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The Fusion of the Personal, the Political, and the Scholarly

Demonstrators arose at last week’s American Political Science Association annual meeting with signs exhorting their fellow members to “Stand Up to Torture” by bodily turning their backs on John Yoo, late of the George W. Bush administration, who presented to two sessions on wholly unrelated topics. The protests’ premise was apparently that some views so exceed the pale that those who espouse them ought not to be given a scholarly hearing even on other topics. One might have more confidence in their judgment that Yoo—of whose views on presidential authority and the legality of torture I have been sharply critical—resides beyond that pale if the pale’s scope were not permanently shifting.

But it is. And Yoo—who handled the protests with both the poise of someone who has seen this show before and a dignity that belied the demonstrators’ caricature of him—demands both a reckoning from serious thinkers and the charitable hearing due from those who were not charged with high responsibility in the fog of post-9/11 war.

The demonstrations were part of the growing practice not of disagreeing with but of delegitimizing one’s adversaries. To be sure, as Willmoore Kendall argued, a polity may be entitled to stifle certain views in order to preserve its way of life. When that should be is an immensely difficult and inherently prudential question.

For Kendall, a way of life had to be at stake. One can agree—I do—that legitimating torture in law implicates American values without accepting that it imperils the society. Indeed, the case is better that other battles, such as the astonishingly rapid demolition of gender norms that stretch unto the origins of human memory, pertain to ways of life and social survival, yet the Left would almost certainly deny that tradition is a legitimate basis for restricting speech in those areas. On the contrary, one strongly suspects the next front in the delegitimization battle is the expanding definition of bigotry and that the call will next go forth next to prevent appearances at APSA by those who are not yet with the program on gender.

Those shifting goalposts are a reason to err on the side of free speech without fetishizing it. A scholarly organization or institution is not obliged to hear all voices. As a simple matter of time management, it cannot. Choices must be made. The unserious—those like Richard Spencer and Milo Yiannapoulos—should be dispensed with. The immoral—Spencer and Yiannapoulos occupy a Venn diagram overlapping both categories—present a more difficult question.

If the left wants to draw such distinctions, it should be willing to provide a standard and stick to it. Yet there is a perverse moral relativism on the academic left according to which there are no standards on certain issues and an incessant and arbitrary ratcheting of them on others. What makes a speaker unsavory is shifting and unpredictable. The range of what is either beyond the pale or within it are each, like the universe, expanding.

Moreover, especially given the profession in which they are engaged, the academics assailing Yoo in fact sadly struggle to draw distinctions. Corey Robin, author of a much cited letter opposing Yoo’s appearances at APSA, opens with the obligatory Nazi analogy. He appears to have a quick trigger on these—see here, here, here and here, for example. Instances of even acute immorality are not comparable to and do not inexorably lead to systematic genocide, and slippery-slope analogies reside on, well, a slippery slope that can easily diminish and relativize what lies at their bottom.

Robin implies a standard according to which, if followed to its conclusion, few who have sullied themselves in statecraft, none of whom emerge with clean consciences or hands, could legitimately share company with scholars. He says Yoo’s “speech acts” as a public official helped to bring about “the torture regime of that era.” What, then, of Harold Koh, who supported the legality of the Obama administration’s widespread use of targeted drone killings? Or of Obama himself?

This may not be a problem for Robin, who appears to see no difference between Bush and Trump (again, distinctions). He told the Chronicle of Higher Education that Yoo’s contribution to “norm erosion” paved the way for Trump. (No word on what happened between the 43rd and 45th presidents.)

Part of the issue is the cruelly sterile language of Yoo’s torture memos—the references to “scalding water,” “corrosive acid” and the like—which arose not from a sadistic imagination but rather from the law he was analyzing. That is precisely the dilemma. Put otherwise, the problem with Yoo’s memos is not that that the policy was illegal but that it was so antiseptically steeped in law rather than exception.

The confusion of exceptions and rules is inherently given to extremes: That a president may have authority in an extraordinary situation, it must be preserved for him in all situations. Burke observed as much of the revolutionary French Assembly. “Their idea of their powers is always taken at the utmost stretch of legislative competency, and their examples for common cases, from the exceptions of the most urgent necessity.”

This is the stuff of ticking-bomb scenarios taken from the breathless teleplays of 24, and the flaw in the thinking is both that it nearly never happens and that if it does, there is almost no one who—granting the academic premises that a nuclear bombing is ticking in Times Square, that one is certain the interrogation subject has the necessary information, and that harsh methods would extract it—would not engage in torture. Yet this is an instance of exception, not law, and to make that extraordinary instance the normal rule is to engrave an invitation for abuse.

The question APSA faced was whether the contrary of this was an immoral belief, and not merely this, but an illegitimate one. If we are going to play the slippery-slope game, then, let’s play: What differentiates the protest against Yoo from a future protest against, say, an opponent of transgender ideology (opposition to which one paper presented to APSA associated with white supremacy, certainly an illegitimate view)? Can a distinction in kind be drawn? If it is objective morality, can we then assume that morality is fixed and predictable? If so, can the left save its own ideological commitments if the lens is reversed and proponents of natural law oppose presentations of papers such as the ample number on transgenderism as a threat to social survival?

One doubts. But be certain of this: This fusion of the personal, the political and the scholarly will not turn out well—for anyone.

Reader Discussion

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on September 05, 2017 at 11:22:49 am

Perhaps, in all these "protests" and "participations," what we are observing are the quests for **significance.**

We might consider the motivating force, of individual "need" or "desire" to have a sense that one's existence has significance.

That does not **require** "public" significance, so much as an internal sense of action that gives existence a desired meaning - even if only for some brief period.

It is possible that nowhere, other than in something like the combat actions of war can a clear understanding be gained that being expendable, as one observes the distribution of death to hundreds of others, or being useful constitutes significance.

There are too many empty lives, lives without sufficient significance . Academia is not exempt.

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R Richard Schweitzer
on September 05, 2017 at 12:25:11 pm

To argue for the right, Weiner extols Willmoore Kendall, who seems to argue for the Word, as in the Bible. Kendall exposes himself to the error he, I think erroneously, claims Socrates made: extolling personal revelation rather than the-objective-truth. In other words, claiming to have the god’s authority merely because the existence of the god has not been disproved.

Quoting Kendall, “The Liberal proclaims Truth to be his highest value. Press him, however, about his commitment to Truth, and you will find that it is a commitment not to Truth as, say, Milton would have understood that term, but rather to Truth as a shorthand expression for what the Liberal supposes to be the process by which Truth is arrived at and to a certain view of the history of that process. The moment never comes, according to the Liberal, when man can pause in his search for Truth and say, with any confidence: “This truth I know to be valid, and beyond possible revision in the light of the new discoveries of tomorrow or the day after.”

The right is in the same error as the left. Scholars take for granted such nonsense as capitalizing “Truth” and then claiming it is subject to right opinion versus left opinion and that one has the higher ground based on a personal revelation --- whether pre-historical, ancient or modern. Scholars pretend that "natural law" is the weaker alternative to revelation. They avoid the-objective-truth, most of which is undiscovered but some is understood. They claim to be correct and that voices in opposition are dissidents.

I think Socrates died to uphold the rule of law even when law-enforcement errs. Further, I think that when he spoke of the god, he was citing the good, but using the language of his accuser, Meletus, as well as the court of judgement.

Kendall asserts that Athen’s civilization was a way of life --- a closed question. He says a civilization facing a radical has three options: silence the radical, change the morality, or “tolerate” the radical. Using devices well established by scholars, Kendall ignores the fourth option: collaborating for civic morality based on the-objective-truth rather than conflicting for dominant opinion by which to establish civility, whether as arbitrary law or social manners. “Civic” refers to people who collaborate mutual, comprehensive safety and security during every decade of their lives.

By agreeing to collaborate using the-objective-truth, the right and the left can establish comprehensive safety and security, or civic morality, but which dissidents who cause actual harm may be constrained by the rule of law. These principles are tacitly stated in the purpose and goals of the preamble to the constitution for the USA, established on June 21, 1788.

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Phil Beaver
on September 05, 2017 at 13:27:06 pm

John Yoo belongs in prison and most certainly, not on the federal bench. But what do we do to visit justice upon him?

A sudden and catastrophic case of lead poisoning? Lacks a certain elegance. As Nietzsche pointed out, when one hunts monsters, one must take care not to become one.

Shunning is an effective compromise. The protestors are saying that he does not belong in society, and that anything he might have to say will be ignored. After all, no one would be listening to him if he were in the prison cell he has earned.

To those who would complain that he has not been convicted, l would counter that our system is so hopelessly corrupt that some men are above the law and will never be tried for their crimes and as such, are not entitled to the normal presumption of innocence. Hillary Clinton, Clarence Thomas (knowingly filing fraudulent ElGA forms), and Bradley Schlozman (violations of the Hatch Act) fall within this class, which is remarkably non-partisan.

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LawDog
on September 05, 2017 at 14:10:11 pm

As for the protesters, perhaps, they should recall another of Ole Freddie Nietzsche's aphorisms"

When one stares into the void, be careful that the void does not stare back.

As R. Richard says above, this lack of significance may indeed be the experiential void and protestations to the contrary may very well be the void bemusedly staring back.

Dawg: A personal request if i may. Can you steer me to a concise yet comprehensive piece of info on "gifting" to family members. Would appreciate?

seeya
gabe

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gabe
on September 05, 2017 at 14:54:34 pm

GW: "Indeed, the case is better that other battles, such as the astonishingly rapid demolition of gender norms that stretch unto the origins of human memory, pertain to ways of life and social survival, yet the Left would almost certainly deny that tradition is a legitimate basis for restricting speech in those areas."

Religious bugnuttery, trying desperately to masquerade as serious scholarship. You can speak, and l can laugh. People will continue making babies. Society will continue. But as long as you haven't been a willing party to war crimes, l have no reason to shun you.

GK: "Yoo ... demands both a reckoning from serious thinkers and the charitable hearing due from those who were not charged with high responsibility in the fog of post-9/11 war."

That dog doesn"t even deserve to be let out of his kennel. The only people who would defend pond scum like Yoo hoarded duct tape after 9/11. Yoo took his bribe for being a good soldier in the Bush Family Crime Syndicate™ and should have the decency to just go away.

GK: "Put otherwise, the problem with Yoo’s memos is not that that the policy was illegal but that it was so antiseptically steeped in law rather than exception."

The only problem was the conclusion. The CAT is an integral part of domestic law.

GK: "Robin implies a standard according to which, if followed to its conclusion, few who have sullied themselves in statecraft, none of whom emerge with clean consciences or hands, could legitimately share company with scholars. He says Yoo’s “speech acts” as a public official helped to bring about “the torture regime of that era.” What, then, of Harold Koh, who supported the legality of the Obama administration’s widespread use of targeted drone killings? Or of Obama himself?"

l can't make a GF argument that the extrajudicial killing of US citizens via drone is lawful, and won't try. The same standard must apply to all. We should send Shrub, Darth Cheney, and the Kenyan to The Hague to stand trial.

GK: "Yet there is a perverse moral relativism on the academic left."

Strip away the clutter, and this is what all the fuss is really all about.

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LawDog
on September 05, 2017 at 15:01:22 pm

Not aware of one; you are best-advised to speak w/ a good tax lawyer who does estate plans exclusively. Estate taxes aren't a big issue any more, but planning for incapacity is essential. lMHO, gifting should only be done in the context of a larger estate plan. Too many variables for one size to fit all.

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LawDog
on September 05, 2017 at 15:06:34 pm

"The **protestors** are saying that he does not belong in society"

Still, the point remains; what motivates them say this is so; and to "protest" in these ways?

AND - are they assuming "Society," this social order, is THEIRS in which to determine the qualifications fro membership - CONFORMITY?

Conformity with what; with whose thinking or actions?

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R Richard Schweitzer
on September 05, 2017 at 15:38:15 pm

And perhaps not. Whereas l would have been content with not giving Yoo the time of day, protest has always had intrinsic merit. lt's like writing a letter to your ConMan: registering your voice adds to the conversation.

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LawDog
on September 05, 2017 at 16:50:00 pm

"It was a very competitive set of applications, but in the end we went with the guy who assaulted a reporter." ~Harvard http://www.thecrimson.com/article/2017/9/6/lewandowski-IOP/

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LawDog
on September 05, 2017 at 17:18:42 pm

RR: "what motivates them say this is so; and to “protest” in these ways?"

Perhaps a sense of morality. The case against Yoo is not a difficult one to make, and it is far better than perforating him.

l have had friends disown me on account of my position on immigration. Why isn't that their right?

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LawDog
on September 05, 2017 at 17:31:36 pm

Ok, thx - makes sense and serves as a reminder to a dolt like me!

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gabe
on September 05, 2017 at 17:42:15 pm

Dawg:

You DO have a point! I suspect that much of the opposition to the modern form of "sending one to Coventry" arises from the fact that both the media AND the modern day *Robber Barrons*, i.e., Google, Amazon and Mozilla (Ok - also that knucklehead at Apple) are complicit in the "shunning." Yet, there is a putative preference in this part of the world for "free speech" (whatever that means nowadays), freedom of conscience, etc. "Coventry" was typically reserved for REAL outliers, traitors, "lolligaggers" during the war and so on.

Funny thing is that it would appear that one is no longer permitted EVEN the possibility of making a horse' arse of oneself - the *dialogue* is extinguished before it is begun.

And, oh, BTW, I WON'T disown you on immigration - only for a pronounced hostility to reserved State powers (i.e., police powers). -Ha!

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gabe
on September 05, 2017 at 22:58:39 pm

There is a difference in avoidance of personal association and attempting to exclude others from participation in the social order.

"a sense of morality," here would seem to be a sense that there is a singular concept of how things "ought to be," how *all* "right-minded" people should think and "reason."

Such conformity is essential to collectivity - if that is to be an objective of what has been our social order.

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R Richard Schweitzer
on September 06, 2017 at 09:11:41 am

Furthermore, 234 years after General George Washington spoke about what it takes for a nation to survive, the USA, strains for comprehensive safety and security. A significant faction wants to impose factional Christianity on a people who respond to the-objective-truth. See WSJ today, Page A4, “Poll Shows America’s Divisions Growing,” where the first comment is about church attendance. The father of our country had a better vision for “social order,” but the principal author of the First Amendment, James Madison helped spoil it so far.

Here, from http://loc.gov/teachers/classroommaterials/presentationsandactivities/presentations/timeline/amrev/peace/circular.html, are Washington’s June 8, 1783 words, directed to the people as “your Excellency”:

“With this conviction of the importance of the present Crisis, silence in me would be a crime; I will therefore speak to your Excellency, the language of freedom and of sincerity, without disguise; I am aware, however, that those who differ from me in political sentiment, may perhaps remark, I am stepping out of the proper line of my duty, and they may possibly ascribe to arrogance or ostentation, what I know is alone the result of the purest intention, but the rectitude of my own heart, which disdains such unworthy motives, the part I have hitherto acted in life, the determination I have formed, of not taking any share in public business hereafter, the ardent desire I feel, and shall continue to manifest, of quietly enjoying in private life, after all the toils of War, the benefits of a wise and liberal Government, will, I flatter myself, sooner or later convince my Countrymen, that I could have no sinister views in delivering with so little reserve, the opinions contained in this Address.
There are four things, which I humbly conceive, are essential to the well being, I may even venture to say, to the existence of the United States as an Independent Power:
1st. An indissoluble Union of the States under one Federal Head.
2dly. A Sacred regard to Public Justice.
3dly. The adoption of a proper Peace Establishment, and
4thly. The prevalence of that pacific and friendly Disposition, among the People of the United States, which will induce them to forget their local prejudices and policies, to make those mutual concessions which are requisite to the general prosperity, and in some instances, to sacrifice their individual advantages to the interest of the Community.
These are the pillars on which the glorious Fabrick of our Independency and National Character must be supported; Liberty is the Basis, and whoever would dare to sap the foundation, or overturn the Structure, under whatever specious pretexts he may attempt it, will merit the bitterest execration, and the severest punishment which can be inflicted by his injured Country.”
Washington, a privately religious man, did not include theism in his 1783 four pillars.

However, observe, at founders.archives.gov/documents/Madison/01-08-02-0163, James Madison’s boldness for deism and against Christianity on June 20, 1785:
“Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.
Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. “

If we take all of Madison’s deistic expressions to represent reality, or physics and psychology, or the facts, the statement is civic rather than theistic and thus permissible for the people.

As long as the right remains bemused by theism as a public issue rather than private interest and attempts to impose theism on the-objective-truth respecting civic morality, the USA will remain misdirected and unable to pursue the noble, human purpose and goals stated in the preamble to the constitution for the USA. It reflects George Washington’s “four pillars” of 1783.

We the People of the United States, by collaborating to discover and use the-objective-truth can establish and cultivate a future founded on comprehensive safety and security in every decade of each person’s life now and unto posterity. Essential reform can start in this forum.

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phil beaver
on September 06, 2017 at 10:22:19 am

l am on record in concurrence wrt your position on morality.

We shun pedophiles; why not war criminals? ls there no limiting principle on that slippery slope? Freedom of speech v. freedom of association.

Not sure there is a comfortable answer. The people have a right to shun; whether they should is not entirely clear.

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LawDog
on September 06, 2017 at 10:33:24 am

Blame it on Locke, Hobbes, and James Madison. A right is deemed to be retained unless and until it is ceded. The police and commerce powers only concerns those rights which were ceded. And there is a process by which this is determined.

lt is not my fault that COTUS gets in the way of the "We HATES abortion! HATES it, My Precious! Gollum! Gollum!" crowd.

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LawDog

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