u14:59know so so I so I think that you knowthe for the for these populationswhether you’re homeless whether you’re aconvicted person whether you’re amigrant it really doesn’t matter to youwhich of these arguments is going towork what matters to you are this or thetangible effects of embracing one ofthese arguments right that the burdenthat you are experiencing the Muslimtraveler right the burden that you’reexperiencing will somehow be lifted sothe first of the four strategies youcall fair play which is a good Englishconcept and lawyers might call it dueprocess and about that you say that itcan be valuable because it’s lessmorally judgemental than an equalitybased argument because I think you wouldsay that some equality based argumentswhen you rule against somebodythey may think they’re being insultedthey may think you’re wait I’m againstsame-sex marriage and I lose are youcalling me a bigot whereas your Fairplayarguments don’t have that Freight yes Ithink I think that’s right that’s one ofthe sort of compared advantages ofsomething like a fairness argument thisis if you’re if you’re if you’re in aheated argument with somebody over thenotion of equality they’re there acouple reasons why right one is is thatthere’s a kind of structure to the waythese kinds of conversations tend tothere’s a structure of the arguments arekind of a pattern that these these kindsof arguments tend to follow and when Isay about equality arguments is thatthat they tend to fall along this pathright that we often get stuck over thequestion of who is deserving of equalitywe assume that’s there’s someone outthere who doesn’t deserve equality so Ialready talked about felons for examplewhat about someone who is accused ofbeing a terrorist right what aboutsomeone who doesn’t quite look like mewhat if what about someone who doesn’tshare my values rightso we when we talk about a cual we oftenget stuck on this very question and asyou say the other the other part of thisis is that when we say someone hasviolated someone’s equality rightsthat’s a real morally judgmental thingthat we’re saying and and in the in thetravel ban cases we’ve already talkedabout a little bit I think this is oneof the things that that that judgesreally get hung up on is that if westrike the travel ban down on the reasonthat it violates religious freedomaren‘t we saying that President Trump isa religious bigot now it might be truethat many of us think that already allright but for the Supreme Court of theUnited States to say that the presidentis a bigot is also to say or at leaststrongly suggest that millions of peoplewho voted for him might also be bigotsand I think that this is one of thethings that is that is subtly causingpeople on including the Supreme CourtUnited States to not want to confrontthis question very seriously and indeedthey end up ducking this right so whatabout fairnessso I think fairness actually can changethe conversation because it’s not thatfairness questions are non-judgmentalthey’re still judgmental but they’rejudgmental about different things rightthey’re not as judgmental about the whothen we’re just mental about policiesabout practices about institutions rightthis institution is not fair thatinstitutions not fairlet me give you an example in the book Itell a story and it’s a story about a18:32real case that is set in 1930s Jim Crow18:36South18:37and it involves a case called brown18:39versus Mississippi or what we might18:42consider the Forgotten brown case right18:44some civil rights lawyers know Brown18:46very well but most people don’t know18:49this case and what happened was there18:51was a white planter who was found dead18:53in his home and suspicion immediately18:56fell on three or four people who lived19:01in the area and they were all African19:02American and what happened during the19:04investigation was that the sheriff and19:07his deputies rounded up each of these19:10individuals and beat them severely19:13including stringing one of them up a19:14tree to try to get him to confess and he19:19did and in the end the posse did this19:21over the lynch mob did this more than19:23once right and he insisted he was19:26innocent and these practices continued19:29well eventually of course the beatings19:32went on so long that they in fact made19:34confessions and who wouldn’t write to19:36get the beatings to stop and they were19:39prosecuted and they were given the death19:40sentences all of them and when they19:43challenged these death sentences it was19:46in a period of time in which arguments19:49about equality would have had a really19:51hard time prevailing in the courts and19:55one of those reasons is because of a19:57concern that if we take equality19:59arguments too far in the criminal20:02justice system right that we might20:03change the criminal justice system too20:06much but this is one of the practical20:08obstacles to equality in the criminal20:11justice system and20:13that’s what the Mississippi Supreme20:14Court did in this case was to simply say20:17we don’t see any problem here right as20:20long as the procedures in court were20:23fine then we don’t really care how that20:26evidence was gone that decision was a20:28travesty and when that was appealed to20:31the United States Supreme Court I say20:34that the Supreme Court got it right they20:37sense that there was an equality problem20:39here that the that the methods that were20:41used against these poor suspects would20:45not have been used against anybody else20:46right they were not the the kinds of20:48things they did to white suspects for20:49example and they talked about what was20:52at stake and clearly race-based terms20:55they really saw that this was a case of20:58of unequal justice but they simply21:00couldn’t say that at the time all these21:02concerns about embracing equality too21:04far at that time in that system21:07I think prevented them from doing it so21:09what did they do the good news is I21:11think that they did exactly what I21:13suggest in the book is that I treat this21:15as an example of the Supreme Court21:17trying to find some way to do practical21:20quality they embrace the fairness21:22argument and they said okay well we’re21:25not going to worry at the moment about21:27trying to judge these individuals of21:30committing a moral wrong in a deep way21:32but we are going to say that this21:34institution was that this process was21:37flawed from beginning to end and that21:38these individuals were entitled to be21:42treated fairly throughout the court21:44system and to rely on confessions that21:48were gotten through beatings was21:50fundamentally unfair and so from my21:52perspective this was an example of doing21:54the work of equality in a slightly21:55different way so does it do the same21:57work because the Supreme Court is you22:00know Robert does two things it resolves22:02particular disputes and it announces22:05broad legal principles that will apply22:07in lots of cases and had the court ruled22:10on equality ground so we definitely have22:11the broad legal principle I don’t know22:14that this kind of decision on fairness22:16gets you there I think that it doesn’t22:20do exactly the same kind of work it22:22certainly didn’t say these sheriff’s are22:25morally blameworthy22:27in a deep way and we need to cast him22:29out of the community that was going to22:30have to be done by somebody else on the22:33other hand if we had insisted if22:37somebody insisted that they do it22:38overtly through the equal protection22:40clause let’s say they might not have22:42been able to get to five votes right to22:45do it that way and to me that’s a22:47serious problem because one of the22:48things I talk about in the book is that22:50we have to avoid what I call tragic22:53precedence because they’re there there22:55are there’s fighting hard and there’s22:58fighting in a way that leads to a23:00horrible result that ends up23:02demoralizing activists that ends up23:06creating kind of monuments to inequality23:09that can take generations to uproot and23:11we can think of cases like Korematsu we23:14can think of cases like Plessy versus23:15Ferguson as as really good examples of23:18this but one of the things that I think23:20we have to keep in mind as we fight for23:22equality is how do we fight hard but23:25without without kind of falling into23:28that trap where we’re sort of partly23:30responsible for creating a terrible23:33precedent like that do you think your23:35book may be particularly timely in the23:37current environment where the Supreme23:39Court has just lately23:41veered to the right and will not be I23:44would say a particularly hospitable23:46forum for lots of equality arguments I23:49think that’s a kind of way putting Adam23:50I actually put I might put it a little23:52bit darker that that I think that I mean23:55if you’re a progressive I think you look23:57at the Supreme Court and the Supreme23:58Court probably lost for a generation or24:00more right in the sense that the the24:01Supreme Court can’t be expected to be a24:05predictable Ally for a whole number of24:08progressive causes whether that’s the24:12the rights of transgender people or24:15expanding the right of sex equality in24:19other ways I think it’s going to be24:22really hard to expect the Supreme Court24:24to do that in the future so but there’s24:26a good news here I think the good news24:28is a we don’t always have to rely on the24:30Supreme Court we can rely on other24:33courts there’s a lot of really great24:35work that state supreme courts are doing24:37and this is a great opportunity to make24:39both very bold a koala24:41arguments right to those justices in24:44those state courts as well as all the24:46other arguments I talk about fairness24:47avoiding cruelty and so forth24:50and so there’s those opportunities kind24:53of in terms of litigation but there’s24:54also opportunities to make those24:56arguments in you know states and local24:59communities to try to prevent those25:01policies from being enacted in the first25:03place right there’s nothing that25:05prevents us from making these kinds of25:07arguments to other people to mayor’s to25:10governor’s to attorney generals and as I25:13like to tell my students right in some25:15of these places where you’re sort of the25:17most demoralized you know you just have25:20to win a couple of key offices right25:22when the governorship or when the office25:26of the Attorney General those two25:28positions probably have more power than25:30any other position to to block at least25:33the worst kinds of things that can25:35happen I think I want to skip over25:38lightly to additional backup strategies25:40you mention them in passing rationality25:43which is to say courts can look at laws25:46and practices and say this just doesn’t25:49make sense and that that’s a route25:52that’s available barring cruelty you25:56know as the Eighth Amendment does and is25:58normal moral human practice does so26:00those are two other backup strategies26:01but I’m particularly interested in free26:03speech my background is in free speech26:05and there although you say most of these26:08backup strategies are interlocking with26:11equality they’re moving in the same26:12direction I think in speech and you’ve26:15already touched on this there may be26:16some tension right so consider hate26:20speech hate speech is anathema to26:23equality and yet under the US26:26Constitution we protect it how do you26:29reconcile these things in which side do26:31you come down on yeah that’s that’s26:33that’s a great question because it’s a26:34tough question and it’s a tough question26:36because although in the United States26:39we’ve taken one answer which is we have26:43a very very expansive understanding of26:44free speech we protect an individual’s26:48ability espouse all kinds of hateful26:49things up until the point that they26:52cross a line right that they that there26:54actually exhorting some sort of26:55law-breaking and that’s and that’s26:57pretty expansionist right in terms of26:59protecting free speech when we look at27:00what other countries do they’ve looked27:02at what we do and think we’re nuts and27:04they’ve explicitly repudiated what we do27:06so so so it’s not as though the choice27:09that we’ve made as Americans is27:13absolutely the correct choice under all27:15circumstances what do I come down on27:17this I think that that is a really good27:19example where speech can be understood27:22to be in deep tension with quality right27:24because a lot of the things that lead to27:28deep forms of inequality rely on the27:32horrible sort of speech that is allowed27:35to to be expressed right that that27:37that’s how these ideas are communicated27:39and then I kind of find their way into27:42the minds and then the behavior people27:43so there’s no amount of denying that27:45that’s true at the same time we still I27:48think embrace we have a hopeful view in27:52embracing this idea of free speech which27:54is that even though we protect the right27:57of people to espouse these horrible27:58things we don’t think that listeners are28:01robots right we accept that it’s28:04possible we hope people will will hear28:08something that’s crazy and racist and28:11bigoted and choose to say instead you’re28:15racist you’re bigoted I don’t agree with28:18what you’re saying and and and to me28:21this hopefulness that goes along with28:25the this desire to sort of defend the28:29ability of the dignity of the individual28:31in expressing their view whatever that28:33view is right is doing in this broader28:37sense some of the work of equality but28:40as you say it’s not an easy question and28:42do you have some hesitations so these28:44these doctrines we’ve been talking about28:46were built in the 60s and 70s in a28:49different era in the internet internet28:52era and in the Trump era and in the28:56Charlottesville era do we need to28:58rethink any of this I think that29:02there are ways to rethink that question29:05in terms of perhaps what the state can29:07do in terms of perhaps monitoring groups29:10that that because of their past29:13practices merit being watched I think29:16that in Charlottesville for example29:17there are things that the University of29:19Virginia has done that the local29:20community has done in the wake of what29:23happened that are perfectly legitimate29:25for example if you are somebody if29:27you’re a group that has crossed the line29:29and has violated the law while you’re29:31expressing your free speech values it29:34could be that you can get an order that29:37prohibits you from coming back and and29:39and and doing that same thing once again29:42and that’s a strategy that has been29:44pursued I think quite effectively so so29:46in a way then we’re not really punishing29:48somebody for their speech we’re29:50punishing them for their law breaking of29:52their rule breaking after the fact and29:53we’re preventing that same rule breaking29:55in the future I’ve got a couple more29:58questions but I know you guys are gonna29:59have lots of questions for Robert so30:01whenever you feel like it you can line30:03up at that microphone so I want to ask30:06about another situation in which two30:08sets of values may be in tension you all30:10know the masterpiece cake shop case in30:13which a Christian Baker in Colorado30:16refused to make a custom cake for a30:19same-sex marriage saying that would30:21violate his religious principles what’s30:25the right way to think about that30:26tension certainly the Equality value is30:28easy to see that you know people walk30:31into a bakery and would like to get30:32served and don’t like being told that30:34they’re not welcome there because30:35they’re gay but there are lots of people30:38who think the religious liberty value on30:40the other side is meaningful – yeah I I30:42think what I would say about that is30:43that while that situation is often30:46described as one where liberty is pitted30:49against equality it’s actually more30:51complicated than that right that let’s30:54start with the with the couple who’s30:56getting married and wants to get this30:58cake right it’s very important to them30:59it’s also very important that they’re31:01treated equally like other customers31:02there’s a quality on that side but31:05there’s also in some people’s minds31:08speech there’s association they they31:10believe that they have the ability to go31:12out express themselves who they are that31:15that this is also part of the expression31:17of their identity not everybody sees it31:20that way now the courts also see it that31:21way but I think lots lots of regular31:23people and some academics see it that31:25way and on the other side what’s often31:28described merely as a Liberty situation31:30also has equality because the the31:34religious objector their right isn’t31:37just objecting on his or her behalf31:39he’s also objecting on behalf of a31:42community that disagrees and so to the31:45extent that an individual is right of31:48conscience let’s say a right of religion31:50is is respected and it’s possible in31:53entire groups religious beliefs are also31:57deemed kind of worthy of respect okay so32:00so so I think the takeaway here is that32:03you’ve got you’ve got Liberty and your32:06quality on both sides of it now none of32:09this tells us exactly where to draw the32:10line or I personally would prefer to32:12draw a line is where where it respects32:17the ability of local communities let’s32:19say living in Colorado to decide that32:22equality is a very important value for32:25this community right and to enact laws32:28like public accommodations laws and that32:30that is given a kind of primary emphasis32:34and respect and then from there we ask32:39ourselves is there a way to give someone32:42who is an objector the ability to object32:46but without damaging that equality value32:49and so there might be a limited way to32:50do that but if we think there isn’t then32:52my own view is that the Equality values32:55should be given the most respect so the32:57book wasn’t out yet so Justice Kennedy32:59cannot have read it but what do we do33:02now oh I bet he has by now but it wasn’t33:05out then but in a way he employed one of33:09your strategies but maybe not in the33:10direction you would have employed it33:12because he went to the fair play idea he33:15didn’t reach the Equality question he33:17makes a fair play point and says one of33:19the lower tribunals had not given the33:22Baker a fair shake therefore he wins33:24yeah that’s that’s a great example so so33:26and that’s and that just teaches us that33:28there’s33:28there’s there’s no magical formula here33:30right that that if you make one of these33:33other arguments or even if you make the33:36full throated equality argument there’s33:38no there’s no guarantee that anyone is33:40going to agree with us33:42all we can do is do the best we can and33:43use as many tools as we can possibly33:45come up with in order to attack equality33:48in all these different ways so and if33:51there’s one message from the book it’s33:52that let’s turn to some audience33:54questions so I have a two-pronged34:00question one part is do you engage34:04feminist theory in the book or could you34:07anticipate what your rebuttal would be34:10to the kind of obvious feminist critique34:12that equality political equality is the34:14project and if you’re fighting this34:16massive historical system of subjugation34:19if you’re trying to bat it down in other34:22ways it’s kind of this Hydra headed34:24monster and you’re always going to be34:25fighting it in one way or another34:27/ what do you think of intermediate34:30scrutiny under the Equal Protection34:32Clause and is that a good second best to34:36an actual Equal Rights Amendment or is34:39there value in pursuing that amendment34:42as activists are doing now all right34:44tough tough questions out of the gate34:46whew okay maybe maybe I’ll take the I’ll34:49take I’ll take the second one first I34:51I’m pro ara I think that the movement to34:54get the original ura enacted even even34:59though we’ve got this deadline that we35:00got to deal with right is is good that35:04it that it adds something to have35:06something specific and broader about the35:08importance of sex equality can be35:11important in any number of ways I’ve got35:13a piece it’s going to come out in Boston35:14Globe in the next week or so which which35:16talks a little bit about this and and35:19and I and I urge states that haven’t35:21done this to do it and even to imp have35:24an explicit sex equality provision in35:27their state constitutions – that this is35:28a place where activism would be very35:31valuable and what do you get out of it35:33well one thing you can get out of it is35:35it could protect reproductive rights35:37more powerfully the other thing you can35:40get out of it is that35:43the way that courts see issues raised by35:49a transgendered people would be taken35:52more seriously if we had something like35:54that and that’s just the tip of the35:55iceberg so in terms of er a I’m a huge35:59proponent of doing that as much as36:01possible now your first question is as36:04more of a it’s like a strategy question36:08right so and and it’s one that that36:10activists friends of equality are often36:13faced and that’s true today and it’s36:15true back when we were talking about36:17abolitionist trying trying to decide36:19what’s the best way of taking down36:20slavery right and helping slave36:22populations and and that is like if we36:25choose this strategy if we make these36:27investments over here well we won’t have36:30quite as many resources for these other36:32kinds of arguments and are we right36:33siphoning these necessary resources away36:36from these sort of the direct attack36:38let’s say right on the kinds of you know36:41inequality or misogyny or whatever it is36:43that you’re going after and I just think36:46that there’s no way to get away from36:47that that tension right that that though36:49these difficult questions of where do we36:52invest resources and which strategies do36:56we pursue first and which of the backup36:58strategies are always going to be with37:00us from my mind if you care about37:04equality equality the moral argument37:06about clothes is always going to be your37:07lead argument but what this book is37:10arguing is that we also got to think37:13about the back up arguments and that37:14there’ll be these moments where we can’t37:17convince somebody to change37:20philosophically right and actually37:22there’s some science behind this that if37:23if the goal is to change people’s minds37:26in this sort of fundamental37:27philosophical way that there are lots of37:30reasons why that project will never37:32happen or it will take a long time this37:34is where I am is let’s just say it’s37:36gonna take a long time right and so we37:38have to see that arguments about37:40equality in this moral deep moral sense37:42our long term conversations so same sex37:45equality same sex marriage was an37:47example of this but luckily we got there37:51with that one right but along the way we37:53could do other kinds of things37:55to reduce some of the the harms that37:57certain populations face and if we can37:59do that then we ought to be doing both38:01things simultaneously thank you thank38:03you38:05so I I don’t be shy I have questions but38:11yours and yours will be better maybe so38:16doc so a couple that I have a two-part38:19question38:20lots of to prime questions tonight so38:23some of argue that the founding farmers38:25and founding founders did not really38:29trust all the citizens so our democracy38:33is not a pure democracy its38:34representatives Republic so we have some38:36representative they have regular38:37elections kind of like a stopgap if the38:40citizen acting a little bit too crazy38:41alright so if that is the case then how38:47do you then reconcile circumstances38:50where so for example we got past slavery38:54and slaves were freed but then after38:57enslavement stays and instituted laws39:00that if you jaywalk them we’re gonna39:02create this fine that you never can pay39:04back so you were indentured servant for39:06the rest of your life so how do you then39:08reconcile that maybe we have equality39:11and we trust the American people but at39:14the same time the founders didn’t fully39:18trust us my second prong question is39:21witness unconscious bias play into this39:24role of equality you know sometimes I I39:27was heading from the gym today but I39:29decided me get out my gym clothes and39:31clothe my little jacket because I was39:32gonna ask you a question and I wanted to39:34look credible look well so thank you39:35thank you alright so but sometimes39:37unconscious biases if I’m six feet 22539:40pounds if I’m walking up on you you know39:42you might have a unconscious bias so how39:46do we reconcile unconscious biases with39:49equality yeah those are both great39:51questions again maybe I’ll take the last39:53one first I do think there’s a deep39:55connection between unconscious bias and39:58at least discrimination right that that40:01the attitudes that people have that they40:03don’t always fully understand that they40:05have they don’t maybe interrogate can40:07lead them to behave in ways40:09since you’re treating certain kinds of40:10people differently right there is some40:13little bit of recognition of this even40:15though there’s resistance on a lot of a40:16lot of judges to use the term40:18unconscious bias there’s a lot even the40:21Supreme Billy 9 states has talked about40:22stereotypes right sex based stereotypes40:26gender-based stereotypes racial40:29stereotypes and that that they have40:31recognized that there’s a connection40:32between kind of tolerating stereotypes40:35and the kind of bias that can happen and40:37in the book I talk about a few of these40:40examples and you know I think that this40:46is an area where you got to have more40:48than one strategy right that just making40:50us like a straight-ahead moral argument40:53about equality but who deserves a40:54quality isn’t gonna always get us to40:58kind of dealing with that problem one of40:59the things that that I think can is to41:02demand that we interrogate the factual41:06basis for certain kinds of claims like41:08that’s that someone who is a member of a41:12group poses a threat so the travel ban41:15we already sort of mentioned right the41:17deeper claim there is is that if you are41:20Muslim if you come from a Muslim country41:21you are in a group that is inherently41:25threatening this is the same kind of41:27argument that was made during the during41:30world war two as it relates to the41:32internment of japanese-americans that41:33because these Japanese people don’t look41:35like us they have these strange you know41:38cultural practices and wow they even41:42send their kids to foreign language41:43schools right that they’re somehow41:45suspicious right they’re their dessert41:47they’re deserving of differential41:49treatment because they’re scary so this41:52is a kind of an example of I think what41:53you’re what you’re talking about and one41:55of the solutions here one of the one of41:57the things that can work maybe even41:58better sometimes than direct arguments42:00the quality is demanding more about the42:02facts right show us more about what it42:05is that somebody has done or some group42:07has done that really lines up with a a42:12realistic projection of of a42:14forward-looking threat and if you can’t42:16do that then you’re probably relying on42:18stereotype or unconscious bias as used42:20as42:21say now the first part of you know your42:24question is a harder philosophical42:26question to answer I think you’re right42:29that our Constitution was founded42:32through a kind of mixture kind of a42:34hodgepodge of ideas right there’s kind42:36of a deep commitment at the beginning to42:39what you called republican values right42:41the notion of that what we need to do is42:43kind of inculcate civic virtue among42:46people but also as you suggested a real42:48fear and skepticism of democracy they42:52thought that too much power and the42:54right in the hands of everyday people42:56would lead to the downfall of the United43:00States just like it has in every other43:01society right that tried democracy so43:03you’re absolutely right that they were43:04they designed these institutions in a43:06way that expressed that kind of a fear I43:09think we’re in a very different place in43:10lots of ways43:12we’re in a place today where we embrace43:15more broadly notions of democracy43:17one-person one-vote even as we’re43:20hanging on to some of these relics like43:22the electoral college right that reflect43:26some of these things that you that you43:28have described now I don’t have a real43:30answer here I think that we are just43:31sort of trying to do our best embracing43:34this sort of newer belief in democracy43:38at the same time we’re sort of kind of43:40you try to figure what to do with these43:42institutions that are hanging around so43:44I thank you for that43:48my question is simply one of43:51clarification I didn’t really um I43:54didn’t really understand the rationale43:56in your point that in the case of the44:00Jim Crow South 1930s Supreme Court44:05decision where those that were concerned44:10about equality under the law for the44:13accused because they had had their their44:19confessions beaten out of them that the44:22better strategy was to was to go to44:25fairness it seems like both fairness and44:28equality under the law would sort of44:32rely on the same idea that44:34african-americans are should be treated44:37fairly under the law and they should and44:39they should be treated equally under the44:41law I don’t don’t see why the one was a44:44better strategy than the other you44:46mentioned that the Equality was that the44:48justices were a little more sensitive to44:50the whole the strength the importance44:52overriding importance of qualities that44:55is at the yeah so so so I think I think44:57I I’m glad you asked this question so44:58that I can kind of kind of push a little45:00deeper and there’s more in the book45:02about this but the I think the concern45:07that the justices had and lots of people45:09have and even today a lot of judges have45:12about extending the notion of equality45:14in certain contexts like the criminal45:17justice system is that they worry that45:20it’s going to change for example or45:21alter someone’s institutional45:24prerogative one example would be in the45:27case that we’re talking about the45:29prerogative of investigators to use45:32whatever techniques right that they can45:35that are presumably lawful right to45:37investigate the prerogative of the45:41prosecutor to make discretionary45:43decisions about who to charge and what45:46to charge if we start to say that45:48equality is an idea that can kind of45:52come into this space into these45:54institutions and constrain what45:56investigators do and what prosecutors do45:59I think that this is where the judges46:03have historically been very very46:05sensitive about doing that for this very46:08reason now how is that different from46:09from fairness I think you’re totally46:11right46:11that from from the perspective of many46:13of us they sound a lot the same and46:16certainly from the perspective of the46:18defendants wouldn’t care right whether46:21you take a fairness argument a quality46:23argument you know the death sentence is46:24lifted so and that’s that’s that’s the46:28perspective dying that I encourage from46:30a sort of pragmatic sort of point of46:32view but I think we can’t hide the fact46:37that the way that we talk about equality46:39raises the serious and deep concerns46:43about changing the prosecutor of the46:45Skeeter’s discretion or the role of46:46investigators in a way that judges would46:49never want to do if possible there was46:51one earlier case where the idea of46:54equality was extended to the criminal46:56justice system system in the late 19th46:59century and that was in a case where47:01West Virginia had explicitly said by47:04statute that black men could not serve47:07on juries and they did say AHA right47:11equality comes in into this into this47:13situation too to say that the state of47:17Virginia can’t do this but the reason47:19why they say that in that case is47:21because they say something about jury47:24service has a very special sort of47:27social good right it’s a mark of47:30citizenship it’s something that we are47:33ought to be entitled to participate in47:35if we are truly to be respected in a47:37society and you see how that’s really47:39different right that’s the reason why47:41the court ends up saying equality is47:44important there and they also don’t47:45worry about interfering with anybody’s47:47prerogative so but I think it’s very47:49different than the 1930s case47:50unfortunately other questions let me I’m47:55sure you have them but let me ask one in47:57the meantime so I’ve been trying to48:00puzzle out how equality fits in with48:03affirmative action not that long ago Ivy48:06League universities had quotas about how48:09many Jews they let in that presents an48:12equality problem I think it does yes48:14today we’re hearing from some Asian48:17American students in lawsuits against48:19Harvard and University of North Carolina48:20that something similar is going on with48:24them have you do you have a take on what48:26the right way to think about that is48:27yeah it’s this is another area where48:31Americans are divided but if you ask if48:34you ask these institutions whether their48:36colleges or their high schools that have48:40the ability to control this sort of48:42demographics of their of their student48:44body they they talk about the issues as48:47one of educational experience of giving48:52kind of underrepresented groups48:54opportunities that they might otherwise48:56be prevented from and they’re trying to48:59balance like a whole host of of49:01competing kind of values if you will and49:04this is where the idea of diversity in49:05that context has been treated as a49:08serious value that you know who we allow49:13to go to school especially in these49:15state schools is important for the rest49:18of their lives right that that it sets49:20them up for their futures and their49:22ability to pursue whatever sort of49:23professional future that they want to49:25want to have and at the same time as you49:29say we’ve got to worry about you know49:32them not taking it too far that they49:35might be possibly discriminating right49:38in a way using these proxies and so I49:43think these cases will turn out only49:46after we sort of look very carefully at49:48the facts of the case right because you49:50can’t really tell what’s going on based49:52on I think the coverage yeah my question49:59is about how do you reconcile the super50:03PACs donating uh endless money to50:05campaigns and how do you think that’s50:06gonna play into our democracy when all50:08these politicians are funded by big50:11corporations and these big corporations50:12have a lot of power and many would argue50:14more power than the average citizen how50:16do you address that in your book if you50:18do yeah I don’t directly address it but50:20I have some thoughts about that and and50:22and I and you know I think I think my50:24thoughts are that I think you’re right I50:27think that you know the problem with the50:31Supreme Court’s jurisprudence in terms50:33of corporate speech and campaign speech50:36well first of all it’s a mess but but50:38but the most recent cases that defend in50:41this sort of vigorous way corporations50:43sort of outsized political influences is50:47a travesty and and the problem isn’t50:49that they rely on speech it’s that50:51they’re there the court is hypocritical50:53about it right they they defend50:55vigorously corporate speech but but they50:58they won’t look as vigorously at the51:01kinds of conditions that interfere with51:03you know the rest of our ability to sort51:06of have the same or equivalent impact on51:08politics and that’s to me that really51:10the problem so I don’t have a problem51:11with the51:12court seeing that speech is involved in51:15political advocacy I think that basic51:18idea has been useful to a lot of51:21different rupes in society one of the51:23one of the groups that that really51:25needed it at a certain point in time was51:27the n-double-a-cp and I do talk about51:29that that there are some very important51:31cases and one of the stories I I talk51:33about is one where the Supreme Court has51:36has trouble deciding whether a state’s51:39restriction should be treated one as a51:40violation of equality and they can’t get51:43five votes that can only come up with51:44about three and a half I think right51:46there’s one justice who’s waffling on as51:49well tell you the story now the story is51:50is that after the Supreme Court hands51:53down Brown versus Board of Education was51:55we know there’s massive resistance and51:56in some states including Virginia what52:00what they do is they pass sort of52:02creative laws that prevent lawyers from52:04doing public interest work and so what52:06Virginia did with the pass a law to say52:08that no lawyer in Virginia could solicit52:12a client and can handle a case unless52:16the organization itself had a financial52:19interest in the outcome of the case and52:21of course that would put all public52:23interest litigation at business because52:26these people are volunteering their52:27their services for someone else right so52:30a number of the justices at least three52:33and half I thought this was a problem of52:35the quality that what’s going on is that52:37that that Virginia was trying to52:39frustrate Brown versus Board of52:41Education we can just extend the idea of52:44equality just a little bit and say52:45you’re sort of trying to do this and run52:47around equality well the other justices52:49would not have it they said we they’re52:52not mentioning race in the statute and52:55here’s a practical consideration we’ve52:58long allowed Virginia as a state to53:00regulate the practice of law and so if53:03we start sticking equality into this53:05domain then we’re going to start53:07creating all kinds of new constitutional53:09rules that we don’t want to have there53:11okay so what happens in this in this53:14great story that tell is that the53:16Supreme Court ends up finding an53:17argument that nobody argued nobody53:20briefed free speech and they said that53:23the n-double-a-cp s53:25right to free speech the form of53:28political advocacy through through53:29litigation was violated so to me this is53:34this is great and it’s an example where53:35speech and equality lines lines up I53:38just think that the court has to be53:39consistent about thinking along those53:41lines I think we’ve got time for one53:44more question hey professor side how are53:53you great to see you in response to the53:56new criminal justice reform act which53:59long lasting implications do you see in54:02regards to the new changes and also in54:05steps towards achieving equality and54:08how’s that reconciled with the current54:11administration’s view on criminal54:13justice and the different direction it54:15took compared to the last administration54:17yeah there’s there’s a lot of54:18interesting components to the to the54:21criminal justice reform bill I think54:24what I’d rather sort of say though is54:26that that’s actually a really good54:27example of certain kinds of elected54:30officials deciding that equality was54:33something that they could that they54:34should care about that that we ought to54:35care about and then finding ways to54:39reach a consensus54:42some people say compromise but I don’t54:44like compromise because it sounds like54:45if you’re compromise that somehow you’re54:47what you’re what you’re willing to take54:48us half a loaf and this book is54:50decidedly against the idea that if you54:53believe in equality should take half a54:54loaf is that we should be more clever54:56and find ways not to take half a loaf54:58right and yet to find different ways to55:01ameliorate the injuries and so I think55:03that the from what I’ve seen from the55:04criminal justice bill there were people55:07who cared about racial equality I’ll55:09just mention cory booker but he’s not55:11the only one there are a lot of other55:12people who worked on this on this55:14legislation and through a variety of55:16different kinds of I think appeals to55:18these different people including some55:20key Republicans and I guess even Jared55:22Kushner am i right about this yeah so55:24right I mean he’s the easy one he55:26convinces his father-in-law to sign in55:28to take credit for it and you know god55:31bless him for that right so so whatever55:33arguments and variety of arguments were55:35being made55:36and I heard some you know it had an55:39impact and to me said that the whole55:40process is a good example of this right55:43but in terms of the actual prediction55:46about what will have the most most55:48lasting impact I’m not sure if you have55:50an ideas about that not right now55:52[Music]55:53so this was such a fascinating55:56discussion full of insights please55:58express your admiration for Robert by56:01clapping by buying the book thanks so56:05much for coming out and thank you Adam56:07[Applause]56:15you
The molten core of right-wing nationalism is the furious denial of America’s unalterably multiracial, multicultural national character.
The Republican Party under Donald Trump has devolved into a populist cult of personality. But Mr. Trump won’t be president forever. Can the cult persist without its personality? Does Trumpist nationalism contain a kernel of coherent ideology that can outlast the Trump presidency?
At a recent conference in Washington, a group of conservatives did their level best to promote Trumpism without Trump (rebranded as “national conservatism”) as a cure for all that ails our frayed and faltering republic. But the exclusive Foggy Bottom confab served only to clarify that “national conservatism” is an abortive monstrosity, neither conservative nor national. Its animating principle is contempt for the actually existing United States of America, and the nation it proposes is not ours.
Bitter cultural and political division inevitably leads to calls for healing reconciliation under the banner of shared citizenship and national identity. After all, we’re all Americans, and our fortunes are bound together, like it or not.
Yet the question of who “we” are as “a people” is the central question on which we’re polarized. High-minded calls to reunite under the flag therefore tend to take a side and amount to little more than a demand for the other side’s unconditional surrender. “Agree with me, and then we won’t disagree” is more a threat than an argument.
The attackers — the nature-denying feminists, ungrateful blacks, babbling immigrants, ostentatiously wedded gays — bear full responsibility for any damage wrought by populist backlash, because they incited it by demanding and claiming a measure of equal freedom. But they aren’t entitled to it, because the conservative denizens of the fruited plain are entitled first to a country that feels like home to them. That’s what America is. So the blame for polarizing mutual animosity must always fall on those who fought for, or failed to prevent, the developments that made America into something else — a country “real Americans” find hard to recognize or love.
The practical implication of the nationalist’s entitled perspective is that unifying social reconciliation requires submission to a vision of national identity flatly incompatible with the existence and political equality of America’s urban multicultural majority. That’s a recipe for civil war, not social cohesion.
Yoram Hazony, author of “The Virtue of Nationalism” and impresario of the “national conservatism” conference, argued that America’s loss of social cohesion is because of secularization and egalitarian social change that began in the 1960s. “You throw out Christianity, you throw out the Torah, you throw out God,” Mr. Hazony warned, “and within two generations people can’t tell the difference between a man and a woman. They can’t tell the difference between a foreigner and a citizen. They can’t tell the difference between this side of the border and the other side of the border.”
“The only way to save this country, to bring it back to cohesion,” he added, “is going to be to restore those traditions.”
Mr. Hazony gave no hint as to how this might be peacefully done within the scope of normal liberal-democratic politics. “It’s not simple,” he eventually conceded. Mr. Hazony notably omitted to mention, much less to condemn, the atrocious cruelty of America’s existing nationalist regime. Indeed, roaring silence around our Trumpian reality was the conference’s most consistent and telling theme.
The incoherence of an American nationalism meant to “conserve” an imaginary past was not lost on everyone at the conference.Patrick Deneen, a political theorist at Notre Dame, pointed out that American nationalism has historically been a progressive project. The nationalism of Theodore Roosevelt and Woodrow Wilson, he noted, arose as the United States began to establish itself as an imperial power of global reach. Building nations has always been about building armies, regimenting the population and centralizing political control.
Yuval Levin, the editor of National Affairs, similarly observed that nationalist projects meant to unite the diverse tribes and cultures of large territories generally involve a program of political mythmaking and the state-backed suppression of ancestral ethnic and community identities.
Mr. Levin suggested that a genuinely conservative nationalism, in the context of a vast national territory with an immense multiethnic population, would refrain from uprooting these traditions and communities and seek instead to preserve them in a vision of the nation as “the sum of various uneven, ancient, lovable elements,” because we are “prepared for love of country by a love of home.”
But what, today, do Americans call “home”? The next logical step would be to observe that the contemporary sum of rooted, lovable American elements includes the
- black culture of Compton, the
- Mexican culture of Albuquerque, the
- Indian culture of suburban Houston, the
- Chinese culture of San Francisco, the
- Orthodox Jewish culture of Brooklyn, the
- Cuban culture of Miami and the
- “woke” progressive culture of the college town archipelago, as well as the
- conservative culture of the white small town.
But Mr. Levin, a gifted rhetorician who knew his audience, did not hazard this step.
Barack Obama claimed resounding victory in two presidential elections on the strength of a genuinely conservative conception of pluralistic American identity that embraced and celebrated America as it exists. Yet this unifying vision, from the mouth of a black president, primed the ethnonationalist backlash that put Mr. Trump in the White House.
The molten core of right-wing nationalism is the furious denial of America’s unalterably multiracial, multicultural national character. This denialism is the crux of the new nationalism’s disloyal contempt for the United States of America. The struggle to make good on the founding promise of equal freedom is the dark but hopeful thread that runs through our national story and defines our national character. It’s a noble, inspiring story, but the conservative nationalist rejects it, because it casts Robert E. Lee, and the modern defenders of his monuments, as the bad guys — the obstacles we must overcome to make our nation more fully, more truly American.
To reject pluralism and liberalizing progress is to reject the United States of America as it is, to heap contempt upon American heroes who shed blood and tears fighting for the liberty and equality of their compatriots. The nationalist’s nostalgic whitewashed fantasy vision of American national identity cannot be restored, because it never existed. What they seek to impose is fundamentally hostile to a nation forged in the defining American struggle for equal freedom, and we become who we are as we struggle against them.
Whether couched in vulgarities or professorial prose, reactionary nationalism is seditious, anti-patriotic loathing of America hiding behind a flag — our flag. We won’t allow it, because we know how to build a nation. We know how the American story goes: We fight; we take it back.
Anyone who has argued with an opinionated relative or friend about immigration or gun control knows it is often impossible to sway someone with strong views.
That’s in part because our brains work hard to ensure the integrity of our worldview: We seek out information to confirm what we already know, and are dismissive or avoidant of facts that are hostile to our core beliefs.
But it’s not impossible to make your argument stick. And there’s been some good scientific work on this. Here are two strategies that, based on the evidence, seem promising.
1) If the argument you find convincing doesn’t resonate with someone else, find out what does
The answer to polarization and political division is not simply exposing people to another point of view.
In 2017, researchers at Duke, NYU, and Princeton ran an experiment where they paid a large sample of Democratic and Republican Twitter users to read more opinions from the other side. “We found no evidence that inter-group contact on social media reduces political polarization,” the authors wrote. Republicans in the experiment actually grew more conservative over the course of the test. Liberals in the experiment grew very slightly more liberal.
Whenever we engage in political debates, we all tend to overrate the power of arguments we find personally convincing — and wrongly think the other side will be swayed.
On gun control, for instance, liberals are persuaded by stats like, “No other developed country in the world has nearly the same rate of gun violence as does America.” And they think other people will find this compelling, too.
Conservatives, meanwhile, often go to this formulation: “The only way to stop a bad guy with a gun is a good guy with a gun.”
What both sides fail to understand is that they’re arguing a point that their opponents have not only already dismissed but may be inherently deaf to.
“The messages that are intuitive to people are, for the most part, not the effective ones,” Robb Willer, a professor of sociology and psychology at Stanford University, told me in 2015.
Willer has shown it’s at least possible to nudge our political opponents to consider ideas they’d normally reject outright. In 2015, in a series of six studies, he and co-author Matthew Feinberg found that when conservative policies are framed around liberal values like equality or fairness, liberals become more accepting of them. The same was true of liberal policies recast in terms of conservative values like respect for authority.
Willer has shown it’s at least possible to nudge our political opponents to consider ideas they’d normally reject outright. In 2015, in a series of six studies, he and co-author Matthew Feinberg found that when conservative policies are framed around liberal values like equality or fairness, liberals become more accepting of them. The same was true of liberal policies recast in terms of conservative values like respect for authority.
So, his research suggests, if a conservative wanted to convince a liberal to support higher military spending, he shouldn’t appeal to patriotism. He should say something like, “Through the military, the disadvantaged can achieve equal standing and overcome the challenges of poverty and inequality.” Or at least that’s the general idea.
In a recent effort Willer and a co-author found, in a nationally representative sample, that conservatives would be more willing to support a hypothetical liberal candidate for president if that candidate used language that reflected conservative values. For instance, conservatives who read that the candidate’s “vision for America is based on respect for the values and traditions that were handed down to us…” were more likely to say they supported him than when the candidate’s message was framed with liberal buzzwords.
How to sway the other side: Use their morals against them
Willer’s work is based on moral foundations theory. It’s the idea that people have stable, gut-level morals that influence their worldview. The liberal moral foundations include equality, fairness, and protection of the vulnerable. Conservative moral foundations are more stalwart: They favor in-group loyalty, moral purity, and respect for authority.
Politicians intuitively use moral foundations to excite like-minded voters. Conservative politicians know phrases like “take our country back” get followers’ hearts beating.
What moral foundations theory tells us, however, is that these messages don’t translate from one moral tribe to the other. “You’re essentially trying to convince somebody who speaks French of some position while speaking German to them,” Willer says. “And that doesn’t resonate.”
Willer cautioned that it’s still extremely difficult to convert a political opponent completely to your side, even with these techniques. “We found statistically significant effects,” he says. “They’re reliable. But in terms of magnitude, they are not large.”
The chart below shows how well the moral reframing worked for each policy area in Willer’s study. To be clear, there’s only so much that reframing in terms of values can do: It can’t turn an anti-Obamacare conservative into a proponent, but it can soften his stance and get him to listen to counterarguments.
Jonathan Wolff gives a very brief introductory overview of John Rawls’ A Theory of Justice, one of the most influential works in political philosophy of the 20th century. Rawls’ argument takes the form of a thought experiment involving a hypothetical contract in which people are made ignorant about certain facts about themselves which could bias them in their own favor (e.g. their race, gender, class, age, talents, etc.). In this way, ignorance is used as a way to guarantee impartiality in deciding how societies should be set up. After all, one cannot rig things up to benefit oneself if one doesn’t know what one’s interests are and what one’s position in society will be. Rawls argued that people behind this so-called “veil of ignorance” would agree to two principles of justice: the liberty principle and the difference principle. Jonathan Wolf explains these principles and the main arguments for and against them. (My Summary)