This is the title of an e book by Arnold Kling, who used to blog at our sister site and now blogs at Askblog. The book, which is well worth reading, argues that conservatives, libertarians, and progressives each have a different language that they use to analyze politics. According to Kling, conservatives view political issues as involving those who favor the institutions of civilization and those who seek to tear them down. Libertarians view political issues as a conflict between those who favor liberty and those who seek to impose coercion. And progressives view political issues as involving a situation where…
Drew Faust, the President of Harvard, is concerned about the plight of free speech on college campuses and hers in particular. She says all the right words about the importance of free speech to a university. But her suggestions about how to secure it are vague and anodyne. For instance, Faust exhorts those at the university to be “generous listeners.” For a college President, that is a bit like a preacher exhorting his congregation to oppose sin.
It is easy to be a generous listener when you are listening to people who agree you with you. But the ideological and partisan homogeneity of Harvard makes generous listening to sharply dissenting views harder, because it is easier to regard them as irrational or evil when none of your friends and colleagues share them. The problem is a structural and institutional one and cannot be solved by sermons.
Thus, if Faust were serious about free speech and free inquiry on campus she would announce some initiatives to make sure that conservative and libertarian voices punctured the campus bubble. A school as wealthy as Harvard could announce a speaker series to bring in a serious conservative or libertarian scholar once a week to speak to the entire university on an issue of public policy or political philosophy.
The latest nominations of ten fine lower court judges makes clear that President Trump is the best President for judicial selection since at least Ronald Reagan, particularly in his willingness to nominate conservative legal academics likely to have extraordinary influence. He has certainly been aided by having a Republican Senate, and by relying on the network of the Federalist Society, but the nominations are his own.
And they will receive almost universal approbation among conservatives, classical liberals and libertarians. That includes those who supported Trump and those who were Never-Trumpers, although it is somewhat embarrassing for those Never Trumpers who said the candidate could not be trusted to select good judges or even to choose justices from the list he announced. As I said before the election, precisely because of his other heterodox stances, Trump would follow through on his unifying judicial commitments.
Appointing judges whose ideal is to enforce the Constitution as written unites almost all strands of the political right. For traditional conservatives, the Constitution represents an anchor against too rapid change. For libertarians, the Constitution contains valuable limitations on government power and protections of rights. For both, originalism protects the rule of law against the latest social engineering fads of the left.
But one might wonder whether this union will survive the increasingly fierce debate between judicial engagement and judicial restraint among constitutional theorists on the right..
Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium. The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.
While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.
A new study of the ideological imbalance in the legal academy, The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are indeed substantially more likely to be left-liberal than white males and be even more left-wing. Racial and gender diversity does reduce ideological diversity.
In a fascinating article, James Phillips has focused on the productivity, citations, and credentials of scholars at the top sixteen law schools. His analysis suggests that conservatives and libertarians are more productive, better cited, and, with one important exception, better credentialed than other scholars. The powerful combination of these findings is thus consistent with the hypothesis that conservatives suffer discrimination in hiring, perhaps particularly in the lateral market when productivity and citation data are very visible. It is as if they are competing in a race with an extra weight on their backs.
I recommend reading the entire article, whose statistics cannot be full summarized nor independently evaluated here. But on what appear to me to be the best specifications, the differences in productivity and citations are not small. Conservatives and libertarians write about three quarters of an article more per year than other professors, both liberals and those of unknown ideology. They garner 13 to 37 more citations than other professors, which is quite a lot given that the average for a year across faculties is only 41 citations. When measured against liberals alone, they are also more productive and more cited, although not by quite as much. They are also better credentialed in matters like membership on law reviews and grade honors in law schools and clerkships, although others are more likely to have a doctorate in another discipline.
Assuming this article is accurate, the normative implication that I draw is that in hiring schools should weigh more objective data, like productivity and citations counts more heavily and take less account of their faculty’s more subjective impression of scholarship.
Every intellectual likes to believe that he is struggling manfully against the hostile zeitgeist, or else what would be the need for intellectuals? His belief that he is not only in the minority but currently losing the battle against the opposing forces of obscurantism and wrongheadedness allows him the pleasures both of self-pity and self-congratulation. He likes to believe that he has suffered for his views (for can there be better evidence of holding the correct opinions than having suffered for them?), while at the same time making a comfortable living from them.
Federal law (the Controlled Substances Act) prohibits the possession, use, sale etc. of marijuana. What to do about state laws, such as Colorado’s, that not only permit but affirmatively license (and regulate) this commerce? For an instructive discussion of the legal problems, see this debate, co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Law School (headed by the excellent Jonathan Adler, who organized and moderated the event). Most conservatives, myself included, find this difficult. On one hand, why shouldn’t states be allowed to have their own laws on marijuana, just as they do…
Over at Powerline, a recent post mentioned an essay on libertarians and conservatives by Robert Nisbet. Nisbet was an extremely throughtful conservative, who was respectful of libertarians (unlike Russel Kirk, whose essay “The Chirping Sectaries” Power Line also mentioned). I reread Nisbet’s piece on the Uneasy Cousins of conservatives and libertarians, written in 1979, and I have to say it holds up relatively well.
Nisbet focuses on both the agreements and disagreements between the two political theories. Among the agreements, he notes four:
1. The dislike of government intervention, especially national, centralized government.
2. The view that equality should be legal equality, not equality of result.
3. The belief in the necessity of freedom, and most notably, economic freedom (although conservatives are more prepared to endorse occasional infringements).
4. The dislike of war and especialy of war society such as during WWI and WWII.
The only one of these that seemed a bit off to me was the last. Nisbet supports his claim with the following:
And let us remember that beginning with the Spanish-American War, which the conservative McKinley opposed strongly, and coming down through each of the wars this century in which the United States became involved, the principal opposition to American entry came from those elements of the economy and social order which were generally identifiable as conservative-whether “middle western isolationist,” traditional Republican, central European ethnic, small business, or however we wish to designate such opposition. . . . [T]he solid and really formidable opposition against American entry [into the two world wars] came from those closely linked to business, church, local community, family, and traditional morality.
It may be so. But to my mind, this element of conservatism seems to be gone. Sadly. (Perhaps the most important remnant is Patrick Buchanan and his opposition to the two Iraqi wars.)