Posted by Orin Kerr:
Does Civility Make You an Apologist For Lawlessness? One More Round With Glenn
Greenwald:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1226166556
Glenn Greenwald [1]has a new post (see item 8) taking issue with the
many bloggers and commenters who disagreed with his description of me
as an "aplogist . . . for many lawless and radical Bush policies."
They are wrong and he is right, he is insisting, and he offers a new
explanation of why:
My description the other day of Law Professor Orin Kerr as a
leading apologist for radical and lawless Bush policies -- a
description I documented in the update to the post -- spawned all
sorts of consternation among his friends and admirers. You see,
he's so reasonable and civil and polite in how he conducts himself
that it's really wrong to say anything so critical about him.
But, as one of his own commenters pointed out so adeptly, that is
precisely the point: "Whether or not the policies are radical in
terms of popular or political support, [Greenwald] believes them to
be a radical departure from our constitutional principles. If you
believed as he does, outrage would indeed be the proper response --
one of his objections to what's been going on is precisely the
willingness to discuss outrageous policies (torture, unlimited
executive authority) as if they were reasonable. The argument is
simple: constitutional constraint depends on elites and ordinary
citizens not merely *disapproving* of governmental overreach but
*hating* it, being *outraged* by it -- if constitutional violations
become merely one area of policy disagreement to be traded off
against others, republican government is doomed."
That's exactly the point. The Bush administration was able to get
away with its extremism and lawlessness over the past eight years
because elites and "experts" sat around oh-so-civilly and
self-importantly and reasonably debating these actions as though
they were legitimate, as though support for those policies was
worthy of serious and respectful consideration, as though the
advocates of these policies were Serious People within our
political mainstream, and -- most of all -- as though outrage and
anger and revulsion over what the Bush administration was doing was
only for the shrill, irresponsible and uncouth rabble.
What a curious perspective on the world. If I understand Greenwald
correctly, I deserve condemnation for taking arguments seriously: in
his words, I "reasonably debat[ed] these actions as though they were
legitimate, as though support for those policies was worthy of serious
and respectful consideration." In other words, I was an apologist for
lawless and radical Bush policies even when writing posts that
rejected them. By rejecting positions through reason rather than
invective, I legitimated the positions I rejected.
I think Greenwald has it exactly backwards, though. If you actually
want to persuade folks who haven't made up their mind already on
ideological grounds -- that is, the crowd that is open to persuasion
--invective won't cut it. You need real arguments, and you need
credibility, and you can get that only by taking arguments seriously
and evaluating them on the merits free of insults and abuse. You don't
need to express "outrage" to make the point; in fact, outrage only
takes away from it. My approach doesn't sell a lot of books, I
realize, but I think it does get to the bottom of things.
In any event, if Greenwald's indictment is that I treated arguments
with respect, argued ideas rather than people, and reached the merits
without dismissing opponents out of hand, then I happily plead guilty.
References
1.
http://www.salon.com/opinion/greenwald/2008/11/08/various_matters/index.html
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