isn't this starting at the very bottom of Mount Slippery?

- basman

July 14, 2012 at 3:20pm

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Basman, I don’t see any circularity. I do agree, if this is what you are saying, that the Court’s balancing tests leave lots of room for disagreement about the relative value of the government’s interest vs. the constitutionally protected liberty interest. I also agree that they leave room for unprincipled sophistry cast as a form of principled analysis. But I also think that rules of decision do have a constraining effect on judges simply importing their own personal values and intuitions into the decision-making process. To take your example, it has long been a rule of decision in First Amendment jurisprudence that the suppression of speech based on disagreement with the viewpoint being expressed is never permissible. Without getting into the weeds about what constitutes “hate speech,” laws criminalizing speech that insults or expresses animosity toward particular groups would quite arguably be a breach of the viewpoint-neutral rule of decision. The ACLU would likely oppose laws criminalizing “hate speech” on the ground that, if permitted, they would open the door to other kinds of viewpoint-based anti-speech laws. What about anti-government hate speech? What about anti-poor-people hate speech? What about anti-rich-people hate speech? What about anti-corporation hate speech? If we have a rule of decision regarding anti-speech laws that the government need only show that the speech is highly offensive to certain groups or sectors of society in order to suppress that speech, that would be a very substantial erosion of First Amendment protection. And if that’s not the rule of decision that would permit anti-hate speech laws to be upheld, what is? Is it simply the ad hoc belief that there is something unique about racist speech? Dhurtado

- NR143296

July 14, 2012 at 3:32pm

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Justice Ginsburg has certainly brought out the boneheadedness of our "conservative" justices: “When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar ian state as a credible reason to deny Congress the author ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opin ion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (assert ing, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).”" Justice Scalia et al can't even tell the difference between "government" regulating a necessary activity such as the safety of drinking water and a body's automatic motor function such as breathing. By obscuring such distinctions they use reductio ad absurdum to make their claim that the government by regulating health care arrogate to themselves the right to interfere in every aspect of human existence. Overstretching analogies isn't the only figure of speech conservatives use to discredit liberal views, they also use (and probably more often) the figure of reductio ad absurdum.

- arnon1

July 14, 2012 at 3:47pm

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"...is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”..." "Isn't this starting at the very bottom of Mount Slippery?" Yes. But to put perhaps a finer point on it, it ignores the fact that, even if the Commerce Clause is not self-limiting other than that what is regulated must be or affect interstate commerce, there are other limits on congressional power that would circumscribe the Commerce Clause power, such as the Bill of Rights and the democratic process. Dhurtado

- NR143296

July 14, 2012 at 3:57pm

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Dhurtado “The ACLU would likely oppose laws criminalizing “hate speech” on the ground that, if permitted, they would open the door to other kinds of viewpoint-based anti-speech laws. What about anti-government hate speech? What about anti-poor-people hate speech? What about anti-rich-people hate speech? What about anti-corporation hate speech? If we have a rule of decision regarding anti-speech laws that the government need only show that the speech is highly offensive to certain groups or sectors of society in order to suppress that speech, that would be a very substantial erosion of First Amendment protection. And if that’s not the rule of decision that would permit anti-hate speech laws to be upheld, what is? Is it simply the ad hoc belief that there is something unique about racist speech?” I don’t see that, Hurtado. The examples you cite: “What about anti-government hate speech? What about anti-poor-people hate speech? What about anti-rich-people hate speech?” Do not constitute real groups: “being poor or rich” is a condition one finds oneself in, it does not mean belonging to a group the way you would if you were a “person of color” or a member of a religious minority. The reason to oppose hate speech laws is not because it “would open the door to other kinds of viewpoint-based anti-speech laws….” The reason to oppose hate speech laws is because it’s almost impossible to define “hate speech.” Is referring to someone a “water buffalo” hate speech?

- arnon1

July 14, 2012 at 3:58pm

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Well, first, arnon, I think we agree that laws proscribing hate speech would be problematic under the First Amendment. And I agree that one of the problems is that it would be difficult to satisfactorily define “hate speech.” But I don’t see that it is any less difficult to define “belonging to a group.” Why is race or color or religious affiliation not “a condition one finds oneself in”? And are you saying that if we did come up with a satisfactory definition of “hate speech” you would have no problem with laws criminalizing hate speech? How would you write a rule of decision that would permit the proscription of hateful speech toward racial groups or religious groups, but not toward other sectors of society? Dhurtado

- NR143296

July 14, 2012 at 4:57pm

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As as has been noted the Benjamin quote in itself is somewhat off topic. But there aren't really iron clad rules here. The more I look at it, the more baffled I am.  I'm ok up to the insight about how the world is simplified by measuring its worthiness for destruction.  Though I now in context of the fuller quote I can see the original line Wieseltier quotes as meaning arguably the opposite of what I first thought. I first thought, in line with Wiseltier's own argument, the line was derogatory in scorning the simple minded reduction of the world to its worthiness for destruction, which is, I argued, how Wieseltier means it, the stupidity of such one-sided reductiveness, of seeing things from the perspective of an apocalyptic nightmare, the way Republicans see fraught examples of tyrannical government power everywhere if inactivity can get one inside the commerce power.  But the obverse reading is that it's a kind of a breakthrough to see the world as worthy of destruction. For in that, arguably, according to the quote, all needless complexity, complication and diversion get swept away in assessing the world's worthiness for destruction; the world is eminently so worthy and the question of that worthiness is the only important questions to be asked. I'm not so clear on the Apollonian image of the destroyer. That image doesn't jibe with my everyday understanding of "Apollonian"- clarity, harmony, restraint, thought, logos and, perhaps, too, high-minded and noble. So I can't readily put the destroyer together with that understanding of the characteristics of Apollonian.  And I'm not clear how the insight--the beneficent radical simplification that emerges when testing the world's worthiness for destruction--becomes the (to be celebrated) "great bond embracing and unifying all that exists" and how "It is a sight that affords the destructive character a spectacle of deepest harmony."  I understand how applying the quote to the locked in conservative justices means that they would have to "destroy their own condition." But, and this is beyond what I take Wieseltier to be suggesting, these justices could be thought to be on the brink of destroying their own status. The thought is that a big reason Roberts turned back from invalidating the ACA holus bolus is that that had the potential of deligitimating the court irreparably sinking into the opposite of what it ideally is--neutral, apolitical institution adjudicating constitutional questions--namely, a partisan institution in which ideology is the main driver of outcomes. Were that condition to obtain, wouldn't the locked in conservatives be effectively destroying their function as Supreme Court justices? 

- basman

July 14, 2012 at 4:58pm

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Was this piece really necessary? It is, as usual, incomprehensible.

- mlottman

July 14, 2012 at 7:23pm

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DH for your interest here are sections from the Canadian Criminal Code criminalizing hate speec and trying to achieve the balancing of competing interests. You will see that in one part of these provisions--s. 319 (2)) incitement to violence isn't a necessary element: Hate Propaganda Marginal note:Advocating genocide 318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Marginal note:Definition of “genocide” (2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely, (a) killing members of the group; or (b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. Marginal note:Consent (3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General. Definition of “identifiable group” (4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation. R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1. Previous Version Marginal note:Public incitement of hatred 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. Marginal note:Wilful promotion of hatred (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. Marginal note:Defences (3) No person shall be convicted of an offence under subsection (2) (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada. Marginal note:Forfeiture (4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct. Marginal note:Exemption from seizure of communication facilities (5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section. Marginal note:Consent (6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General. Marginal note:Definitions (7) In this section, “communicating” « communiquer » “communicating” includes communicating by telephone, broadcasting or other audible or visible means; “identifiable group” « groupe identifiable » “identifiable group” has the same meaning as in section 318; “public place” « endroit public » “public place” includes any place to which the public have access as of right or by invitation, express or implied; “statements” « déclarations » “statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations. R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2. Previous Version

- basman

July 14, 2012 at 7:33pm

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Mutt, I'm sure that Benjamin's melancholy and accumulated losses did exert a powerful influence on him in regards to his decision to take his own life, however the fact that another, Koestler, tried to join him in suicide does cast the act in a somewhat different light, making it look more like an act of political defiance and, at least in retrospect, a misguided one. In any event, with regards to my original point, allowing for the fact that I cannot know what was in Benjamin's mind when when he swallowed the morphine, I still think it's safe to say that, contra arnon, a greater appreciation for the world's destructive potential was not the thing needed to save him.

- AaronW

July 14, 2012 at 7:42pm

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The lurking circularity is this if I'm understanding your previous comment: if case law in some contexts puts other interests over the liberty interest, say, in the area of hate speech, that isn't unprincipled. It's unprincipled if a court patently, or even not so patently, ignores the law to arrive at tendentious result. But it's not unprincipled in some instances to abridge the liberty interest as for example in the case of hate speech. To say that that is necessarily unprincipled means one's premise, the liberty interest is virtually inviolate. If you say the ACLU on this issue is near to absolutist, then I think its legal arguments will have, as I say, an incipient circularity. One other thing, I didn't mean to get into a discussion of the merits of criminalizing hate speech, short of incitement, I was simply averting to a specific context, hate speech in itself, that has attracted arguments for the desirability of the legality of laws proscribing it as Canada and other countries have done, again short of inciting violence. I tend, without being a rank absolutist on the point, to favor such laws while recognizing the obviously powerful arguments against them, including slippery slope ones. I think a useful analogy for thinking about whether to protect hate speech is the argument for obscenity being unprotected by your First Amendment.

- basman

July 14, 2012 at 7:49pm

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Was this to be addressed to me or Mutt: 07/14/2012 - 7:42pm EDT | AaronW considering my 07/14/2012 - 1:36pm EDT | basman.

- basman

July 14, 2012 at 7:52pm

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Hurtado: “I don’t see that it is any less difficult to define “belonging to a group.” Why is race or color or religious affiliation not “a condition one finds oneself in”? First definition of hate speech target group: any group of people designated as a target group because of “racial,” or “ethnic” characteristics due to biological features. Hence, for example, African Americans who were so defined for centuries, or Jews (especially in Europe) who were said to be “a race apart.” The biological features (racial traits or markers) that distinguished these groups were unchangeable. Many other “ethnic groups” fall under this category” Chinese, Polynesians, etc. With rich or poor people thought of as a group membership is not fixed or immutable. More often than not many members in these groups stop being rich or poor and join other socio economic denominations. Hence hate speech targeting say, rich people is more abstract. “And are you saying that if we did come up with a satisfactory definition of “hate speech” you would have no problem with laws criminalizing hate speech?” There are laws against incitement to violence against groups of individual members of such groups and these laws should be sufficient. “How would you write a rule of decision that would permit the proscription of hateful speech toward racial groups or religious groups, but not toward other sectors of society?” I’ll leave this up to lawmakers to come with the satisfactory language to ban incitements against target groups.

- arnon1

July 14, 2012 at 9:08pm

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AaronW “Mutt, I'm sure that Benjamin's melancholy and accumulated losses did exert a powerful influence on him in regards to his decision to take his own life, however the fact that another, Koestler, tried to join him in suicide does cast the act in a somewhat different light, making it look more like an act of political defiance and, at least in retrospect, a misguided one.” Above you said that Koestler (who wasn’t exactly a shining example of sanity) tried but failed to kill himself. Are you now saying that he and Benjamin formed some kind of pact? The historical evidence seems to read a little differently: “After the outbreak of World War II, Koestler was detained by French authorities for several months in Le Vernet Internment Camp among other 'undesirable aliens', mostly refugees.[24] They released him in early 1940 due to strong British pressure. (Koestler described the period 1939 to 1940 and his incarceration in Le Vernet in his memoir Scum of the Earth.) Shortly before the German invasion of France, in order to get out of the country, he joined the French Foreign Legion, deserted it in North Africa, and made his way to England.[25] While waiting to gain passage on a ship out of Lisbon, he heard a false report that the ship had sunk on which Hardy was traveling, and that she and his manuscript were lost. He attempted suicide, but survived.” http://en.wikipedia.org/wiki/Arthur_Koestler#The_war_years.2C_1940.E2.80.9345

- arnon1

July 14, 2012 at 9:18pm

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PS: in the article on Walter Benjamin on Wikipedia it says that: “Benjamin's colleague Arthur Koestler, also fleeing Europe, attempted suicide by taking some of the morphine tablets, but he survived.[17]” This probably the source for Aaron’s story about a “suicide pact.” However, when you read the footnote to this manufactured factoid a different view emerges: "Afraid of being caught by the Gestapo while fleeing France, [Koestler] borrowed suicide pills from Walter Benjamin. He took them several weeks later when it seemed he would be unable to get out of Lisbon, but didn't die." Anne Applebaum, "Did The Death Of Communism Take Koestler And Other Literary Figures With It?" Huffington Post, 28 March 2010, URL retrieved 15 March 2012." One died in Northern Spain, the other in Lisbon. It would have been quite a feat for the man in Lisbon to have attempted suicide with the man in Northern Spain.

- arnon1

July 14, 2012 at 9:25pm

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“In any event, with regards to my original point, allowing for the fact that I cannot know what was in Benjamin's mind when when he swallowed the morphine, I still think it's safe to say that, contra arnon, a greater appreciation for the world's destructive potential was not the thing needed to save him.” Contra Aaron I would say that Benjamin wasn’t a well-balanced person and that that contributed greatly to his morbid frame of mind. Had he appreciated how dangerous his position was he would have joined his former wife in England (she had offered to help him settle there) or gone to Palestine as his friend Gershom Scholem had been begging him to do. No, Benjamin preferred to act the flâneur until it was too late.

- arnon1

July 14, 2012 at 9:32pm

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mlottman “Was this piece really necessary? It is, as usual, incomprehensible.” If you are referring to LW’s article on the Supreme Court decision with its incomprehensible reference to Walter Benjamin’s essay I agree. Btw: just reread Benjamin’s essay on character which is one of my least favorite of his writings and found it again to be a confused mess with its mixture of metaphysical speculation and psychology without any definite references to actual history. His destructive character is as mythic as Hegel’s “master slave” relationship and much less clear.

- arnon1

July 14, 2012 at 9:38pm

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"As as has been noted the Benjamin quote in itself is somewhat off topic. But there aren't really iron clad rules here. The more I look at it, the more baffled I am." No, there are not. But I was hoping for a good discussion on the health care decision. Doesn't look like its going to happen, so any topic (from analogies to characterization and suicide) is fair game.

- arnon1

July 14, 2012 at 9:41pm

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btw: I just notriced that the editors chnged the title of LW's article.

- arnon1

July 14, 2012 at 10:48pm

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Basman- What I was positing as unprincipled is a ruling that the government may suppress the speech of the Nazi party or the KKK because it finds the views of those groups to be odious. A principled basis for abridging speech would be applicable across the board and would not permit the government to suppress speech merely because it disagrees with the viewpoint being expressed. So the ACLU’s question would be, if the government can suppress the speech of the KKK because it finds that speech odious, why can it not suppress ANY speech it finds to be odious? But I am not saying the Court’s balancing tests are unprincipled. I thought that is what YOU are saying. The balancing tests may be susceptible of manipulation, but at least they force the Court to try to enunciate principles that are universally applicable, rather than simply permitting the government to suppress speech is doesn’t like. So what is the principle that would permit the government to suppress “hate speech,” short of it being an incitement of violence, that would not also permit the government to suppress any speech that it finds odious? Dhurtado

- NR143296

July 15, 2012 at 12:44am

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“What I was positing as unprincipled is a ruling that the government may suppress the speech of the Nazi party or the KKK because it finds the views of those groups to be odious.” But the government can (and does) suppress the Nazi party’s plans for genocide or some Islamicist group plans to murder people, say, in an airport terminal. What is the difference between indicting someone for planning (plotting) murder (even if he hasn’t yet put these plans into action) and suppression of “free speech?” What is the ACLU’s position on incitement or planning to murder people? Wouldn’t the ACLU argue that if you can stop a KKK person from planning to murder you it can stop me from planning to cook breakfast?

- arnon1

July 15, 2012 at 1:06am

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"Contra Aaron I would say that Benjamin wasn’t a well-balanced person and that that contributed greatly to his morbid frame of mind." Contra Aaron? I agree with you entirely, arnon! With the exceptions of culturally determined suicide--e.g. radical Muslim suicide bombers, seppuku and Jonestown--or cases such as that of Erwin Rommel when there was quite literally no other choice, suicide almost always evidences psychological imbalance and morbidity. Suicide is usually either the result of frank mental illness such as depression or schizophrenia or else is an impulsive act driven by drunken, drugged, immature or otherwise deranged logic that fails to hold up under the light of day.

- AaronW

July 15, 2012 at 5:04am

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"Contra Aaron I would say that Benjamin wasn’t a well-balanced person and that that contributed greatly to his morbid frame of mind." 'Contra Aaron?' Arnon, I totally agree with you! Aside from cases of culturally determined suicide--e.g. radical Muslim suicide bombers, seppuku and Jonestown--enter cases such as that of Erwin Rommel where there was literally only one choice, suicide is almost always triggered by psychological instability in morbidity. You there is the result of Frank psychiatric illness such as depression or schizophrenia, or else it is an impulsive act spurred by drunken, drugged, immature or otherwise deranged logic that fails to hold up in the light of day.

- AaronW

July 15, 2012 at 7:09am

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Whoops. Sorry to repeat myself.

- AaronW

July 15, 2012 at 7:09am

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"Above you said that Koestler (who wasn’t exactly a shining example of sanity) tried but failed to kill himself. Are you now saying that he and Benjamin formed some kind of pact? The historical evidence seems to read a little differently: I too got my info from wikipedia which got it wrong. Koestler did, in fact, attempt suicide using morphine from the same stock as Benjamin, but not at the same time. Here's a quote from an NYT piece on Koestler: "Rushing southward through France ahead of the invading Nazi armies in 1940, he ran into the philosopher Walter Benjamin, who shared with him half the morphine tablets Benjamin would use, weeks later, to commit suicide."

- AaronW

July 15, 2012 at 8:15am

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"Above you said that Koestler (who wasn’t exactly a shining example of sanity) tried but failed to kill himself. Are you now saying that he and Benjamin formed some kind of pact? The historical evidence seems to read a little differently: I too got my info from wikipedia which got it wrong. Koestler did, in fact, attempt suicide using morphine from the same stock as Benjamin, but not at the same time. Here's a quote from an NYT piece on Koestler: "Rushing southward through France ahead of the invading Nazi armies in 1940, he ran into the philosopher Walter Benjamin, who shared with him half the morphine tablets Benjamin would use, weeks later, to commit suicide." One assumes that in handing over the morph, Benjamin and Koestler would have discussed the circumstances in which they might use it, however I agree that unless they swallowed the dope at the same time, which they did not, it could not properly be called a suicide pact which indeed is what I was implying.

- AaronW

July 15, 2012 at 8:20am

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DH One argument is that in a racially and ethnically diverse society groups such as those which the Canadian government, as one example, has identified: ...Definition of “identifiable group” (4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.... are entitled to a dignified existence and that there is--on the analogy of obscenity as unprotected speech--no " redeeming social value" in the willful public promotion of "hatred against any identifiable group." The very structure of our diverse society demands it. And even though not explicitly stated, like privacy, human dignity is a fundamental constitutional value inhering in the very nature of  constitutional liberal democracy.   Of course, hate speech is odious but its odiousness co exists with it being, without redeeming social value, an affront to human dignity, which lies, again, like privacy, at the unarticulated heart of what liberal democracy is geared to protecting and promoting as being at the very centre of "human happiness." I can live with law makers carving out "identifiable groups" and my interpretation of the unifying thread in the Canadian definition is the idea of the most fundamental positive ways in which groups of people tend to identify themselves, identify the essential meaning of their own humanness. And I can live with courts drawing lines in their adjudication of what does and does not get protected. Again you can note the framework for what gets adjudicated in the Canadian example I cited. My larger underlying point, again, is that, for example within the Canadian framework, or in a potentially evolving American jurisprudence in the instance of hate speech, it's not unprincipled to leave it unprotected. 

- basman

July 15, 2012 at 9:22am

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Well, first, Arnon, I should make clear that I do not represent or work for the ACLU. I do know that part of the ACLU’s mission is to protect First Amendment rights, and that its philosophy is that the First Amendment should be construed to protect speech that most of us find offensive because to do otherwise would erode the First Amendment’s protection for all of us. Examples of the ACLU practicing what it preaches are: (1) its representation in 1977 of the National Socialist (Nazi) Party of America with regard the town of Skokie, Illinois trying to prohibit the NSPA from marching or demonstrating in Skokie, which is a predominantly Jewish community in which about 1 of 6 residents at the time were Holocaust survivors; and (2) its current representation of a KKK chapter that has been barred from participating in an adopt-a-highway program. That said, to my knowledge, the ACLU has never taken the position that the First Amendment protects conspiracy to commit crimes or what the Supreme Court has called “fighting words” – words that present a clear and present danger of inciting violence. In this conversation, we are talking about “hate speech” that does not fall into the category of “fighting words,” but which nevertheless expresses hostility toward people because of their race, ethnicity, religion, sexual orientation, etc. I believe, without knowing with certainty, that the ACLU would regard laws proscribing hate speech as such to be violative of the First Amendment, for the same reason that it has supported the First Amendment rights of the NSP and the KKK. Dhurtado

- NR143296

July 15, 2012 at 12:44pm

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I think that hate speech that's meant to incite violence is a civil liberties no brainier right up there with shouting fire etc. The more vexed issue is hate speech that can't be fairly said to incite violence but is meantopus lively to promote hatred of the vilified group.

- basman

July 15, 2012 at 1:08pm

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"But is meant to promote"

- basman

July 15, 2012 at 1:15pm

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Basman- To take your last paragraph first, I make two points. First, I have not said that it would be unprincipled to leave hate speech unprotected. I have said that, in a polity that is governed by the First Amendment of the US Constitution , it would be unprincipled to leave hate speech unprotected based merely on the fact that the government or the populace finds it offensive. That would do substantial violence to the First Amendment, the very purpose of which was to protect speech that the government might find offensive. But I am open to someone crafting a principle upon which hate speech could be criminalized consistently with the First Amendment. Second, I do not think it is a minor point that Canada does not have something analogous to the US First Amendment. In that circumstance, the only principle at stake is that the hate speech law was democratically enacted, right? As to the principle you have articulated for criminalizing hate speech – I have to say that while I am emotionally sympathetic to the idea of shutting down hatefully bigoted speech, I think what you have articulated is a sophistic way of arguing that certain people, but not all people, should be immunized from being the subject of hostile speech, and/or that only certain kinds of hostile speech (the kinds that reflect an ideology with which the government does not disagree) should be protected. Aren’t we all entitled to a “dignified existence”? Aren’t all individuals entitled to a dignified existence, without regard to whether they can be characterized as belonging to an identifiable group? And why only a subset of “identifiable groups”? Shouldn’t ALL hate speech be proscribed, as long as it can be deemed to have no “redeeming social value?” And this discussion does not even address the problem that others here have pointed out of trying to define “hate speech” and trying to determine whether, even if hateful, it has any “redeeming social value.” Dhurtado

- NR143296

July 15, 2012 at 1:51pm

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Quick immediate comment before I deal later with other points in your comment: PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Fundamental Freedoms Fundamental freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. This is consitutionally entrenched and out court looks to American precedent in a more vigorous way than American courts do to foreign examples. To be sure there are significant differences and we don't have the American traditions, history and deeply embedded enculturation of the liberty values, having been until the eighties a parliamentary democracy rather than a consitutional democracy with entrenched judicial checks on government power. But still and all we now have had freedom of expression as part of our fundamental law for the last generation plus. I'll consider the other points you make and respond once I can.

- basman

July 15, 2012 at 2:21pm

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NR143296 “Well, first, Arnon, I should make clear that I do not represent or work for the ACLU. I do know that part of the ACLU’s mission is to protect First Amendment rights, and that its philosophy is that the First Amendment should be construed to protect speech that most of us find offensive because to do otherwise would erode the First Amendment’s protection for all of us.” The notion of “free speech erosion” is as much a myth as is the Scalia’s notion that if the government requires people to get health insurance, it may also require them “to breathe.” I am a supporter of free speech but not the way it is defined today by the Supreme Court. I don’t believe that “campaign donations” is free speech and I don’t believe that Nazis, Islamists, or others who incite to murder whole peoples is free speech. Btw: Hurtado my last comment was posted tongue in cheek, and I do know that you do not work for the ACLU which I support except when they take extreme positions insisting that “free speech” is an absolutist concept. Those who preach absolutist notions of free speech should realize that minorities often time pay the prize for this freedom with their lives. Many as time in the past Blacks were murdered by people who were influenced by KKK rhetoric which was and is protected free speech. The victims of hate crimes also have fundamental rights.

- arnon1

July 15, 2012 at 2:44pm

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DH There is no argument, not one that I ever made, that criminalizing hate speech should rest on the ground merely that it is offensive. Though that it is at a minimum offensive helps inform the ground I argue for, human dignity, which, like privacy, is at the unarticulated heart of any system of guaranteed and protected rights and liberties, the very premise that generates them. I have already dealt with your second point by citing the Canadian Charter. But your very point is a bit off stride. I'm not arguing that the Canadian example is an argument for criminalizing hate speech. I'm rather offering it to you in partial answer to the question you put to Arnon about how might such a law be drawn. And I'm offering it to you as an example of how one government tried to balance the free speech concerns and related "chilling" arguments that stand against criminalizing hate speech. You say " sophistic." I say sophisticated. :-) That a state,  like for example the Canadian government, draws lines setting out who are protected segments from society which may omit other groups not coming within those lines does not, I contend either vitiate the principle of human dignity or render it mere high sounding verbiage. And while I at least understand the argument "why some and not others," I don't understand the argument "why only certain kinds of speech." If the desire is to proscribe the public ventilation of speech designed to promote hatred of identified groups, what other speech as matter of principle ought also be included. There is an infinity of content that gets included, the point not being so much the specific content as such as any content that breaches the proscription. The justifications of freedom of speech whether a social contract justification, Locke, or a search for truth justification, Mill, or the very structure of democracy, political necessity justification, all mean according in America in particular a high primacy to that liberty. That means restricting it needs to be tailored to achieve balanced protection. The Canadian definition of identified groups, for example, has the virtue of including every citizen--who as an individual wouldn't come within those markers?--without stupidly trying to micromanage every conceivable offence that might be given. Moreover, the groups are identified by the hallmarks of hate speech as it is known and has been experienced. Where some other hallmark emerges it can be considered and perhaps included. So I'm not seeing sophistry here at all. And fwiiw, I have read American academics who make arguments along these lines. And as noted the human dignity principle is enshrined in other jurisdictions. Finally, I'll just mention another line of justification for criminalizing hate speech of a consequentialist nature. That has to do with the "clear and present danger, imminent harm or near certainty test" or however you want to label it, being too restrictive and not taking in the nexus between an incrementally accreting climate of hate contributed to by each instance of hate speech not in itself comprising a clear and present danger and the likelihood of criminal acts against the victimized group. This is a refinement and extension of the clear and present danger ground. But I don't rest my argument on it. I rest it on the ground of human dignity.

- basman

July 15, 2012 at 4:38pm

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You make some excellent points Arnon. But I cannot agree with you that the concept of "free speech erosion" is a myth. It is virtually self-evident that constitutional rights can be eroded (or expanded) via judicial interpretation. And it is certainly true that care needs to be exercised to ensure that, in deeming certain speech unprotected, we are not promulgating a rule or principle that would leave unprotected speech that we think SHOULD be protected. But putting that aside, we have been assuming in this discussion that the hate speech we are talking about is offensive and insulting, but that it cannot be causally linked to violence. As Basman says, there is near universal agreement that “fighting words,” or speech that presents a “clear and present danger” of inciting violence, is not protected. In practice, however, determining whether speech is “merely” insulting or offensive, or whether it presents a danger of inciting violence, is not easy. But I think the Court currently has struck the correct analytical balance in holding that “hate speech” may be proscribed only where it presents a clear and present danger of inciting violence. Dhurtado

- NR143296

July 15, 2012 at 9:48pm

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Amazing. 64 comments. Most (or all) intelligent, respectful, paying attention to other's comments. If I were wealthy, I would found a TNR School of Law, though I would worry about how many on the faculty might commit suicide.

- skahn

July 16, 2012 at 1:55pm

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"we have been assuming in this discussion that the hate speech we are talking about is offensive and insulting, but that it cannot be causally linked to violence. " That is part of what we have been talking about. However, were also talking about "limits" and "slippery slopes." "here is near universal agreement that “fighting words,” or speech that presents a “clear and present danger” of inciting violence, is not protected. In practice, however, determining whether speech is “merely” insulting or offensive, or whether it presents a danger of inciting violence, is not easy. But I think the Court currently has struck the correct analytical balance in holding that “hate speech” may be proscribed only where it presents a clear and present danger of inciting violence." Why is the "balance struck on free speech" fair but the balance struck on health care a "slippery slope" according to the conservative court members like Scalia? When does a "balance" become a slippery slope? That for me is the issue.

- arnon1

July 16, 2012 at 5:09pm

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btw: I should add that I am not persuaded that campaign contribution which is to say money is "speech." That too is part of the "compromise."

- arnon1

July 16, 2012 at 6:38pm

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21....13....7....comments. By LBJ lover, Then who knows who, then by lecturer in Oaxaca . Maybe skunk can complete the count.......

- JAIMECHUCH

July 18, 2012 at 9:53pm

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11 comments by ....notrated....

- JAIMECHUCH

July 18, 2012 at 10:03pm

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3......by sidekick of jeff

- JAIMECHUCH

July 18, 2012 at 10:07pm

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Correction the 7 comments were not by the Oaxaca lecturer were by the Australian expatriate that usually uses psychiatric terms when he is loosing arguments. He is pretty busy with his kangaroo and emu pets which he indulges in burying his head in the sand. A select group of TNRites.

- JAIMECHUCH

July 18, 2012 at 11:25pm

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