Proof, tendencies, and patterns

[Volokh, Eugene]

        I guess I find it hard to take such a philosophical attitude towards
what are, after all, accusations of pretty serious transgression.

        Someone says:  "The ACLU is actually working to promote Communist
world domination."  When pressed to give proof, the response is:  "Where's
the proof?  Oh, there's no proof.  It's just the perspective I take:  My
psychological evaluation of what the ACLU people must really want.  I know
it cannot be demonstrated; it's just an argument based on my personal belief
and experience."

        Someone else says:  "The reason there are so many movies showing
Italian-American gangsters is because the Jews who control Hollywood want to
slander us."  When asked for proof, the response is:  "Well, that's just my
perspective based on my psychological estimation of Jewish studio
executives' motives.  Hey, I'm just trying to work something into the
discourse over time.  I just 'know' this based on my experience and personal
beliefs."

        I *know* that Steve, and others on the list, honorable, decent
people all would never accept either of these arguments.  What's more, I
take it that most of us would roundly condemn the unsupported making of
incendiary charges, charges of bigotry or disloyalty or breach of an
institution's most important duties.  If there were evidence for the
charges, we'd of course accept them -- sometimes incendiary charges (if
supported) need to made.  But if there was no evidence, we would demand that
the charges not be made, or were at least made at a level commensurate with
the available evidence (e.g., "Whatever its motivations, the ACLU's actions
in this case may end up playing into the Communist Party's hands").

        The same, it seems to me, has to apply to charges about Supreme
Court Justices no less than about the ACLU or about Jewish studio
executives.  It's our obligation, both as scholars and simply as fair-minded
people.



Steve Jamar writes:

> I agree that there is no proof for the assertion that "Native American
> exception to the free exercise clause (free exercise for everyone but
> Native Americans)", and yet it is an assertion that has some validity -
> though Eugene disagrees.
>
> So what is proof?  How does one test such a hypothesis?  Doesn't it depend
> a great deal on the perspective one wants to take?  An empirical counting
> approach?  An illustrative approach of finding a few instances?  A
> sociological approach?  A textual approach (there is literally no such
> exception in the Constitution, of course).  An "if you say so" approach -
> taking the justices at their word as to motive?  A psychological approach?
> A philosophical approach on what is and what is not religion?
>
> How does one look at sameness?  What cases are the same?  Which are
> different?
>
> Part of what we accept as proof is whatever we can convince a court to
> buy.  Part of what we accept as proof is what becomes "common knowledge"
> or common opinion among those who think about and work with such stuff.
> We accept the results of discourse over time as proof.  But it is not
> necessarily reliable - it took a long time to get to Brown v. Bd. of
> Education and the ruling that de jure discrimination is unconstitutional.
>
> Anything else is opinion or hypothesis or mere idea.  The ideas may be
> judged by their explanatory power - and if powerful enough, they may get
> adopted as correct by those who work with them.
>
> Some of these ideas simply cannot be demonstrated and so they become
> arguments based on personal beliefs and experience.    And so it is that
> many people "know" what is the best policy and best law - while others
> "know" just the opposite.
>
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