Establishing orthodoxy

Tue Sep 14 14:59:11 PDT 2004

Dear all,

I'm coming to this discussion late, but this exchange between Bobby and 
Eugene reminds me of a distinction that Michael Perry emphasizes (in his 
latest book, "Under God") between the demands of the Constitution and the 
demands of "political morality" (or, the demands of "liberal 
democracy").  Perry's view is that reliance in the political arena on 
religiously grounded moral beliefs violates neither the Constitution, nor 
the "political morality" of liberal democracies.

Is Bobby's view that strongly worded and unyielding-in-tone condemnations 
of, say, the ideology of racial supremacy violate the political morality of 
liberal (constitutional) democracies, or is it also that such condemnations 
also run afoul of the Constitution itself?  The former view would be, I 
guess, *slightly* different than a view that embraced Eugene's point 
(below) that such condemnations might not be very helpful to the causes of 
those who offer them.

Best,

Rick

At 04:34 PM 9/14/2004, you wrote:
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>
>     Got it, thanks -- I think I now understand better Bobby's views on 
> the subject, though I'm still not persuaded that government statements 
> about racism, patriotism, or what have you become unconstitutional 
> because they are unaccompanied by reasons, or are set forth in the wrong 
> tone.  Perhaps they're unhelpful or even counterproductive to democratic 
> debate, and could be condemned on those grounds; it just doesn't seem to 
> me that they are therefore unconstitutional (whether such a 
> constitutional bar is enforceable or not).
>-----Original Message-----
>From: religionlaw-bounces at lists.ucla.edu 
>[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
>Sent: Tuesday, September 14, 2004 2:18 PM
>To: religionlaw at lists.ucla.edu
>Cc: RJLipkin at aol.com
>Subject: Re: Establishing orthodoxy
>
>Eugene writes:
>
>   "If government official say "Racism is just plain wrong, all decent 
> people should understand this, and if you're a racist, then you're 
> un-American and an irrational bigot" this is impermissible, because the 
> speaker seems to "regard [it] as needing no reasons, or [being] 
> necessarily true, or [being] a condition of rationality."  Is that 
> so?  Is such a statement also unconstitutional?"
>
>         In my view, yes, it is impermissible. Respect for one's fellow 
> citizens entails giving them reasons for one's declarations even when 
> doing so seems superfluous, otherwise unnecessary, or even if one feels 
> giving reasons for certain attitudes, for example, antiracism is itself 
> in some way unsettling.  One can imagine a government official saying, 
> "Are you serious? Do you really want me to give reasons for not being 
> racist, for opposing murder, sexual assault, and so forth? Get real!" I, 
> of course, sympathize with this reaction and in particular situations it 
> might just be silly to give reasons for certain declarations.  However, 
> in my view, that doesn't affect the issue of whether one should have 
> reasons for one's declarations, and one should be prepared to give them 
> in the appropriate circumstances, while recognizing that not every 
> deliberative debate requires us to provide reasons for or justifications 
> of every conceivable position at all times. Quine made this point by 
> saying, and I paraphrase, every proposition in our conceptual scheme is 
> subject to rejection, though not all at once.  The message this sends me 
> is that nothing is sacrosanct or orthodox in our conceptual scheme, that 
> is, everything must be based on good reasons, and in the appropriate 
> circumstances (unspecifiable in advance) any proposition might be rejected
>despite the fact that in every debate some propositions will remain 
>constant and unchallenged in order to debate and challenge other propositions.
>
>         Whether such a statement is unconstitutional depends entirely on 
> explicating two senses of 'unconstitutionality': (1) enforceability and 
> (2) incompatibility with norms of constitutional democracy. The above 
> declaration is, in my view, perfectly constitutional in sense (1); 
> whatever else might be said of it, a public official (or anyone else) has 
> an enforceable right to say it. In sense (2), by contrast, I would say it 
> is unconstitutional.  But, of course, to make that stick or even 
> plausible I need to articulate my theory of constitutional democracy as 
> the most plausible theory of the U.S. Constitution, and that I cannot do 
> at present.
>
>         "If government officials say "If you're an American and don't 
> love America, you're wrong and un-American.  The reason for this is that 
> America is a beacon of hope for the world -- we won't repeat the 
> evidence, but consider the contents of your history books" this is 
> permissible, because the speaker doesn't seem to "regard [it] as needing 
> no reasons, or [being] necessarily true, or [being] a condition of 
> rationality."  Is that so?"
>
>         Though reasons are presented, tone is also relevant.  My 
> constitutional democrat eschews claims about what's "un-American" as 
> being antithetical to democratic debate. Its use, in my experience, is to 
> bully others into accepting your views even if they reject your reasons, 
> or if someone is viewed as hopelessly unpersaudable by the speaker, using 
> "un-American" is often designed to frighten other people from being 
> persuaded by your argument. The speaker in Eugene's scenario gives reason 
> for loving America; he or she does not give reasons for calling those who 
> disagree "Un-American." And that's just the point. The contention that 
> you're un-American if you don't accept my reasons for loving American 
> suggests I'm not really committed to the reasons rather I want my speech 
> act to bully you into accepting my views.  Just as reasons are required 
> to substantiate the contention that we should love America, reasons also 
> must be giving for calling someone who doesn't accept these reasons for 
> loving American, "Un-American," unless, of course, the charge of 
> "un-American-ness" is regarded as merely a descriptive statement, a claim 
> I find hard to take seriously.
>
>      My rejection of orthodoxy is not just an independent view about 
> certain propositions--some of which are designed to establish orthodoxy 
> because they offer no reasons, while some are not guilty of orthodoxy 
> because reasons are given for them.  It's also how the reasons are 
> presented, what one says of people who don't accept these reasons, and 
> one's general attitude toward dissent. That's why it's difficult to say 
> in advance whether various speech-acts attempt to establish orthodoxy or 
> not. The context, intentions of the speaker, expected effects of the 
> listener, and probably a whole host of other indicia are relevant to 
> describing a speech-act as establishing orthodoxy.  Such judgments will 
> no doubt, be "essentially contested," but that makes the inquiry 
> imprecise, not unintelligible or incoherent.  And inquiries into 
> orthodoxy--the context and subject matter involved--probably are as 
> precise as one can expect. For me, insisting that this or that statement 
> is an impermissible establishment of orthodoxy is far less important than 
> persuading others that orthodoxy is antithetical to democratic 
> values.  However, as I said in my earlier, post I'd welcome the arguments 
> of other constitutional democrats, or anyone else for that matter, to the 
> effect that orthodoxy has its place in a democracy also.
>
>Bobby
>
>
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
>Delaware
>
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