How We Fought Each Other at Michigan Law - Heterodox Academy | Heterodox Academy

  

Category:  Op/Ed

Via:  steve-ott  •  2 weeks ago  •  20 comments

By:   Andrew Koppelman, Ilya Shapiro (Heterodox Academy)

How We Fought Each Other at Michigan Law - Heterodox Academy | Heterodox Academy
Andrew Koppelman and Ilya Shapiro: Two law professors with opposing views on most constitutional issues show how, especially in this polarized age, it's important to engage and debate rather than shut down and ruin the lives of people with whom we have disagreements.

The problem goes far beyond academic freedom or speech on campus, worrying as developments in those areas are for the next generation — especially young lawyers, who’ll face much more challenging situations than speakers who offend them. It’s even more important to have a national reckoning about our apparent inability to discuss controversial issues without deplatforming those with whom we disagree.


S E E D E D   C O N T E N T



How We Fought Each Other at Michigan Law


Andrew Koppelman, Ilya ShapiroMay 11, 2022

Two law professors with opposing views on most constitutional issues show how, especially in this polarized age, it's important to engage and debate rather than shut down and ruin the lives of people with whom we have disagreements.

From left to right: Ilya Shapiro and Andrew Koppelman

The two of us recently denounced each other's views at the University of Michigan Law School. We didn't try to silence each other. We were both grateful that the other forthrightly presented ideas about constitutional law that the other regards as horribly wrong. We are in full agreement, however, in saying that this is how disagreement should be done.

Koppelman is a left-wing law professor at Northwestern who has written in defense of gay rights (notably defending the Bostock decision) and abortion. His newest book, forthcoming in October, is an attack on contemporary libertarianism, which he claims has been corrupted by delusion and greed.

Shapiro is one of the libertarians Koppelman is attacking. He was until recently a vice president of the Cato Institute and is now the executive director of the Georgetown Center for the Constitution (presently on leave; more on that anon). His newest book, coming out in paperback in July, argues that our dysfunctional judicial-confirmation process is caused by the judiciary's unwillingness to limit federal power — an error cheered by liberals like Koppelman.

As we'll elaborate below, we are philosophically opposed on a number of fraught issues, but find tremendous value in openly engaging with each other about them.

Polarized Times


We live in polarized times. The left and the right seem to live in alternate realities based on different sets of facts, let alone disagreeing on public policies or cultural preferences. The COVID-19 pandemic accelerated that division, isolating us physically and creating very different lives depending on which geographic and social media bubbles Americans inhabit.

And equally troubling as that separation is the battle within both the left and the right. The liberal left these days is constantly colliding with, and trying to make its case against, the illiberal left. The (classical) liberal right is likewise doing battle with the post-liberal right. We both have been pursuing strategies of internal critique: Koppelman has written how the illiberal left undermines the left's admirable goals, while Shapiro has explained how populist "common good" conservatism threatens the constitutional order that originalism is helping establish.

Neither of these arguments, between and within left and right, will resolve in ways that are healthy for the country if nobody listens to one another or, even worse, adjudges the other side's views as simply beyond the pale for tolerable discourse. The problem is particularly acute in academia, where we've gotten to a place where, for example, questioning affirmative action or abortion is outside the Overton window (the acceptable range of policy views).

But this problem isn't limited to ivory towers and leafy quads. The trend of canceling speakers rather than challenging them also represents the loss of grace in our culture more broadly, the desire to ascribe malign motives to one's political enemies and an unwillingness to think of them as merely wrong rather than evil.

The Incident: Canceling Shapiro


One of us (Shapiro) got an up-close-and-personal view of this dynamic — which ultimately led to our debate and an expansion of the national discourse about free speech — when he took to Twitter to criticize President Biden's Supreme Court selection criteria. He argued that the chief judge of the D.C. Circuit, Sri Srinivasan, was the best choice, meaning that everyone else was less qualified, so if Biden kept to his race- and gender-based restriction, he would pick what Shapiro inartfully called a "lesser black woman." Shapiro apologized for his poor choice of words but maintains that Biden should've considered "all possible nominees," as 76% of Americans did in an ABC poll. Regardless, Georgetown University suspended him pending an investigation into whether his comments violated its anti-discrimination policy.

While Shapiro can't comment on that investigation because, three months later, it's still open, Koppelman considers Georgetown to be engaged in a cynical process. The facts are undisputed, and the university's rules are clear: Regardless of whether you think Shapiro is racist or misogynist — unlikely given that Srinivasan is Indian American and that Shapiro has praised the African American Janice Rogers Brown, among other female and racial-minority judges — his tweet is protected by Georgetown's academic freedom policies.

Yet the canceling wasn't done: In early March, Shapiro was shouted down by a mob when he tried to speak at University of California Hastings College of Law. The following week, a similar thing happened at Yale, ironically over a panel bringing together lawyers from the left and right who agreed on the importance of free speech. Later that month, another disruption happened at the University of Michigan during a debate over SB 8, Texas' heartbeat bill.

The Federalist Society chapter at the University of Michigan Law School decided to address this worrying trend. Before Twittergate, it had already invited Shapiro to speak about the politics of Supreme Court nominations. Now it shifted gears, changing the subject to campus speech and inviting Koppelman to be a counterweight.

What We Said


We both used the occasion to explain why we're happy to debate people with whom we disagree, often vehemently. Your co-authors here actually like each other personally — and agree on some issues, like same-sex marriage — even if we think the other person's general perspective is dangerous.

Koppelman said:

I don't hate Ilya, but I hate a lot of what he stands for. If you agree with me that his views are awful, then you ought to be glad that he's here, and you should listen carefully to what he has to say. Not because of the abstract value of freedom of speech, but because paying attention will help you fight him.

The "lesser black woman" tweet isn't even the worst thing Ilya ever wrote. Like the Cato Institute, for which he has worked, he embraces an extreme libertarianism that aims to narrowly constrict state power, sometimes at the cost of human lives. He has consistently opposed Obamacare, to the point of supporting the preposterous California v. Texas challenge to it. He applauded the Supreme Court's gutting of voting rights in Shelby County v. Holder.

In NFIB v. OSHA, decided in January, the court barred the Occupational Safety and Health Administration from protecting workers from COVID, endangering millions and probably killing thousands. Ilya advocated for that result, and so can take some of the credit, or blame. He rejects the post-New Deal understanding of the commerce power. If that's right, then OSHA itself is unconstitutional. That would certainly mean a lot more people killed and injured in the workplace.

All this is a lot worse than an insulting tweet.

There is an unfortunate tendency on the left to regard racism, sexism, and heterosexism as the core of human evil. But if you're concerned about the people on the bottom, those who are being screwed by the status quo — and that's surely what defines the political left — then you need an accurate map of what is screwing them. Racism is one of many malign forces in the world. If you mean to fight the power, you need to see what the power is.

I object to the illiberal left on behalf of the liberal left. I happen to think that freedom of speech is valuable, but now I want to speak to those who don't care at all about free speech. To you I want to say that even if you don't see any intrinsic value in free discourse, you still ought to see that it is an indispensable instrumental means to what you do care about. Law students on the left who cannot bear to expose themselves to arguments that they hate will not know how to answer those arguments. When they go out in practice and advocate on behalf of what they care about, they will lose. That would be bad. I was one of the lawyers who persuaded Neil Gorsuch to declare in the Bostock case that the Civil Rights Act of 1964 protects LGBT people. We did it by understanding the framework within which he approaches law and persuading him that it demanded that result. You have to choose between staying in your comfort zone and being an effective political actor. An illiberal left is a weak left.

Shapiro didn't take that lying down. After prepared remarks on the importance of civil discourse that he's since published elsewhere, he accepted Koppelman's descriptions of his work with pleasure — "guilty as charged" — if not the characterization of it as extreme or costing lives. But Koppelman was out to lunch, he asserted, because the most basic issue in the OSHA mandate case, as in the constitutional challenge to Obamacare a decade ago on which Shapiro made his professional name, is "the scope of federal power." Shapiro rejects the post-New Deal understanding of Congress' authority to regulate interstate commerce and criticizes progressives like Koppelman for believing that there are effectively no limits on federal power. He recognizes that progressives see constitutional rights as limiting what government can do, but sees the left's jurisprudential warping as having created an Animal Farm theory of interpretation where some rights are more equal than others. While he generally agrees with Justice Gorsuch's principled textualist jurisprudence, he has criticized the Bostock decision as being too literalist. Shapiro assailed progressives for having upended the rule of law in favor of a constitutionally untethered pursuit of social justice.

We didn't scream at each other. Each of us listened to what the other had to say and responded to it without assuming intent to harm or insult. We both competed intensely to persuade the audience that we were more reasonable than the other guy.

As it turned out, the Michigan event was peaceful and orderly. But there will be more disruptions. Those expressing conservative views are more often targeted, but it happens to those on the left too, like Whoopi Goldberg — who was ignorant about the Holocaust, not anti-Semitic. Even worse, it happens to regular people whose meager donations to politically incorrect causes get them doxed, boycotted, fired, or, in Canada, frozen out of their bank accounts.

Beyond Academic Freedom


This cancel culture is easy to diagnose but hard to remedy. Too many people have lost sight of the golden rule of treating others as they want to be treated. Although often ascribed to the Bible, that principle predates Christianity and indeed needs not be tied to any faith. Still, as American society has secularized, politics has replaced religion to fill the spiritual needs that humans have had since time immemorial. In that context, it's easy to see one's political opponents as heretics — and then of course their sacrilege isn't worth hearing.

Trust our experience when we say that whatever your political leanings, you need to listen to your opponents — and especially the best and strongest expositions of their positions. Those are the arguments that will persuade the Supreme Court and the court of public opinion.

And it's not enough to read opposing writings, whichever one of us they align with. There's no substitute for having your enemies right there in front of you, making their arguments. Explaining why they're wrong about so much isn't light work, nor is letting them point out flaws in your own positions. It's a skill, and like any other skill, you get better at it by practicing. We're here to help you.

The problem goes far beyond academic freedom or speech on campus, worrying as developments in those areas are for the next generation — especially young lawyers, who'll face much more challenging situations than speakers who offend them. It's even more important to have a national reckoning about our apparent inability to discuss controversial issues without deplatforming those with whom we disagree.

We're willing to go anywhere to debate constitutional issues while demonstrating the importance of having those debates. But it'll take more than professorial op-eds and speaking tours to get our nation back to a place where we can disagree without wanting to ruin the lives of people with whom we have those disagreements. It'll take real courage from political leaders and cultural influencers to disrupt the current toxic moment.

  • Andrew Koppelman

    Andrew Koppelman teaches law at Northwestern University. He has written more than 100 scholarly articles and eight books, most recently Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed, forthcoming from St. Martin's Press.

    Articles by this author
  • Ilya Shapiro

    Ilya Shapiro, author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, is on leave from his position as senior lecturer and executive director of Georgetown's Center for the Constitution.

    Articles by this author

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jrDiscussion - desc
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Steve Ott
Professor Quiet
1  seeder  Steve Ott    2 weeks ago

I'll read anything by either one of these guys. I admire their reasoning skills.

Sometimes I agree with one or the other, sometimes both or neither. (Yeah, I know, kinda weird, but still a human thing, holding two opposing views. Makes for restless nights.)

Sometimes I let the feels get in the way of the thinks. Been having that problem for 67 years now.

Anyway, I like dialogue. I don't like dismissive replies.

 
 
 
devangelical
Professor Principal
1.1  devangelical  replied to  Steve Ott @1    2 weeks ago
I don't like dismissive replies.

but we're still friends tho, right? I really only do the dismissive stuff to people with zero critical thinking skills.

 
 
 
Steve Ott
Professor Quiet
1.1.1  seeder  Steve Ott  replied to  devangelical @1.1    2 weeks ago

Of course. I don't have to like your answer to like you.

Irreverence may take you far in my book.

 
 
 
devangelical
Professor Principal
1.1.2  devangelical  replied to  Steve Ott @1.1.1    2 weeks ago

I reserve my patience for fishing.

 
 
 
Drinker of the Wry
Freshman Expert
1.2  Drinker of the Wry  replied to  Steve Ott @1    2 weeks ago

Good seed Steve.  I’ll try harder to follow their example although some comments here will make that very challenging for me.  Maybe I can grow into it.

 
 
 
Steve Ott
Professor Quiet
1.2.1  seeder  Steve Ott  replied to  Drinker of the Wry @1.2    2 weeks ago
some comments here will make that very challenging

Indeed they do. Staying rational is not always easy. Thinking is hard work.

 
 
 
devangelical
Professor Principal
1.2.2  devangelical  replied to  Steve Ott @1.2.1    2 weeks ago
Thinking is hard work.

apparently there's a lot of lazy people.

 
 
 
Drinker of the Wry
Freshman Expert
1.2.3  Drinker of the Wry  replied to  devangelical @1.2.2    2 weeks ago

Indeed, and for some, no matter how hard they work, they can’t think - ops.

 
 
 
JohnRussell
Professor Principal
2  JohnRussell    2 weeks ago

The seed explains an academic argument. Of course it is better to consider both sides of an issue.

Unfortunately , today, we dont have two legitimate sides on many issues. And, the people who are ready and willing to carry on these academic discussions dont have any power to effect events. 

The country is in a crisis, and I'm not sure academic discussions will get us past it. 

 
 
 
Drinker of the Wry
Freshman Expert
2.1  Drinker of the Wry  replied to  JohnRussell @2    2 weeks ago
And, the people who are ready and willing to carry on these academic discussions dont have any power to effect events. 

That’s why we avoid academic discussions on NT.

and I'm not sure academic discussions will get us past it.

Exactly, but at least we are entertained here.

 
 
 
GregTx
Junior Participates
2.1.1  GregTx  replied to  Drinker of the Wry @2.1    2 weeks ago
Exactly, but at least we are entertained here.

Indubitably. 

 
 
 
Steve Ott
Professor Quiet
2.2  seeder  Steve Ott  replied to  JohnRussell @2    2 weeks ago

But why do people believe what they believe? Immediately dismissing the other's argument as non-legitimate will definitely stop any discussion in its tracks and will get no further.

In my mind at least, all discussions are, in some sense, academic. You don't have to agree to what the other is espousing, just try to understand why they believe what they believe and then you can work from there.

I don't always agree with everything you say, but I let you say it. I don't simply dismiss you out of hand because you say it. I think you may have a legitimate argument, but the way you state it is sometimes offensive and dismissive in my view.

So, you believe what you believe, and I presume you have good and sufficient reasons for so believing. Can you articulate those reasons?

If you can't articulate the reasons, then I can only come to the conclusion that your thinking is somewhat muddled.

I have always been of the belief that one can only win people over to a particular viewpoint one at a time.

 
 
 
JohnRussell
Professor Principal
2.2.1  JohnRussell  replied to  Steve Ott @2.2    2 weeks ago

We have about a third of the population that believes wholeheartedly in conspiracy theories related to politics, racial issues, elections, medicine, and other topics. 

I dont give much credence to their arguments and dont consider them to be legitimate purveyors of a worthy point of view. 

And it goes beyond just conspiracy theories. We have a large percentage of the public that believe and regurgitate misinformation and well, lies. 

I assume you dont want to engage such people in discussions where they are given credence. 

 
 
 
Steve Ott
Professor Quiet
2.2.2  seeder  Steve Ott  replied to  JohnRussell @2.2.1    2 weeks ago
We have about a third of the population that believes wholeheartedly in conspiracy theories

I understand that. It is very personal to me My own brother believes those things. Why? The best he can tell me is that he believes what his god tells him. (I'll not go into family history here. But it has much to do with is beliefs.) As you can imagine, I have great difficulties with that reply.

Most of my family, whom I only recently reconnected with on FB, I have not seen for 50 years or more. They do not understand me, although I all to readily understand them. They very rarely engage with me anymore, but it hasn't stopped me from explaining my position to them.

I suppose the only way I could give credence to their viewpoint would be from the life when I once held those viewpoints. I do not now, nor are they particularly receptive to my reasons for holding a new viewpoint. I simply point out the inconsistencies. But, at the same time, one must also recognize their own inconsistencies.

 
 
 
Drinker of the Wry
Freshman Expert
2.2.3  Drinker of the Wry  replied to  JohnRussell @2.2.1    2 weeks ago
I dont give much credence to their arguments and dont consider them to be legitimate purveyors of a worthy point of view. 

Exactly,  it’s not like when the white working class was reliably Dem, now no reason to pay attention.

 
 
 
mocowgirl
Professor Quiet
2.2.4  mocowgirl  replied to  Steve Ott @2.2.2    2 weeks ago
I suppose the only way I could give credence to their viewpoint would be from the life when I once held those viewpoints. I do not now, nor are they particularly receptive to my reasons for holding a new viewpoint. I simply point out the inconsistencies. But, at the same time, one must also recognize their own inconsistencies

My life is very similar to how you describe yours.

I am an introvert.  Interacting with people can be very tiring for me.  So conversation has be entertaining or informative or I rarely bother.  I have learned more from the people who have disagreed with me because it forced me to research their data and compare it with mine.  I'm not always able to find agreement, but I try to understand what has shaped the other side's worldview if they take time out of their lives to share it with me.  

 
 
 
Steve Ott
Professor Quiet
2.2.5  seeder  Steve Ott  replied to  mocowgirl @2.2.4    2 weeks ago
if they take time out of their lives to share it with me. 

If, being the operative word there. Most of my family simply speaks over me to the others saying, we should pray for him.

 
 
 
mocowgirl
Professor Quiet
2.2.6  mocowgirl  replied to  Steve Ott @2.2.5    2 weeks ago
Most of my family simply speaks over me to the others saying, we should pray for him.

You have my sympathy.  I know what it is like to have one way relationships with family.  Some members, of my family (now deceased thankfully), were excellent multitaskers.  In the 1970s, they gathered to eat, drink, pray and divvy up proceeds from drug dealing while sitting on furniture stolen from a family who had the audacity to leave town over the Thanksgiving holiday.  I was not raised by these people.  I met them when I was 17 years old.  I am now 65.  I still have PTSD despite the fact that I saw them on a very limited basis until most of them died.

I always allow people to pray for me.  It doesn't bother me and I figure I'm doing my part to keep them from annoying someone else.

What I cannot do is attend most funerals and keep a straight face while the preacher drones on and on about how the deceased is singing and dancing joyously in Heaven.  Most of the time, the deceased has had numerous invasive procedures/operations, taken horrendous medications and endured months, if not years, of physical and mental torture to put off "singing and dancing joyously in Heaven".

If it is a Baptist funeral, the deceased won't be dancing unless it is in Hell.  And because it is even impolite for the Baptists to pass sentence on the deceased during the service, they wait until the family is out of earshot after the service to gloat about the deceased getting their due.

I don't miss the hate and hypocrisy of the many Christian sects that I am very well acquainted with.

Because it is illegal to just throw my body on the brush pile (preferably after I am dead), I plan to be cremated with no services.  I am not important enough to the haters for them to waste time to gather to pass judgement on my soul unless someone is footing the bill for food and drink at the festivities.  

 
 
 
squiggy
Sophomore Quiet
3  squiggy    2 weeks ago

One of the great barriers here is 'Who said it', not 'What was said', giving instantly to snark and devolution.

 
 
 
Steve Ott
Professor Quiet
3.1  seeder  Steve Ott  replied to  squiggy @3    2 weeks ago

Yeah, I really hate that shit.

As though the validity of an argument issues forth from the person speaking.

It is the devaluation of humanity.

 
 

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