The Elephant in the Judicial Chambers

Monday, 07-26-2021


Popular writing about the Supreme Court focuses on the content of the complex rules that the Court fashions for deciding cases.  Conservatives criticize them for favoring the left, liberals for not doing so enough.  Far too few citizens notice the most conspicuous feature of the situation, which is not which way these intricately complex rules lean, but the sheer fact of their intricate complexity.

A few distinctions aid precision, but a thousand distinctions destroy precision.  Suppose, for example, the Court says that the constitutionality of a law depends on whether it correctly balances the interests of the plaintiffs against community standards, whether the burden on the plaintiffs is constitutionally significant, or whether the state interests advanced by the law are compelling.  As the late Justice Scalia remarked, interests, burdens, and standards of this sort are not mentioned in the Constitution, and needless to say, the document does not contain criteria for weighting significance or compellingness.  What then do these factors mean, and what is the correct way to balance or apply them?

Not even the members of the Court know the answer to that question.  Everything depends on their respective moods at the time each case is decided.  Not only does this inevitably politicize the Court, but it also encourages disputants to litigate everything, continually returning to the Court to see what they can get away with (or what they can keep other people from getting away with) this time around.

In this way, the law of the land comes to depend less and less on legislative judgment, and more and more on judicial whims.

Admittedly, legislatures encourage this sort of thing through imprecise legislation – which amounts to passing the buck.  But few had expected, when the Constitution was new, that it would be so easy for judges to magnify their importance.


Greater Than Ourselves?

Monday, 07-19-2021


It is commonly said that although devotion to a wicked cause is bad, at least it is good that the devotee is giving himself to “something greater than himself."

I have no interest in defending narcissism.  Closely examined, though, most of the things that are supposed to be greater than the self turn out to be either things less than the self, or else disguises for something about the self.

In the former category, for instance, some people feel small in the face of the Cosmos or the All, and so they worship that.  But although the totality of everything is bigger than the self, it is not greater.  In fact, it is less, for it does not even rise to the level of being a person.  Every single person in the created universe is a higher entity than the universe as a whole.  The mere agglomeration of life and death, animals and stars, harmonicas and pneumonia, pop concerts and yogurt smoothies, love, malice, lies, truths, pimples, illusions, and everything else is not the sort of thing that can love, know, or deliberate.  It doesn’t have hopes, aspirations, or disappointments.  It will never learn your name.  It can’t answer when you speak to it.  It’s not a who, but only a whopping big what.

As to the latter category, there are lots of examples.  How amazing that in adoration of our own reflections, we immolate not only others but ourselves.  The Nation may be merely a many-times-multiplied idol of myself; pleasure, an idol of my senses; fertility, of my animal powers; knowledge, of my intellectual powers; money, of my power; and power, of my will.  A friend has famously been called “another self,” but for this very reason, another person can also be an idol of the self.  Now any of these things may be good in themselves.  Some are very good; it is wonderful to have a friend.  But they are not good when turned into idols.

Needless to say, a good deal of what passes for the worship of God is really idolatry too.  Yet if only He is pursued properly, God may be the only thing truly greater than ourselves that we ever do worship.



Monday, 07-12-2021


One day in class, I commented to my students that scientists and other intellectuals fall into groupthink at least as readily as other people do, and I offered examples.

The hypothesis of continental drift is now generally accepted, but during the first half of the twentieth century, most geologists considered it ridiculous.  The natural historian David Attenborough tells a story of one of his college lecturers calling it “moonshine” and sneering at him just for asking about the idea.

Or take the hypothesis of global warming.  When I was young, I was taught that we are in danger of freezing in glaciers because the planet is cooling.  Now the young are taught with equal conviction that we are in danger of drowning in melted ice because the planet is warming.  Climatology is a notoriously inexact science, much more so than geology, and it is especially difficult to tell what is really going on with global temperatures because anyone expressing less than absolute certainty is squashed.

I suggested to my students that the great thing is not to follow the majority wherever it leads, but to follow the evidence wherever it leads.  Attacking those who present reasons to draw different conclusions is deadly.

Apparently the lesson didn’t take.  At the end of the same semester, one of the students wrote in his course survey that although I was a good teacher, he was giving me a poor teaching evaluation because I was a “climate denier.”


Two Wrongs

Monday, 07-05-2021


Justice is giving to each person what is due to him:  Whatever reward, punishment, or share in common benefits or burdens he deserves.  The only way to be just is to practice justice.  Proclaim all you like the justice of doing injustice in certain cases, but the most careful rules for justifying injustice can never make injustice just.

Today we deny this.  For example, we punish persons who have done no wrong, just because of wrongs done long ago by people who may not even have been their ancestors but happen to have had the same color of skin.  James did wrong, but James is dead, so let’s punish John, who looks like him.

“But John enjoys good fortune that he doesn’t deserve.”  Did John get his good fortune by doing wrong to someone else?  If he did, take it away!  But John doesn’t earn punishment merely by enjoying a blessing that Peter doesn’t.  Would it be just to punish me to compensate for the fact that I didn’t deserve so good a mother as I had?  If you insist on leveling, you will have to.  But that isn’t justice.  It’s malice.

Besides, once you begin rationalizing injustice, you can never stop.  If you talk yourself into committing injustice for one social goal – say, equality – then you can talk yourself into committing it for any social goal.  So long as you like the result more than you dislike the accusations of your conscience, you can do anything, to anyone, for any reason.


Midweek Query

Thursday, 07-01-2021


A Reader Asks:

Your website is called the Underground Thomist.  Are you really underground?




Orwell, Move Over

Monday, 06-28-2021


Voter suppression.  Old definition:  Any attempt to prevent eligible persons from voting.  New definition:  Any attempt to prevent ineligible persons from voting.

Racism.  Old definition:  Treating people according to the color of their skin.  New definition:  Not treating people according to the color of their skin.

Science.  Old definition:  Following the evidence wherever it leads.  New definition:  Discarding evidence that doesn’t fit the narrative.

Judgment.  Old definition:  The intellectual act by which justice is recognized and enacted.  New definition:  A habit of bigoted people.

Education.  Old definition:  Systematically acquiring knowledge and intellectual discipline.  New definition:  Systematically internalizing the attitudes of those considered smart.

Hate.  Old definition:  Malice toward others.  New definition:  Disagreeing with the speaker.

Virtue.  Old definition:  Wisdom, courage, justice, and temperance.  New definition:  Agreeing with the speaker.

Progressive.  Old definition:  Having a tendency to promote changes for the better.  New definition:  Having a tendency to promote whatever changes the opinion-forming classes approve at the present time.

Freedom of Speech.  Old definition:  Liberty of persuasion, argument, and discussion, with restrictions on obscenity, libel, and threats.  New definition:  Liberty of obscenity, libel, and threats, with restrictions on persuasion, argument, and discussion.

Woman.  Old definition:  An adult human being of the sex opposite and complementary to a man.  New definition:  Fill in the blank.


Doubleplusgood Ducktalkers


The New KKK

Monday, 06-21-2021


The central idea of critical race theory is “systemic racism”:  That the way things work is stacked against persons of color, even if no one actually has any ill will or bias against them.

Stacked against them how?  We're not speaking of things like slavery or segregation.  An example might be expecting college writing and speech to conform to standard English.  According to critical race theory, standard English is nothing but the way white people talk.  So suppose I tell my students to use their verb tenses properly.  That upholds systemic racism, because I am expecting all the students to “talk white.”

This sort of thing would be silly, if it weren’t so pernicious.  Having a lot of different ways to speak is fine, but people who speak different ways cannot expect to understand each other unless, alongside all of them, there is also a standard way.  Teaching the standard way benefits all of us by lifting us out of the little islands of our particular dialects.  Not teaching it hurts all of us, but it hurts those who speak minority dialects the most.  So a lot of black kids will suffer.

There is more.  As critical race theorists view things, not only can the system be racist even if no one has racial bias, but individuals can be racist even if they have no racial bias.  For racial bias isn’t what they mean by racism.  Since they see the system as stacked against black people, they also see anyone who participates in the system without protest as supporting the suppression of black people, whether intentionally or not.  So I am a racist just because I do expect all my students to learn their verb tenses.  To someone who thinks this way, the fact that I sincerely believe that learning standard English will be helpful to students of every color is beside the point.

Not only do critical race theorists think one can lack racial bias and be a racist, they think one can have racial bias and not be a racist.  Premise:  All white people, just by virtue of being white, are inheritors of unfair advantages.  Premise:  In order to cancel out unfair advantages, one must discriminate against the people who have them.  Conclusion:  Discrimination against black people is racist because, by definition, black people are inheritors of disadvantage; but discrimination against white people is anti-racist because, by definition, white people are inheritors of privilege.  To the new KKK who think this way, the only way to fight bad racism is good racism – except that in their topsy-turvy way of speaking, good racism isn’t racism.

Where does this leave us?  Equal opportunity is racist.  Color-blindness is racist.  Treating people of every race the same is racist.  The mere act of disagreeing with these opinions is racist, because that too upholds systemic racism.

There is no natural limit to such thinking.  Traffic signals, botanical collections, the teaching of mathematics, the stocking of books in libraries, the practice of posting earthquake warning signs near geological faults, even Thomas the Tank Engine – all these things and more have been branded as systemically racist.

In his famous speech at the Washington monument, Martin Luther King said “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”  To a critical race theorist, that dream was the epitome of systemic racism.  I can only conclude that if MLK was a “racist,” then we need more “racists” like MLK.