Monday, March 18, 2024

Art Maven Roundup

All of the sudden, I've been on an art kick. The below image is a silkscreen I recently purchased from DC-based artist Halim Flowers. Flowers was convicted of felony murder as a juvenile and sentenced to two life terms. He was released after serving 22 years following statutory reforms aimed a juvenile offenders who had received life sentences, and now is showing in galleries around the world.


Pictured: "Audacity to Love (IP) (Blue)" by Halim Flowers. The colors are meant to be reminiscent of the Israeli and Palestinian flags (blue and white, and red, white, and green).

* * *

Trump continues to show his contempt for American Jews, saying any Jew who doesn't support him "hates their religion" (and Israel).

An in-depth story about a White supremacist who was elected to city council in Enid, Oklahoma, and the recall campaign to try and remove him.

Given the well-covered softness in Biden's support in the Muslim community, it seems suicidal to me for Democrats to give into the repulsive Islamophobic attacks holding up the confirmation of Third Circuit Court of Appeals nominee Adeel Mangi (the story indicates that Biden has remained rock-solid in backing his confirmation, but there may be some misgivings in the Senate Democratic caucus).

Writing on the sudden "heterodox" support for revisionist accounts justifying George Floyd's murder, Radley Balko flags what has been obvious for a long time: as much as this cadre likes to bleat about respecting truth, free-thinking, and rationality, it is as if not more beholden to ideologically-convenient narratives at the expense of reality. Pretty much everyone on the internet has been sharing this with their own story of the alt-center blowing past truth in order to push conservative grievance politics; mine was watching them stand in unblinking support of a hit piece on California's Model Ethnic Studies Curriculum even after it was revealed the author completely fabricated the inclusion of a seemingly-damning antisemitic quote.

Interesting retrospective on the Israeli Black Panthers in JTA.

The Supreme Court's frosty reception to the contention that government officials privately lobbying social media companies to take down misinformation is a First Amendment violation is the latest suggestion that the Court is finally losing patience with the regular drumbeat of insane legal theories emanating out of hyper-conservative Fifth Circuit.

Conversations with Normies


I enjoy talking to my brother about politics because he is, for lack of a better way of putting it, far more normal than I am. He is not passionate about politics, but he's not ignorant about it either. He pays some measure of attention because he's a good citizen who cares about the world around him, but it's not something he's independently especially interested in. There are, of course, a lot more people like him than there are people like me, even though there are a lot more people like me talking about politics online. So chatting with my brother feels like getting a sense of the pulse of normie America (even though of course he's not necessarily representative).

In terms of ideology, my brother is probably best described as a moderate Democrat. His line for the past several years has been pretty consistent in saying that there is a universe where he could imagine voting Republican, but it is not our universe because he fully recognizes that the Republican Party in America today is fully captured by insane people. 

So there was never any question that he'll be voting blue come November. But we happened to have a chat about his current political outlook on things. I present these not as endorsement or non-endorsement, but simply because what he said may be of interest to a readership who I suspect is (like me, unlike him) very much not of the normie bent.

1. He loves Joe Biden. One of the first things he said was that he's annoyed and frustrated by the notion that Biden is "the lesser of two evils" or a sort of shit sandwich you have to swallow given the alternative. My brother thinks Biden is great! He thinks he's had a tremendously successful presidency! In particular, my brother gave Biden a bunch of credit for lowering political temperatures and trying to pursue actual solutions to problems rather than demagoguing and grandstanding. 

Admittedly, my brother started off as a Biden supporter -- he was his favorite candidate at the outset of the 2020 primary (back when David was deciding between Booker and Warren). But now he wonders if he's really alone in that assessment, because so much of the prevailing narrative is centered around how nobody actually likes Joe Biden, they at best tolerate him. My brother is a loud and proud "I like Biden" guy.

2. He's lost patience with Israel's Gaza campaign. We're both Jewish, and while neither of us is super religious, we've both stayed involved in Jewish life as adults (and unlike me, he's visited Israel). He was obviously repelled by what happened on October 7 and thinks Hamas is a despicable terrorist outfit. Nonetheless, his take on the current status of the conflict in Gaza is that at this stage it feels to him as if it is no longer (if it ever was) about Israel's security, and now is just unconstrained vengeance being taken out upon the Palestinian population. He has no trust in or love for Bibi, and thinks he needs to go.

3. He's interested in Freddie DeBoer. That was, of all the names, the person he said he'd been reading recently whose work had been resonating with him -- didn't agree with all of it, but found him thought-provoking particularly on matters of mental health and "wokeness". I confessed that I hadn't thought about Freddie DeBoer in ages, so I couldn't really react to it. I suggested reading Matt Yglesias' "Slow Boring"; he laughed because Yglesias and DeBoer apparently despise each other even as they (in his mind) didn't seem too far apart when it came to tangible policy beliefs.

4. He's skeptical about the impact of "woke" trends. He doesn't identify with the efforts to destroy trans health care or anything like that (again -- he recognizes the GOP is crazy). But he did express concern about what he described as "wokeness", even though he also said he thought that term was clearly imprecise for what he was speaking of since it also captures plenty of activity he fully approves of. 

At first, I assumed he was talking about certain cringy performative activities that I could imagine being grating to someone of his views. But he emphasized that it wasn't just a matter of performance -- in his space (the non-profit world), he felt as if impactful programs that were doing a lot of good in marginalized communities were getting short-changed as donor priorities redirected towards initiatives that could more easily packaged as messaging DEI values (even if they didn't tangibly improve as many lives in the communities they purported to be uplifting). So his grief was partially an objection to performance, but with a tangible kick. I recommended he read Elite Capture: How the Powerful Took Over Identity Politics (And Everything Else) by Olúfẹ́mi O. Táíwò; he said he had heard of it but hadn't had the chance to read it.

Friday, March 15, 2024

Is Originalism a Sandwich?


In the latest iteration of her "notable sandwiches" series, Talia Lavin tackles the age-old question "Is a hot dog a sandwich?" She gathered a host of experts from a range of different disciplines to give their take, and while there wasn't a consensus, it seemed to me (I didn't count) that more leaned against it being a sandwich. The general thrust of the argument that most resonated with me, from sociolinguistics professor Matt Garley, was to frame the question as "Do people commonly or regularly refer to a hot dog (outside of this particular debate) as a sandwich?" In that light, the answer seems to be generally "no", even if it seems to formally meet the dictionary definition of a sandwich ("two or more slices of bread or a split roll having a filling in between.").

Later in the post, Talia gets a quote from Jesse Sheidlower, a lexicographer and former editor of the Oxford English Dictionary, who gave some insight on how dictionaries themselves approach this problem. Contrary to (perhaps) popular belief, dictionaries are not in the business of trying to give precise definitions that perfectly include and exclude everything that descriptively falls within the category-type of a given word. I'll quote him at length:
The general thing to know about dictionaries is that you're usually not trying to capture the complete and exact description of something; you're trying to get a general picture of what something means. This is hard enough for concrete nouns that we more or less know, like "horse" or "sandwich"; it's impossible with abstract nouns like "freedom" or "beauty". One of the most famous definitions in lexicography is the one for "door" in Webster's Third of 1961:
"a movable piece of firm material or a structure supported usually along one side and swinging on pivots or hinges, sliding along a groove, rolling up and down, revolving as one of four leaves, or folding like an accordion by means of which an opening may be closed or kept open for passage into or out of a building, room, or other covered enclosure or a car, airplane, elevator, or other vehicle."
This is what happens when you try to be exact—you get something useless.

So most dictionaries, that are written for native speakers and that assume a good-faith effort to understand the definition, give a reasonably broad definition, that will include most things that should be included and exclude most things that should be excluded.

There are, conventionally, two main types of lexicographers: lumpers and splitters. Lumpers include as much as possible ('liquid food' for soup); splitters write a dozen super-narrow definitions, and when a new variant comes up, they write another one.

Dictionaries are generally more lumpy than splitty. A sandwich is a food with something inside a bready thing. Trying to be super-precise is only going to lead to frustration (or the "door" definition above): Most people feel that a meatball sub is a kind of a sandwich but a hot dog isn't, but that's very hard to explain, so unless you have a definition like "… or a split roll having a cold or hot filling (that is not a solid length of sausage)…", you're kind of stuck.

If I can turn serious for a moment—and this is very serious—the reason that this is genuinely important, and not just a parlor game, is that people sometimes put a lot of faith in dictionary definitions. In particular, courts use old dictionaries to try to determine what words meant at a time when laws were written. But that is very much not how dictionaries should be used. If it's this hard to determine what a "sandwich" is, what are we supposed to do about words like genocide, or to bear arms? Or woman in reference to a trans woman? People literally die because dictionaries are misused. There are ways to attempt to answer these questions—corpus linguistics, sociolinguistic interviews—but thinking that a dictionary is an exact map of reality is not a correct one of these.

I wasn't expecting to see this point made in a fun post about the concept of a hot dog, but here we are. And it did crystallize for me an objection I've been flagging recently about "vulgar" textualism or originalism; a practice of judicial interpretation that purports to distinguish itself by close and careful reading of texts, but actually is just very bad at reading texts. Many of the cases that take this approach begin with a very close parsing of dictionary definitions in order to fix textual meaning. But this from the jump misunderstands what dictionaries are even trying to do. Even at the moment they are written, dictionaries are an at best imperfect map onto actual public meaning (the idea being that even if we were looking at a dictionary published today to answer the question "is a hot dog a sandwich", we'd likely be heading off in the wrong direction). And that gap only grows wider as time passes, because the actual meaning of words depends on a host of agreed-upon implicit assumptions and cultural horizons that are constantly shifting and temporally-contingent. 

We run into this question when trying to figure out how to apply an old word ("search") to technology that hadn't been invented yet when the word was written ("heat scanning"). One way of answering "is heat scanning a search under the Fourth Amendment" is to look at the dictionary definition of "search" circa 1789 and figure out if it fits. But that actually wouldn't really be the accurate answer, because what we'd actually want to know is if the relevant interpretive community would have generally used "heat mapping" as falling under the category of search. And that question, in turn, is essentially incoherent unless we also import into that community a host of surrounding cultural and linguistic practices that make "heat mapping" a legible concept that could be part of a robust linguistic pattern to begin with (if you plop down a heat mapper into 1789 without all of that context, then it's going to be seen less as a "search" and more as "eldritch magical witchcraft"). So what we're really asking when trying to figure whether heat mapping qualifies as a search today is "how would the relevant class of interpreters understand the relationship between these words, if they had the full cultural and linguistic context that we have today -- and at that point, our "originalism" is essentially just living constitutionalism.

Monday, March 11, 2024

Jewish Protests at Berkeley


I wrote a few days back about goings-on at Berkeley regarding protests -- which turned destructive -- against an Israeli speaker and a general deterioration of the situation for Berkeley's Jewish community. A few other developments have occurred since then, both of which entail Jews becoming the protesters, rather than the protested.

First, my friend and former colleague Ron Hassner has begun a sit-in in his own office, refusing to leave until the Berkeley administration takes action regarding a series of demands he's made regarding how to address campus antisemitism. Second, a large group of Berkeley Jewish students marched on Sather Gate, where a different group of pro-Palestinian students had been blocking passage as part of their own protest (and reportedly have been haranguing Jewish students in the vicinity). Initially, the plan appeared to be to force a confrontation by attempting to pass through the gate; in the end, the Jewish marchers diverted around the gate, wading across a small creek before reemerging on the other side.

I've given a recap before of my own experience at Berkeley, but that was from several years ago and certainly times and circumstances have changed since then. So I won't comment on the actual state of affairs for Jews on campus -- I'm not on the ground, and people like Hassner are. I do think this is an interesting example of Jews adopting what I termed a "protest politic" -- seeking change via the medium of a protest (as opposed to, say, a board resolution, letter to the editor, or political hearings). I wrote in that post that while I personally am averse to protests (not on general political or tactical grounds; it's a temperamental preference), it does seem that acting via protest -- sit-ins, marches, or even disruption -- was a way of marking yourself as being of a particular political class on campus and so a way of being taken seriously.
At least on campuses, it seems that certain brands of protest have become the language through which communities communicate that they are part of the circle of progressive concern. We can identify an issue as a "progressive" one by reference to how its advocates perform their demands -- the medium rather than the message. If something is demanded through a sit-in or a march, that's an issue that's in the progressive pantheon. Something that is pressed through a Board of Trustees resolution, not so much.
Again, I don't comment on whether these protests are "good", either in their tactical efficacy or their underlying demands. But I do find the adoption of this particular medium, and its comparatively transgressive character, to be an interesting development, and so I wanted to flag it.

Wednesday, March 06, 2024

The Uncommitted Story, Part II


I've been trying my best to give a dispassionate account of how the "uncommitted" campaign is doing. Obviously, supporters have an incentive to pump up its successes; opponents have a perhaps more mixed set of incentives (you don't want to give the impression that they represent the true majority, but there can be benefit in promoting a scary monster lurking in the woods). 

But for my part, I'd like to think we do ourselves no favors when we delude ourselves about the state of the world. If "uncommitted" is doing exceptionally well and demonstrating a genuine groundswell of opposition to Joe Biden's policies, there's no sense denying that just because one wishes it weren't so. If "uncommitted" is not performing especially impressively and doesn't stand out from always-present grousing at a coronated incumbent, then there's no sense deny that just because one wishes that weren't so.

So to actually figure out how "uncommitted" really is performing, it's important to establish our comparator. JTA put a piece up last night breathlessly comparing "uncommitted's" Super Tuesday support against how "uncommitted" fared in 2020. Framed that way, "uncommitted" had an outstanding night:

The uncommitted percentages barely dented Biden’s overwhelming win in each state, but far outdid 2020 percentages for uncommitted voters. In Minnesota, with 74% of votes counted at 10 p.m. Central Time, uncommitted was getting 20% of the vote; it garnered less than a half percent in 2020.

[...]

In Colorado, with 74% of the vote counted at 9 p.m. Mountain Time, uncommitted was getting 7.5% of the vote. It did not register at all in 2020.

In North Carolina,  at 11 p.m. Eastern Time, with 93% of the vote counted, uncommitted voters were 12.5% of those voting in the Democratic primary. In 2020, it was 1.64%.

In Tennessee, at 11 p.m. Eastern Time with 80% of the vote counted, uncommitted garnered 8% of the vote. It got less than a quarter of a percent in 2020.

In Massachusetts, with 51% of the count recorded at 11 p.m. Eastern Time, uncommitted was getting 9% of the vote. It got less than a half percent in 2020.

The problem is that 2020 is obviously not the right year of comparison -- an open Democratic primary with a sprawling field of candidates to choose from is very different from a reigning incumbent running for reelection (virtually) unopposed (if in 2020 you couldn't find a single Democrat of the approximately 531 running for president to "commit" to, I don't what your problem is).

So in terms of trying to give an objective assessment of "uncommitted's" performance, the actual comparison is to the last analogous presidential primary -- Obama 2012, since that was the last time we had an incumbent Democratic president running for re-election. 

In such cases, we would expect that there will always be some baseline number of people dissatisfied with the incumbent and looking to cast a protest vote. The question for "uncommitted" in 2024 is whether it is exceeding that baseline. Generously, we can assume that any overperformance compared to the 2012 figures is attributable to the "uncommitted" campaign vis-a-vis Gaza (though obviously, that might not be true). By contrast, if "uncommitted" isn't performing any differently (or worse!) than it did in 2012, then it seems unlikely that the "uncommitted" campaign is actually making much of a mark. So, for example, in Michigan "uncommitted" got 2.5% more in 2024 than it did in 2012, and then we have to decide what that level of improvement says about the strength of the underlying sentiment -- my conclusion was that this was a modest impact, but ultimately not too impressive save for the fact that Michigan's narrow margin makes anything meaningful.

With that in mind, how did "uncommitted" do compared to baseline expectations on Super Tuesday?

Unfortunately, Colorado and Minnesota didn't hold primaries in 2012, so we can't do a direct comparison. I will nonetheless eyeball agree that the 19% uncommitted took in Minnesota looks relatively impressive (though it actually isn't necessarily an outlier figure, as we'll see below). In the other three states, by contrast, things look very different for "uncommitted":

Massachusetts: 9% (2024) compared to 11% (2012)

Tennessee: 8% (2024) vs. 11.5% (2012)

North Carolina: 12.5% (2024) vs. 21% (2012)

These are all substantial underperformances compared to what we saw in 2012. Again, I understand why "uncommitted" backers are trying to juice them up, but these are not good showings! And these are the highlighted state where uncommitted did best! Except for Minnesota and Oklahoma (which seems to have a disproportionate share of randos on the ballot), Biden's broke 80% in every state he ran in on Super Tuesday. By contrast, back in 2012, Politico was running stories about Obama's primary weaknesses by pointing to states where he wasn't even cracking 60% of the vote (uncommitted got over 40% in Kentucky that year!).

So why is the media making a mountain out of this molehill? Certainly, "uncommitted" can give us some interesting microdata (the frustration among Michigan Arab and Muslim voters seems real, for instance, and notable). And in close states, any type of discontent can make a difference (though that proves too much -- any type can make a difference, meaning that any potential grouse or grumble is equally problematic). But I also think that we're seeing the effects of some relatively online journalists who are attuned to a relatively online campaign and so think there must be a "there" there. That, coupled with a deep-seated desire for anything that makes the horse-race story more interesting, and of course this is a tempting morsel.

But the reality seems to be that Biden actually is doing fine, compared to Democrats in analogous situations, of consolidating support. If anything, we've been seeing pretty persistent underestimation of his electoral appeal (itself perhaps a worthy topic for a post). "Uncommitted" right not seems to be mostly (not entirely, but mostly) sizzle rather than steak.

Tuesday, March 05, 2024

Israel Has a Right To Exist -- After That, It's All in Play, Part II


A few years ago, I flagged a poll of American Jewish attitudes regarding Israel that had some to my mind interesting data. Basically, many of the more strident "criticisms of Israel" -- ones that many mainline organizations had often characterized as antisemitic, like "apartheid" or "genocide" allegations (this was well before October 7) -- were not generally viewed as antisemitic by most Jewish respondents. To be clear, they were not agreed with either. But fewer than half of American Jews characterized such claims as antisemitic, which I found significant.

Yet there was significant outlier to this finding: the statement that Israel has no right to exist. That statement was overwhelmingly rejected and generally thought to be antisemitic. Contrary to what one might have expected, there seemed to be a significant number of Jews who had no problem with (or outright agreed with) statements claiming Israel was genocidal, but who drew a very firm line at denying its right to exist.

I found this a bit of a perplexing finding. It's not that I found the position incoherent, but it didn't seem to track any particular movement or cadre I was familiar with participating in the discourse. For example, the "thought leaders" (if you will) who tended to promote the view of Israel as an apartheid state did not, generally, take pains to affirm Israel's right to exist; in fact, they typically were quite dismissive of that claim as well. Indeed, I'm not sure I can think of any significant organization that occupies that lane of "Israel is an apartheid, genocidal state, and also it's wrong to deny its right to exist", even as statistically it seems that this is a significant quadrant of the political space.

More recent data is confirming this point, and thus deepening my confusion. A recent ADL survey found rising anti-Israel (and antisemitic) sentiments in the American public essentially across the board, some of the more alarmist findings include a third of respondents who wouldn't want to support a "pro-Israel" political candidate, almost 45% thought (at least "somewhat") that Israel was intentionally trying to inflict as much suffering on Palestinians as possible, and nearly a third thought Israel supporters controlled the media. Half of Gen Zers would be fine holding friendships with a Hamas supporter. And yet, here too, "Israel's existence" stands out as an outlier -- almost 90%(!) of all respondents thought that "Jews have the right to an independent country," a statement that may not be identical to "Israel has a right to exist," but probably is substantially overlapping for most people. Again, try to think of a major thought leader or NGO that takes the line "Jews have the right to an independent country" and also "Israel is intentionally trying to inflict as much suffering on Palestinians as possible" -- I don't know who we're talking about here. And yet, this distinction apparently does matter quite a bit.

The apparent distinctiveness of "Israel has the right to exist" or "Jews have the right to a state", which stands apart from even vitriolic criticism of Israeli policies, also can help guide how we interpret some new data on the state of antisemitism on college campuses. Eitan Hersh, who is doing absolutely essential work getting actual hard data to supplement the often "vibes-based" discourse around antisemitism, has released a series of new surveys measuring various components of Jewish (and pro-Israel) experience on campus. The first* of these, exploring the "social costs" of being Jewish as well as being a supporter of Israel on campus, found significant levels of exclusion along all fronts that rose dramatically after October 7. Some questions had nothing to do with Israel ("In order to fit in on my campus, I feel the need to hide that I am Jewish"; "People will judge me negatively if I participate in Jewish activities on campus."). But even the question about Israel -- "On my campus, Jewish students pay a social penalty for supporting the existence of Israel as a Jewish state" -- was tied to this seemingly distinct, outlier position of support Israel's existence, without any comment on particular policies (Hersh wrote that this question was "purposefully worded so that it doesn’t reference support for the current government in Israel or for any particular political view other than the right of a Jewish state to exist in the land"). Given that, the extremely high levels of social marginalization associated with this view -- over 75% say they will experience marginalization just for supporting Israel existing -- is quite alarming.

Hersh also asked a similar question of non-Jewish students: asking whether they "wouldn’t want to be friends with someone who supports the existence of Israel as a Jewish state" (so again, keyed to this seemingly distinct "Israel has a right to exist" position). While there was general uniformity amongst students of all political persuasions, liberal, moderate, and conservative, in how they answered this question (approximately 25% agreeing), the one exception was "very liberal" student for whom almost 50% agreed.

These findings might be worrisome even in taken in isolation. But juxtaposed against the broader polling which suggests that most people (Jews and non-Jews) do seem to view "Israel has no right to exist" as a distinctly problematic, redline position even if they otherwise endorse very strong criticisms of Israeli policy, and they're more worrisome still. It suggests that amongst at least some cohorts of younger Americans, the Israel-related views which trigger social sanction and penalty include even the most bare-bones "Israel has a right to exist position" that is overwhelmingly viewed as problematic not just by stalwart pro-Israel defenders, but even many erstwhile harsh critics. That, to me, is significant evidence that this problem cannot be waved aside as "conflating criticism of Israel with antisemitism" -- we have a more fundamental pathology at work here that needs to be tackled.

* The other two studies Hersh released cover how campus Jewish life and identity has altered since October 7 and how political ideology mediates student attitudes about Jews and Israel. All are very interesting, all include data that will challenge anyone's presuppositions and presumptions about where antisemitism "is" on campus and in what forms it manifests. And again, I want to applaud Hersh for giving us some helpful data in a field that is saturated with anecdote and innuendo. There's a role for narrative and a role for theory (I myself am a theorist, not an empiricist), but we're only helped when we have actual, reliable data upon which to tie our theories and narratives to, and I'm incredibly grateful to Hersh and his research partners for taking this project on.

Monday, March 04, 2024

The Work of Law

 


The Supreme Court this morning ruled in Trump v. Anderson that states cannot enforce the insurrection provisions of Section 3 of the Fourteenth Amendment against federal office-seekers. This part of the decision was 9-0,* and it rested largely on pragmatic grounds: state-by-state "enforcement" of Section 3 might lead to a patchwork of inconsistent state rulings and procedures, which would "sever the direct link that the Framers found so critical between the National Government and the people of the United States" and "could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times."

This pragmatic argument has purchase to it. This sort of "patchwork" was raised by many esteemed commentators, from all across the political spectrum. Many worried, for instance, that if Colorado was allowed to unilaterally disqualify Trump from the presidential ballot, then, say, Texas might do the same to Biden in response -- a tit-for-tat escalation that would throw the presidential election system into chaos.

To be sure, there also are certainly pragmatic arguments that push in the other direction. There is the practical need to ensure that Section 3 of the Fourteenth Amendment is actually enforced, for instance. There's also the fact that our federal system already bakes in a patchwork system of state regulation over federal elections that leads to a host of manifest inconsistencies -- that may be a bad idea, but it's one we've long accepted and will continue to accept in other contexts after this decision. And the worry about retaliatory red state action boils down to "if Colorado disqualifies Trump based on a legally plausible rationale, Texas might do so for transparently spurious and bad faith reasons. Given the state of the modern GOP, this possibility cannot be gainsaid entirely, but it is pathetic that we've even come to that point.

In any event, I digress. The main point I wanted to flag is that the Court rests its decision not so much on "originalism" or "textualism" but based on a practical assessment of what is necessary to ensure the workability of our presidential electoral process. As a pragmatist, I cannot complain about that approach -- except that it is an approach the Court only takes when it is convenient. In a year or so when we get our next Dobbs or Bruen, we will again no doubt see the Court solemnly intone that we must interpret the text of the constitution strictly in accord with the original meaning of the framers, consequences be damned (that's "results-oriented judging"!), and it will be revealed (even more than it already was) as a transparent lie. Beyond the merits of formalism versus pragmatism, it is the cheerful oscillation between the two based on the needs of the moment that reveal the fundamental arbitrariness of the governing Supreme Court majority (my fantasy is that just once we get a dissent that opens with, "the majority begins, as it must occasionally deigns to do, with the constitutional text...." and then but see cite all the cases where this Court has blitzed past the text to reach a "practical" result).

"The work of law," Justice O'Connor famously advised, "is to make the law work." I've long liked that approach. But when the work of law is revealed to be a work, not a shoot, there's little reason to trust judicial decisions that purport to rest either on workability or strict formalism.

* The Court also held, 5-4, that only Congress (not the judiciary) can effectuate the enforcement of Section 3 of the Fourteenth Amendment, based on the view that Section 5 of the Fourteenth Amendment renders this exclusively a congressional prerogative. I don't have much to say on this, except to note that I just finished teaching Section 5 doctrine in my Constitutional Law class last week and my notes contain a line about how "one view of the meaning of Section 5 is that only Congress can 'enforce' the Fourteenth Amendment; courts have to stay out. But nobody seems to take that extreme view ...." Certainly, this robust and exclusive understanding of congressional power would be news to the Congress that saw the Voting Rights Act struck down by the Supreme Court because Congress' textual Section 5 authority needed to yield to the judiciary's invented and atextual "equal sovereignty of the states" doctrine.

Friday, March 01, 2024

Berkeley Has a Tough Task Ahead of It



I just finished a draft article (now before law reviews!) entitled "They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech." As the name implies, it addresses recent controversies regarding free speech on campus, though the framing device is the Kyle Duncan incident at Stanford Law which these days feels almost quaint. In any event, one of my main objectives in the paper is to explore the position of the university administrators -- often untenured -- who are tasked with enforcing free speech policies in the context of campus protests. They occupy difficult positions, not the least because many external observers think their position is easy -- just severely punish disruptive protesters and call it day. What could be simpler than that?

Of course, things aren't as simple as that, even in the seemingly clearest cases. Earlier this week, a group of protesters organized by the "Bears for Palestine" student organization managed to violently shut down a scheduled talk by a right-wing Israeli speaker at UC-Berkeley. Protesters smashed windows and the door of the building where the talk was scheduled to occur, and allegedly assaulted and slurred Jewish students trying to attend the event.

There's little question that this behavior violated UC-Berkeley policy and, probably, state law. The UC-Berkeley Chancellor, Carol Christ, has written a strong statement denouncing these actions. And for my part, as much as I respect the right of students to engage in protest, the allegations of what happened in this event are such that severe punishment -- including potentially suspensions or expulsions -- would seem to be warranted for at least the most serious offenders. To that extent, this is a simple case.

Even still, though, I do not envy the Student Affairs officials* who are tasked with operationalizing that simple case into actual disciplinary action.

To begin, it is abundantly clear that Berkeley is under immense pressure to significantly punish someone. If at the end of their process nobody gets more than a slap on the wrist for violations of this magnitude, they will be accused of turning a blind eye to this sort of behavior, or even tacitly sanctioning it. It needs, at the end of this, to put a few heads on pikes.

But to that end, while I suspect that Berkeley will be able to identify many of the students present at the protest, it likely will not be easy to figure who exactly is responsible for the more egregious acts that would justify the harshest punishment (the antisemitic slurs, the destruction of university property). Many protesters wore masks, and the group itself was comprised of students and non-students. 

So what is the university to do? It could adopt a policy wherein it just throws the book at everyone -- "expel 'em all and let God sort it out." But that sort of short-circuiting of normal due process protections will generate intense backlash and possibly make them vulnerable to a lawsuit. Breaking windows, smashing doors; these are violations of university speech policies. But -- depending on what went down at the event -- being in the vicinity of those actions, without participating in them, may not be. It's the difference between attending Trump's "Stop the Steal" rally versus actually breaching the Capitol. One might not think the former are good people, but they haven't done anything illegal.

In short, there are severe cross-cutting pressures at play here that make reaching even the "simple" right outcome harder than it appears. Those pressures are amplified by the very loud voices on both ends of the spectrum, some of whom will insist that nothing short of a complete extirpation of all pro-Palestinian advocacy on campus means capitulation, others of whom will fulminate that any consequence to any righteous protester on any ground is tantamount to jackbooted censorial thuggery. While we can perhaps justly demand that Student Affairs professionals ignore those voices (easier said than done), their presence, too, complicates significantly the more legitimate problems the office will face in its quest to come to a good decision.

* Disclosure: My wife works in the UC-Berkeley Student Affairs Division, albeit not in a role that has anything to do with meting out student discipline.