Flip That Argument
Larry Solum’s soon-to-be classic deconstruction of the “It Takes a Theory To Beat a Theory” maxim is a must read. Generally, the Lexicon is an invaluable resource for first-years (and others) seeking a foothold into enormous, barnacled, debates that you will often hear boiled down to a few pithy words.
Indeterminacy - and its pith-summary, “all arguments are equally good,” is a good example. The power move in the Socratic classroom is to ask a student who has committed to a particular argument for a few minutes (or more) to “flip it,” i.e., assume the opposite position based on the same facts. This facility is obviously healthy for a practicing lawyer, but it sure is irritating elsewhere. People might confuse intellectually dexterity with hypocrisy. Or, worse, incoherence.
This Editorial, with all of its condescension and self-important open-mindedness to administration law-breaking, illustrates a common character flaw among our political and journalistic elites. In their world, the way you should how show smart and thoughtful and serious you are is to see two or more sides to everything, to treat every argument (especially from the Government) seriously and respectfully and be open to it because your great intellect and non-partisan fair-mindedness allows you to avoid the shrill, definitive conclusions in which the emotional and partisan masses traffic.
. . . But not everything has two or more sides. Some issues are complicated, but some are not. And some dangers are profound and grave enough that putting a stop to them is infinitely more important than engaging in fun, intellectual games designed to show how serious and studious and intellectually dexterous one is. Sometimes, the “destination” matters more than the soul-searching, intellectually impressive “journey.” Yes, sure, it is true that the judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out. But that does not undermine in any way the fact that this President has been systematically breaking the law for no reason other than he thinks that he can, and that judge’s rejection of that belief is quite eloquent and powerful. Most importantly of all, it is indisputably correct.
I think that Greenwald’s position marks out a clear fault-line between the political and the legal blogospheres. The legal blogosphere, more or less, reflects the ideology of law schools. That ideology assumes that legal issues almost always approach equipoise when the relevant policy and legal considerations are considered. In one sense, there is no greater sin in the Socratic legal world than righteousness.
Just a reminder to new students that when your professors start to flip you this week, they’re actually breaking down deeply held moral intuitions that you might have wanted to hold on to. Good luck!