“Split-the-Difference-ism:” Journalistic Heuristic for Credibility
posted by Frank Pasquale
Having earlier gibed at law profs for irrelevant articles, Adam Liptak tacks back in an article entitled “Liberal Case for Gun Rights Sways Courts.” Pace Pierre Schlag, it appears that scholars are able to influence judges. But it’s the “surprising” positions that are getting traction; “liberal” scholars are at their most effective embracing “conservative” stances:
“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”
The article provides several quotes to support that idea, suggesting a conversion narrative for Levinson, Tribe, and other big names who’ve adopted an “individual rights” view of the Second Amendment.
I suppose those types of “conversions” are newsworthy, in a “man bites dog” sense. But what kind of assumptions underlie them? Are the “liberal” results from the “liberal” law professor just a product of his/her ideology? Is everyone to be assigned some sort of ideological set point and then have their scholarship’s credibility measured by how far it deviates from its author’s partisan idees fixes?
A position like that itself manifests an ideology that I like to call “Split-the-Difference-ism.” It assumes that there is some reasonable middle ground in our political struggles, and if everybody would just give a little, we’d all be better off. Moderation becomes the statesman. When a conservative adopts some liberal position, suddenly the conservative (and the liberal position) gain credibility, independent of the reason for the conversion.
[This debate is] conducted almost exclusively on originalist grounds, even by nonoriginalists such as Judge Reinhardt. While all who criticize the individual rights position on originalist grounds are themselves nonoriginalists, Michael Dorf is a rare writer on the Second Amendment who expressly defends a nonoriginalist approach to the issue.
In other words, rather than hearing how odd it was for these “liberals” to have adopted a “conservative” position (after deep psychomachy, with a heavy heart), I’d have have far preferred to hear from Liptak:
–what was the interpretive methodology Levinson, Tribe, et al. were using in determining the meaning of the Second Amendment?
–is this but one of many methodologies used in constitutional law jurisprudence?
–what are the rival methodologies, and did they inform the nine circuit courts which have endorsed a “collective rights” interpretation of the Second Amendment?
Finally, as Barnett asks, will this even matter? For as he says, “the protection of these rights [would] allow ‘reasonable’ regulation in the same manner as the First Amendment does not rule out reasonable time, place, and manner regulations of speech and assembly.”
The “split the difference” heuristic reminds me of Jon Mermin’s fascinating Debating War and Peace. Mermin argues that public debate over American foreign policy has been fundamentally skewed because “journalists over the past two decades have let the government itself set the terms and boundaries of foreign policy debate in the news.” It’s not the validity or cogency of government positions that allow them to set the parameters of debate; rather, it’s merely the fact they come from the government. If “split the difference”-ism prevails, we can expect much the same status for “converts” to liberal or conservative positions.