heterodox: the blog
How We Fought Each Other at Michigan Law
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 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.
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.
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.
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