March 17, 2012

"Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises?"

Scott Douglas Gerber, commenting on the reaction he got to his book "First Principles: The Jurisprudence of Clarence Thomas."
[H]e received a note from a friend who wrote, “I think it is a very worthwhile venture, but one fraught with potential problems.”

"'What potential problems could there be?’ I asked myself upon reading this," Gerber said. "Has academia come to this? Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises? Note that this does not mean I am supporting Clarence Thomas; it does mean, however, that I am not against him."
By the way, I can't find Gerber's book on Amazon or in the iTunes bookstore. My Amazon search for the title turned up a bunch of mismatches, led by "Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives." Hmmm. [ADDED: The article at the link got the title of the book wrong, and Amazon's search tool isn't good at guessing its way around problems like that. Here's the book, which is called "First Principles," not "Founding Principles." Unfortunately, you can't get it in ebook form.]

Anyway, as the first link above shows, Clarence Thomas marks his 20th year on the Supreme Court this year. Oh, to have been blogging then!
Thomas’ critics strove to mischaracterize his views about the Declaration of Independence during his nomination process in 1991, according to Gerber.

“For example, Harvard Law Professor Lawrence Tribe wrote in a scathing “New York Times” op-ed that Thomas would use the Declaration to turn back the clock to the darkest days of the nation’s history. Quoting Tribe: ‘Most conservatives criticize the judiciary for expanding its powers, creating rights rather than interpreting the constitution. Thomas, judging from his speeches and scholarly writings, seems instead to believe judges should enforce the founders’ natural law philosophy… which he maintains is revealed most completely in the Declaration of Independence. He is the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.’

“What critics such as Tribe fail to appreciate was that Thomas was articulating the standard individual rights interpretation of the Declaration, an interpretation shared by Jefferson, Lincoln and Rev. [Martin Luther] King Jr.,” Gerber said. “To secure these rights, the Declaration proclaims, governments are instituted among men.”
Here's that Tribe op-ed in its natural habitat. If only blogging had been around back then, what would we lawprof bloggers have said? It's nice to have Gerber's book — except that it's impossible to get (in the sense that I can't download it into my computer right now. I do have a library!). But the ability to blog these things in real time is something that we now see as an essential check on liberal media. It's frightening in retrospect to think of the one-sided manipulations we simply endured back then.

I'll write a law review article — perhaps one thought — and it might come out in less than a year, if I'm lucky. Oh, but what if the law reviews are looking for "partisan pamphlets"?

Conservatives were boxed in, and blogging opened the box.

48 comments:

rhhardin said...

It's frightening in retrospect to think of the one-sided manipulations we simply endured back then.

Some of us threw out the TV, in 1971 for me.

I wasn't even political then, just put off by the third grade level of the news.

No TV ever since.

EDH said...

Jeez, the playbook hasn't changed much in twenty years, has it?

Tribe:Consider abortion. Judge Thomas has called even the right of married couples to use birth control -- recognized by the Court 26 years ago in Griswold v. Connecticut -- an "invention."

YoungHegelian said...

I'd very much like to see a scholarly study on how & when the Jewish side of American jurisprudence (e.g Tribe) turned against natural law towards a more positivist approach.

It shouldn't surprise anyone that High-Churchers (RC, Anglican, etc) would be over represented among natural law adherents.

But, not the Jews? Moses Mendelssohn would not have approved.

Canuck said...

Are legal academics now required to only write political pamphlets? No. Oxford published his book and it's a first book. That's peer review and support.

I know it's not an instant download, but can't your acquisitions librarian to buy the book? It would be nice if more academic presses would go straight to e-book. The author may have asked not to go to paperback or e-book in the first year for the royalties.

William T. Sherman said...

http://www.amazon.com/First-Principles-Jurisprudence-Clarence-Thomas/dp/0814731007/ref=sr_1_1?s=books&ie=UTF8&qid=1332001114&sr=1-1

The Crack Emcee said...

Ann,

It's frightening in retrospect to think of the one-sided manipulations we simply endured back then.

...Conservatives were boxed in, and blogging opened the box.


"Back then"? "Were"?

Puh-Leaze. Just because the fight ain't over doesn't mean it ain't still a fight.

Who wants to spend their life fighting?

bagoh20 said...

It's essential to notice which side of the political spectrum relies on the free market of ideas to exercise its voice and which looks to and finds strength in ossified institutions, government and old media where it is swaddled and protected by a hegemony of like-minded high priests and their flock.

Ruth Anne Adams said...

He is the box.

damikesc said...

Conservatives were boxed in, and blogging opened the box.

Professor, things being marginally better doesn't mean it's remotely equal here.

How many Media Matters press releases end up being reported as news on major newscasts? We know NBC is really bad about doing this.

Think about the burial of Herman Cain and compare it to the STILL loving treatment of Obama.

How many polls have Republicans leading polls by simply limiting the samples to have majority Democrats in the sample?

Clarence Thomas is one of the more solid thinkers out there and not the dull doctrinaire theorist that Ginsberg so frequently is. You can't figure out where Thomas will land on every single issue before the case starts unlike, well, the entire progressive side of the court. Yet, academics still seem to believe he's either a dullard since he doesn't talk much during arguments (ignoring what he writes in his opinion) or Scalia's "puppet" (odd, since he and Scalia disagree more than any of the progressive members of the court disagree with one another).

Academics today refuse to re-visit anything they ever believed. I can't remember who said that the most closed-minded person on any issue is a professor who gained his/her beliefs while at college. Will Marxists ever change THEIR belief even with the rather clear evidence of the failure of their model?

somefeller said...

It's essential to notice which side of the political spectrum relies on the free market of ideas to exercise its voice and which looks to and finds strength in ossified institutions, government and old media where it is swaddled and protected by a hegemony of like-minded high priests and their flock.

Don't talk about the RNC, talk radio, Fox News and the DC conservative think tank scene like that. It's mean!

traditionalguy said...

Beautiful analysis, Professor Althouse.

The pre blog days allowed a few learned men's opinions to stop the discussion.

Today's discussions are done back and forth like ping pong, and done hourly.

To counter that loss of control over public discussions, the Progressives have made up an alternate reality. They flood the readers/listeners with a chant of repeated falsehood.

That allows them to use a quick ridicule and joke to be made out of anyone exposing the made up story line. That would be seen as a a partisan act.

So it is required of scholars to write only partisan pamphlets affirming a false factual basis. Even admitting another factual background exists destroys the basis of the control system.

n.n said...

There was never a need to create rights but to preserve them. Neither The Declaration of Independence nor the Constitution were singularly exclusive of any people or individual due to their race, gender, etc. Even slavery was not restricted to black Africans, since it also embraced whites, Indians, and others as circumstance dictated. It was not "original sin", but "original compromise". It was not unique; it was not brought to North America; and it did not begin but continued in America.

If people want to realize positive progress, for all individuals, then the founding documents provide good guidance. Much better than the "positive rights" that have been created over the last century, which have, for the first time in America's history, established institutional discrimination based on race, gender, etc. as normal and not merely circumstantial.

Widely Seen said...

I think Iacobo led you astray...
Try
First Principles: The Jurisprudence of Clarence Thomas by scott douglas gerber (Apr 1, 2002)

Maguro said...

Don't talk about the RNC, talk radio, Fox News and the DC conservative think tank scene like that. It's mean!

Clever! But you can't get full credit because you forgot to use "Faux Noise". It would've been a real zinger then.

Fen said...

"Note that this does not mean I am supporting Clarence Thomas; it does mean, however, that I am not against him."

Guess again. You're now a Heretic who must be cleansed. Confess your sins against Nanny. Supplicate yourself to The One and Gaia and you may be allowed to keep your tenure.

This is why conservatives hold academia in contempt.

Pettifogger said...

Ann,

You wonder why people think of you as a conservative. You don't necessarily vote the way I do, but you are more open to ideas and even-handed in their presentation than almost anyone I know who presents himself as a liberal.

bagoh20 said...

"Don't talk about the RNC, talk radio, Fox News and the DC conservative think tank scene like that..."


Only four venues to eliminate and we can get back to the good ol' days of one side fits all.

Michelle Dulak Thomson said...

Speaking as a Thomson-without-a-p, I wonder how many times Laurence Tribe has regretted that his mother gave him Laurence-without-a-w. Apparently it's just too tricky to remember. Even for people who must cite him constantly.

Fen said...

Yah, he caught that too eh? And he had to reach to add in the ineffectual RNC (what? there is no DNC counterpart?) and his "conservative think tank scene" (again, dwarfed by DC liberal think tank scene).

That leaves him with FOX and AM radio

VS

CNN/Wapo/NYTs/LA Times/Boston Herald/ABC/CBS/NBC/MSNBC/NPR/BBC/AP/Rueters/JournoList etc ad naus.

leslyn said...

somefeller said, "It's essential to notice which side of the political spectrum relies on the free market of ideas to exercise its voice and which looks to and finds strength in ossified institutions, government and old media where it is swaddled and protected by a hegemony of like-minded high priests and their flock."

Huh. I thought this was a conservative blog. Y'all sound like you just got home from exercising your voice at a protest at the Capitol.

Except for the poor victims. Those are familiar.

PatCA said...

Yes, I agree, the blogosphere is a hugely important development in our democracy. Now that the "57 states" stretch from sea to shining sea, the new digital pamphleteer has broken the lock on ideas in America.

Chip Ahoy said...

The book is rated highly on Amazon. 4 and 5 stars. I've noticed that usually this type of book brings in all kinds of reviewers who obviously haven't bothered reading it but pop off anyway. The activist reviewers are getting more and more clever about pretending to have read the book but they're always called out. The review wars can get ridiculous, but apparently this book either preceded that treatment or somehow missed it.

Henry said...

So, Althouse, what do you think of Prof. Michael Shapiro's complaint:

[Thomas] “just cites the Declaration of Independence as if it were a part of the text of the Constitution.

Does Thomas really do that?

Or this:

Justice Thomas simply does not acknowledge or deal with multiple frameworks of the sort that we expect from judges.

True?

Werehawk said...

On the Amazon search issue.

Searching by the title brings up a set of results that are ideologically skewed. It may well be a a search engine glitch of some sort or somebody playing around with skewing the results. Also using the wrong title may be a cause as narrowing the search by putting quotation marks around the search term it will come up under its correct title which is "First Principles: The Jurisprudence of Clarence Thomas". You can also find it when you use the author's name as a search term.

Freder Frederson said...

By the way, I can't find Gerber's book on Amazon or in the iTunes bookstore

Gee, you sure didn't look very hard.

A simple Google search of the title would have revealed that the USC law web article got the title of the book wrong (the initial word in the title is "First" not "Founding"). But I guess that would have rotted the red meat that you threw out for your fans. You just love implying that there is some kind of vast liberal conspiracy to suppress this scholarly tome.

As for his supposed blacklisting. How many Professors of Ohio Northern University (unranked by U.S. News) are invited to speak at USC (ranked #18)? It sounds like his "controversial" book is more like a gravy train than an anchor to his career and he is milking his status as a "martyr", which Althouse swallows hook, line and sinker.

PeterK said...

came across this review from 1999

http://www.firstthings.com/article/2007/01/first-principles-the-jurisprudence-of-clarence-thomas-25

Paddy O said...

“I think it is a very worthwhile venture, but one fraught with potential problems.”

This sounds like academicese for "I agree with it but need to show strong critical distance so that people don't think that I agree with it and that way I can keep my job."

Alex Ignatiev said...

I loved Gerber's book. It was incredibly insightful. I kept it checked out most of my time in law school, because I couldn't afford to buy a copy of it.

leslyn said...

"Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises?"

No.

He got his book published. Thomas is a controversial figure. Is Gerber really surprised that he got critiqued? Naif.

Lem said...

“I think it is a very worthwhile venture, but one fraught with potential problems.”

Can anybody write critically about Thomas and not have a race charge leveled.

Lets remember when Thomas was cornered he had no qualms playing the race card.

btw does anybody here have any qualms ;)

Canuck said...

"He got his book published. Thomas is a controversial figure. Is Gerber really surprised that he got critiqued? Naif."

He didn't just get his book published. It was published by Oxford, not some little academic press.

I don't get the complaint. A lot of people want to get published by Oxford.

Old Dad said...

Gerber's book in question was published in 1998. The first article cited was published on the USC Law blog. It was written, I'm assuming, by a USC law student, although I can't verify that. The article covers a speech given by Gerber at USC to the local chapter of the Federalist Society, a right/ libertarian group.

The article isn't very detailed, but the reporter does try to be balanced. My sense is that in part of the speech, Gerber argues that his book and reputation were politicized, merely because of the subject--Clarence Thomas. That's entirely believable. Thomas was made into a lightning rod and litmus test at his confirmation hearings in 1991, and he still is.

I take Prof. Althouse's point to be that, if the blogosphere had been around in the 90s, that lefties like Laurence Tribe might have at least had counter arguments, and Prof. Gerber might have gotten a bit of blogospheric support.

Anyone who doubts that academia is a lefty wasteland ought to think again.

WALT said...

Thank Goodness I can go onto a blog and not see trooperyork bloviate and try to impress people... You get the impression that he thinks the world is waiting to hear his every comment..just sayinn

Unknown said...

As an academic I can tell you that in my field advisors routinely tell grad students not to do projects about conservatives because it will keep them from getting hired, because the search committee will think they are conservative and not want them in the department.
After just finishing a 2hour training modelu required by the UC system in Ca on harassment policies what sturck me is that political orientation is not a protected category, although for conservatives in academia in many fields it is a hostile workplace.

leslyn said...

@OldDad: What do you know of academia?..nuttin', by your comment.

Old Dad said...

Both the hardback and paperback editions of Gerber's book were published by NYU Press not Oxford--both pretty damned good presses.

The USC web article misprints the book's title as "Founding" not "First Principles."

traditionalguy said...

The Race Card is useful for intimidation. White Southerners especially have it used against them, with the burden of proof being upon them to prove a negative...and they are always ruled guilty anyway.

But there is also the race card that whites still use on strong black men with the same results. That one goes," Everybody knows that all black men are sexual lust hounds out to steal our women."

And a strong black man has the burden of proof to proof upon them to prove a negative...and they are always ruled guilty anyway.

I have seen that version of the race card played on three local Georgia black men: Martin L. King, Clarence Thomas and Herman Cain, and recently a milder version was thrown used on Michael Steele.

Let the Blogosphere arise and the enemies of truth be scattered!

Old Dad said...

leslyn,

Academia politically tilts heavily to the left. No sane person argues that. And I won't provide a link.

The sun also rises in the east. No link for that either.

Canuck said...

ah -I see, his recent book was published by Oxford on the Independent Judiciary.

You get your most recent book published by Oxford means you're mainlined into gold-star academia prestige. That's not somebody who is in a good place career wise. Oxford is picky on who they publish - it's not like they want for academic manuscripts. As I said, a lotta academics want to be published by Oxford.

cassandra lite said...

Funny how Tribe, among others, repeatedly invokes the "separation of church and state", a phrase to be found nowhere in any of the founding documents. Yet Thomas's inferences re the Declaration were frightening to him?

Wally Kalbacken said...

If only blogging had been around back then, what would we lawprof bloggers have said?

Lawrence Tribe wouldn't have become Lawrence Tribe if he had to arrive (professionally) in a blogging era. Like Walter Cronkite, some people were born lucky in terms of time of birth.

Alex said...

Academia politically tilts heavily to the left. No sane person argues that. And I won't provide a link.

Typical rightie, making up horrible lies about things you don't understand you stupid fucking pygmie. Now go shove that in your tolerance pipe and smoke it!

Jess said...


btw does anybody here have any qualms ;)


Nope - go fish!

Rusty said...

Pettifogger said...
Ann,

You wonder why people think of you as a conservative. You don't necessarily vote the way I do, but you are more open to ideas and even-handed in their presentation than almost anyone I know who presents himself as a liberal.


I think Ms Althouse is more of a Classic Liberal. A pre-progressive liberal. Which makes her voting for the current resident even more puzzling. She's obviously too young for menopause so I'm blaming the villainous company she keeps.


Crack.
Which is why we should call them out on everything. They can no longer freely control the narrative.
They like to fight? Then we learn how to fight like they do.
urillso

Pogo said...

Hooray for Ruth Anne!

Steve Koch said...

"Conservatives were boxed in, and blogging opened the box."

Yep. More generally, the internet provides the basis for creative destruction that has transformed/is transforming reporting and will transform education K through doc and entertainment. The internet is the mechanism that gives conservatives a chance to recapture their fair share of the American culture.

An interesting topic is why lefties are so great at the long march through America's institutions (such as education, law, entertainment, journalism, science, etc) and why conservatives have been so pathetic at resisting this long march.

Probably the biggest reason for the lefties' success is that they have systematically, collectively set out to capture American institutions. They have a plan.

Conservatives have been pathetic in conserving American institutions (even though one would think this would be a high priority for conservatives) because they have no plan to do so and are extremely ineffective at acting collectively. The conservative intelligentsia (NRO, for example) is nearly useless in figuring out how to combat the lefty long march through American institutions.

Also hamstringing conservatives is their commitment to classic ethical principles. This puts them at an extreme disadvantage wrt to lefties who have situational ethics (i.e. the ends justifies the means).

Here is a summary of lefty ethics as defined by Alinsky:
(from http://theunionnews.blogspot.com/2008/10/summary-of-saul-alinskys-rules-for.html)

"Rules to test whether power tactics are ethical:
1. One's concern with the ethics of means and ends varies inversely with one's personal interest in the issue.
2. The judgment of the ethics of means is dependent upon the political position of those sitting in judgment.
3. In war the end justifies almost any means.
4. Judgment must be made in the context of the times in which the action occurred and not from any other chronological vantage point.
5. Concern with ethics increases with the number of means available and vice versa.
6. The less important the end to be desired, the more one can afford to engage in ethical evaluations of means.
7. Generally, success or failure is a mighty determinant of ethics.
8. The morality of means depends upon whether the means is being employed at a time of imminent defeat or imminent victory.
9. Any effective means is automatically judged by the opposition to be unethical.
10. You do what you can with what you have and clothe it in moral garments.
11. Goals must be phrased in general terms like "Liberty, Equality, Fraternity," "Of the Common Welfare," "Pursuit of Happiness," or "Bread and Peace.""

If you are boxing and your opponent is doing MMA, most likely you are going to be grounded and pounded.

Freeman Hunt said...

In the middle of reading That Hideous Strength. This reminds one of parts of that.

SH said...

"But the ability to blog these things in real time is something that we now see as an essential check on liberal media. It's frightening in retrospect to think of the one-sided manipulations we simply endured back then."

The rub is that the left actually believe these types of things. I think Ezra Klein just stepped in it on this same topic. No clue that he doesn't know what he is talking about. They convince themselves they are the intelligent ones ergo they are right...