Financial incentives need to promote responsibility, and the public interest, not the opposite.
The rule of law and the American tradition of government depend on the surrounding civic culture, and that culture is one of capacious liberalism—liberalism in a philosophical, not a partisan sense. It includes a structure built on individual rights (as opposed to group interests), personal responsibility, and freedom of speech.
So, what are the social movements that threaten this culture today? They go by a variety of names. Wokeism and “the successor ideology” are two. At a high level of generality, their dogma goes like this: Some group has been systematically oppressed not only by the government but by society at large. And that oppression is the sole cause of their disparate plight. Antiracism is an example of the structure of this thinking. Its leading publicist and best-selling author, Ibram X. Kendi, has stated: “Racial discrimination is the sole cause of racial disparities in this country and in the world at large.” All that has gone before is tainted, and society should be completely remade to reflect this essential truth.
The Individualist Foundation of the Rule of Law
This kind of ideology poses a serious threat to the rule of law. Let’s begin with the rights-bearing status of the individual. The Declaration of Independence depends on the moral claim that all are created equal and thus individuals are equal before the law. People should not enjoy legal privileges because they are members of a class, such as those the nobility and clergy enjoyed before the rise of liberalism. Moreover, the individual identification under law makes it harder for groups to use politics to oppress other groups. This barrier helps preserve the equality of individuals under the law.
But a social justice movement that focuses on the group rather than the individual inevitably subordinates individual rights. Exhibit A is the rules of sexual-assualt tribunals on campus where the Obama Education Department encouraged universities to take away core protections from the accused, including access to a neutral tribunal and the right to cross examination. To be clear, the impulse to prevent sexual abuse is wholly laudable. But the dogmatic structure of a movement that wants to vindicate women against patriarchy transformed reform into a threat to individual rights.
In addition to the undermining of legal norms, such movements also create distortions in neutral fact-finding. When Michael Brown was killed in Ferguson, for example, the story told was that he was a victim of police racism who was shot with his hands in the air, inspiring the ubiquitous “Hands up, don’t shoot” slogan. It took the Obama Justice Department’s report to show that this story was untrue, exonerating the officer legally, although he has never been cleared in the eyes of the social justice movement. At my law school, the administration, for instance, continues to display a framed photograph, taken at a school demonstration about this incident, of people with their hands in the air. It is imperative to the rule of law and to legal education that facts not be subordinated to an overarching and totalizing social narrative.
Of course, the rule of law needs to be vigilant about violence by the state against all people, including minorities. But it is scrupulous attention to the facts in individual cases that promotes such vigilance while sustaining the law enforcement that protects against private violence.
Personal Responsibility and the Rule of Law
Personal responsibility is also bound up with the rule of law. In part, that’s because people can take responsibility for themselves only when they can plan, and they can plan only when they know the rules of the game. It is also because a government that is large enough to absolve people of individual responsibility is so powerful that the rule of law cannot constrain it.
But the claim that some form of systematic oppression is the cause of all disparities between identity groups undermines this premise. The theory of antiracism as articulated by Kendi is an example. It uses racial identity and claims of systemic oppression to rob individuals of agency: it releases individuals—both the purported victims and the perpetrators—from responsibility. Moreover, Kendi and others have not come close to providing the extraordinary evidence to support the extraordinary claim that all kinds of complex phenomena in a free society have the single cause of systemic discrimination against one group or another.
There is nothing wrong with arguing that specific social practices brought into being by the collective decisions of some individuals are responsible for bad outcomes. That is a program of potentially useful reform to eliminate such practices. But unless that empirical work is done, this new utopian movement thwarts rather than promotes social reforms.
A Free-Exchange Culture and the Rule of Law
A culture of free exchange of ideas and tolerance for dissenting views are also necessary to the rule of law and justice, allowing critique of both current law and future reform. But some of the social movements we see today have no interest in the exchange of ideas because they are dogmatically sure of their own truth. It is hardly an accident that Google engineer James Damore, for instance, was fired when he called attention to plausible reasons other than discrimination that may account for the lower proportion of women in computer science. If one begins with the inconvertible truth that systemic discrimination is the cause of all disparities, the exchange of ideas is unwelcome because the give-and-take that comes with such exchange can lead to an appreciation of complexity rather than simplistic sloganeering.
To be sure, a culture of free exchange is different from the stricter constitutional requirement of the freedom of speech that applies only to the government. But that legal requirement gains support from a culture which tolerates dissent and does not use employment and social ostracism to fence off debate about factual and plausible normative claims.
The Failure of Universities
Universities have historically transmitted the culture of capacious liberalism from one generation to the next. Their core form of liberalism is epistemic—an openness to ideas and argument, even against the consensus, so that the truth about the world can be discovered. Here, too, facts must not be subordinated to an official narrative. Universities have previously faced dangers of epistemic closure because professors today are overwhelmingly of one ideology—left liberal. But only recently have universities’ administrations themselves increased that danger by taking institutional positions. For instance, many schools, like my own law school, have now labelled themselves Antiracist. But antiracism is an encompassing ideology that is not simply a commitment not to discriminate. Indeed, in many versions it requires discrimination and becomes an Orwellian slogan—another way that truth becomes subordinate to the claims of a broad social narrative.
Other universities have required those who want to be hired or promoted to show their commitment to diversity and inclusion as social ideals. These include the University of California, which is prohibited by the First Amendment from discriminating in hiring because of political views. Where are the civil libertarian law professors—previously foot soldiers of capacious liberalism—who object to this political test?
When an educational institution adopts an ideology, certainly one as comprehensive as antiracism, it chills dissenting views and makes the search for truth secondary to the desire that ideas conform to what is considered virtuous. But a virtue-signaling university undermines a large part of its core enterprise—making sound inferences about causes and effects of the world. If elites are trained to view society through a dogma rather than with an openness to sometimes-inconvenient facts, they will make America worse, particularly for non-elites, including those who are minorities. Capacious liberalism is the prerequisite for successful, empirically based social reform—something that is also necessary to the continued flourishing of the rule of law.
A shorter version of these remarks was delivered at the Federalist Society’s National Convention