“Un-Civil” Wars

By Mark Esposito, Guest Blogger

Like many of us, I’ve read the back-and-forth exchanges between our host, Professor Turley, and Wisconsin law professor, Ann Althouse, about Prf. Turley’s Washington Post (WaPo) article proposing an expansion of the U.S. Supreme Court (SCOTUS)  to nineteen members. It’s been a fascinating glimpse into what passes for dialog among American intelligentsia. Professor Turley reiterates a proposal he’s made years before, suggesting SCOTUS needs to keep up with the times and expand to reduce the power of a lone swing voter. Prf. Althouse responds that the reasons for the proposal cited by Prf. Turley are pure BS and that she knows better what’s in JT’s heart. Prf. Turley responds by saying her research into his position and attitude is deficient and laments the loss of civility among colleagues. Althouse replies that she’s just “plain talking” and that her real point was the manipulation of  the timing of Turley’s article by the newspaper even as it drives its own pro-Obama agenda.

Well, that was illuminating. After about 3000 words from both professors, we are left feeling a little cheated. Professor Althouse has completely dismissed the merits of JT’s proposal, calling into question his motives and contending he’s simply court-packing when the opinions from the court won’t suit him. JT meanwhile doesn’t address the only salient point of Althouse that perhaps the WaPo has an agenda of its own in timing the story when it did. It seems reasonable to question WaPo’s timing only days before the pre-scheduled release of a controversial ruling by the Court. It’s part of a pattern of talking past each other, and one that is all too prevalent in public discourse today.

Let me say at the outset that much of my own commentary has been guilty of that about which I complain. And after watching this exchange among genuinely gifted scholars, I ‘m sorry for my approach. Honestly, it’s easier (and more fun) to respond in kind to pointed criticism than to deal with the merits of the opponent’s argument. There is a feeling of personal power in conquering the other guy with a pithy reply, or crushing your opponent with the foible of his mistaken — but likely inconsequential —  fact. It’s human nature, I suppose, to return insult for insult no matter how elegantly phrased or deftly postured or principle-based the reply might seem. Behind it is that old demon, ego.

The problem is that this cheapens the dialogue. When I was young, there was a corny old song based on a Max Ehrmann poem called the Desiderata. There was one poignant line, however, that I remember, “Speak your truth quietly and clearly; and listen to others, even the dull and the ignorant; they too have their story.” And maybe that’s the point of this little musing: Even those considered in our personal arrogance “dull and ignorant” and insulting get a place at the table. Maybe they will surprise us with some unimaginable perspective that our ill-perceived ideological blinders haven’t permitted us to see. Perhaps we can look past the vitriol and find that there is merit to a diametrically opposed point of view even when we doubt the motives, good faith, and even the integrity of the speaker.

I’ve always liked George Bernard Shaw’s observation about apples and ideas:

If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple.  But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.

The great Irish playwright and founder of the London School of Economics who was honored with both a Nobel prize and an Oscar, makes the point that no one is diminished by considering the differing view of another. In fact, the recipient is enriched.  In my own life, I cannot tell you the number of  times a firmly held position gave way to new circumstances that I never expected.  Of course, civility in presentation makes that process easier, but should the idea be dismissed simply because of it was coarsely presented?

Maybe if we stepped back a moment from the battle and looked at the reason for the war, we’d do ourselves a service. The point of the recent debate about SCOTUS was to see if we needed a serious structural change for one of  the three most important governmental institutions we have. Has the exchange of posts added to the debate or simply assuaged the egos of the writers? Like Shaw, can we now say that we have two ideas to mull instead of one?

~Mark Esposito, Guest Blogger

39 thoughts on ““Un-Civil” Wars”

  1. Nal:

    It’s human nature, I suppose, to return insult for insult no matter how elegantly phrased or deftly postured or principle-based the reply might seem. Behind it is that old demon, ego.

    A recent study indicates that it is not human nature, rather it is learned behavior

    The concept that humanity has a violent and evil core is widespread; it is one of the oldest and most resilient myths about human nature. From historical and philosophical beliefs to current popular and scientific beliefs, the view that a savage and aggressive beast is a central part of our nature permeates public and academic perceptions. Given this view, it is a common assumption that if you strip away the veneer of civilization, the restraints of society and culture, you reveal the primeval state of humanity characterized by aggression and violence.

    While there are many reasons for the resilience of this myth, the most powerful one is the simple fact that humans today can and do engage in extreme levels of violence and aggression.

    (Diagnosing The Dogs of War). One wonders if that would apply to Freud’s construct “ego” as well, assuming that the study is of reputable origins.

    If so, maybe we should advance the notion that we have learned to be uncivil, we have not inherited it in our genetic material?

  2. I really haven’t read anything of Wisconsin law professor Ann Althouse’s writings, at least that I recall.

    But I do want to point out that JT has a point founded and fully alive in our U.S. Constitution.

    Let me get right to it, each ten years we are commanded by our Constitution to have a national census.

    The results of the census tell us the size of our government in terms of the number of members of the House of Representatives for each state.

    This principle tells us that size of representation in government, to some extent, is a factor of the size of a state in terms of population.

    Comments up-thread have pointed out how fewer cases are heard by the Supreme Court as a percentage of petitions filed there.

    In other words, they appear to have less and less capacity to handle cases because more and more are being filed.

    Remedies are suggested in the form of shorter recess time, which has some merit.

    But the point of a larger Supreme Court because of a larger nation, larger caseload, and the like, seems non-controversial to me.

    I would suggest that perhaps the court needs to be enlarged for several reasons, especially the notion JT has that the current size concentrates too much power in too few individuals.

  3. David Blauw,
    Welcome with your silver tongue. Smile.

    “Five centers have a tendency to appeal to emotion, a summation of “feel right words” that leads the listener to bond with the statement of the speaker, regardless of whatever illogic is presented. YES I do listen to rush or fox at times. (I always shower immediately after)”
    ——————-

    Love, mom, apple pie, American patriot, American way—–

    Do I qualify?

    If indeed we could see “the evil which lurks in the hearts of men, only the Shadow knows.” You can’t be old enough to have heard that on the antique device know as radio. Good luch with trying.

    A fifty center does miss the mark by at least 50 % of the population in comprehension. But surely most here can understand.

    I prefer that there ARE no evil intentions, only over-developed competitive (life-preserving) ones. Cheney saw each and every deed as preserving something necessary in HIS mind. So did Hitler. Only Stalin seems to have been a genuine sadist.

    Let us agree it is the intent, not the number of syllables that count in either direction.

    And as to intent, how many have a clue to what they really intend, especially when it comes to “competing” in nice salons and in saloons.
    How well the rage is concealed is not the point. That it is there, is the point—-or in rare cases absent.

  4. In general it should be easier to fulfill Mark’s desire for a reasoned debate leading to understanding on a blawg since it’s a written medium. You have plenty of natural ‘pause’ points where you can reexamine what you have written. I put a lot of postings aside on my desktop and later in the day return to them to see if they are actually worth posting based on my perhaps changed understanding of the posting/discussion. I just delete a lot of them.

    I have watched what passes for discussion on television with horror, it is now the point of some forms of debate to simply talk over your opposer, not even to advance your argument but simply to deny their point of view from being stated. Most moderators do not put a stop to that kind of behaviour. (Chris Matthews actually does more to stop that than most moderators IMO.) Television debate is generally worthless IMO.

    But writing is different, one has the ability to purge it of hasty thought and simple reactionary response. What was telling to me regarding the Turley/Althouse incident was that the Professor said he had written a comment on the Althouse blawg but it was not posted. That pretty clearly demonstrated a lack of desire for an argument (in the classic sense) of the issue.

    The kind of writing that characterized Ms. Althouse’s postings indicated that understanding or reasoned discussion/disagreement was not the aim. As another poster pointed out you can only do what you can do, if your opposer isn’t writing with an eye to actual communication, none will take place. Good faith counts.

  5. Great post, Mark. Hope the posters on this blog get the point. I’m more than a bit put off by posts where the only point is telling off another poster and the ensuing rebuttals.

  6. David Blauw 1, June 30, 2012 at 9:47 am


    Fifty centers have a tendency to appeal to the intellect, “the higher seat” of morals. An obfuscateer may easily darken his purpose by appealing to lesser yet naively trusting intellect. Often I believe this is named summation. YES, I do watch Law and Order.

    Five centers have a tendency to appeal to emotion …

    YES, I do watch Law and Order.
    ===================================
    I listened to an interview of Professor Lakoff which informs us that our concept of reason, intellect, and emotion are 18th Century concepts that have been proven wrong:

    Probably 98 percent of your reasoning is unconscious – what your brain is doing behind the scenes. Reason is inherently emotional. You can’t even choose a goal, much less form a plan and carry it out, without a sense that it will satisfy you, not dis­gust you. Fear and anxiety will affect your plans and your ac­tions. You act differently, and plan differently, out of hope and joy than out of fear and anxiety.

    Thought is physical. Learning requires a physical brain change: Receptors for neurotransmitters change at the synapses, which changes neural circuitry. Since thinking is the activation of such circuitry, somewhat different thinking re­quires a somewhat different brain. Brains change as you use them-even unconsciously. It’s as if your car changed as you drove it, say from a stick shift gradually to an automatic.

    (Toxic Bridge To Everywhere). Our foundational concepts of cognition have generally been wrong for centuries:

    “Back in the days of the Enlightenment in the 18th Century when the country was founded there was a view of the mind that took hold … ‘thought is conscious’ … ‘reason is logical’ … ‘reason is disembodied’ … ‘reason is abstract’. What we have learned in cognitive science over the past thirty years is that every single piece is false.”

    (Etiology of Social Dementia, video at bottom). The way to counter that expert opinion is not with non-expert opinion.

    It takes an understanding of the data produced by experiments over those three decades, then published in peer reviewed cognitive science journals, and then a counter argument reviewed by peers then published in the same journals.

  7. I agree with Woosty. Great article Mark. While I am not confident that the public discourse will improve in the near future, the only way it will improve is with all of us being part of the cure.

  8. two thumbs way up Mark!

    you said it all so well……

    and talking about liars, often what sits behind a lie is cowardice….but what was being spoken of, civil discourse and ideas….that is what becomes victim to lies. But we already know that…..

  9. One dollar can buy 2 fifty cent words or 20 five cent words. Assuming words are clear and unambiguous I will take the twenty for a buck.
    It is the bearer of the words that concern me. Manipulation and confusion can be sown with both. How does one evaluate the soul of the speaker, to better judge the soul of their words.
    Fifty centers have a tendency to appeal to the intellect, “the higher seat” of morals. An obfuscateer may easily darken his purpose by appealing to lesser yet naively trusting intellect. Often I believe this is named summation. YES, I do watch Law and Order.
    Five centers have a tendency to appeal to emotion, a summation of “feel right words” that leads the listener to bond with the statement of the speaker, regardless of whatever illogic is presented. YES I do listen to rush or fox at times. (I always shower immediately after)
    Words beautifully and sincerely used are priceless whether copper or silver.
    Tarnished words should tarnish the speaker, but within and without civility, tarnished words are too often accepted as shiny, and the listener willingly tarnishes their soul.

  10. Mark,
    Really enjoyed your “sweetness and light” blawg. The use of sweetness and light as descriptor depends on my inability to recapture my english vocabulary, so I grip the similes which pop up—-in no way pejorative.

    This has been my own aim, but the combat reaction springs

    up ready-armed anyway, when feeling attacked here.

    In real life, I am learning by trying to use the spreading of sweetness and light IRL, that folks of all kinds, met anywhere, have valuable ideas (to me,naturally). This is very new, and is contrary to my former constantly judging of those in my surroundings, with usually negative conclusions on them, their life style, their outlook/fates, etc. A useless and self-damaging practice.

    I see this as closely analogous to what is done, I presume, by many caught up in the debate here. Reading with purpose of 1) whom do I disagree with, 2) whom can I pick a fight with?, etc.

    Do we come here to enjoy the tournament… Do we come looking for new ideas and facts. Do we come here to hear the delight spread through someone’s personally connected narrative as they relate something from their experience of life.

    Is it the castle tournament or the village campfire we seek?

    And seeing a mote in my neighbor’s eye, I am forced to say:
    ARE,
    I think Mark dealt clearly with the dissatisfaction with the non-meeting of two ideas. Unfortunately, imho, it was the lady that brought up rope as the discussion point.
    Hope my view enlightens. Read Mark again is my suggestion.

    Thanks Mark.

  11. There are nine justices. They turn down seven thousand certiorari petitions each year and they do spend time reviewing the petitions before they say: cert denied. They write about 70 to 80 opinions on the merits. That breaks down to about 8 decisions a justice. The justice has a few law clerks to handle some of the research. The justices go home this week and do not come back until October 1st. That makes July, August, September. What they do in these three months is a bit of a mystery. There is no sail docket in Washington DC. They go elsewhere and think and play. So instead of adding another nine justices how about giving them three weeks off instead of three months. They could increase the number of decisions on the merits to about 110. But is that what the system needs? More decisions? They could also hire more law clerks.

    I cannot fathom why JT has this court packing plan.

  12. AY
    Focus, focus, focus….. Wax on, wax off….. Soon you’ll understand why!

    What is with the constant dismissal of Wane. Always overlooked, Always under represented. Mark my Heed, Wane will depart us soon if not given more notice.

  13. Arthur Randolph Erb 1, June 30, 2012 at 8:34 am

    There is NO equivalence between the truth and lies. The problem with our media now is that they treat lies as being as good as truth, They simply repeat one sides lies as being factual and equal to the facts.

    ====================================
    Most folks, and all reasonable folks, are going to agree with the first sentence of your statement which I quoted, as well as the rest of it.

    The problem is that in our divided U.S.eh? our public discourse, as well as our social discourse on more private levels, has suffered a nervous breakdown.

    It is as bad as one person’s truth is another person’s lie, because opinion, which is the basis of it, is not a reputable foundation for “knowledge.”

    I cite to a blog page that quotes an authority laying out the parameters of “Epistemic Dependence”, which basically informs us that what we call “knowledge” is all too often (99%) actually “trust in what someone else said” in place of fruits of personal, competent research.

    This is true of professional discourse as well as non-professional discourse.

    Your discussion of the media jumping the tracks to present a false frame is an example of that happening even to institutions, not just individuals.

    I also cited to a piece that has links to authoritative discussions of another helpful discipline:

    Agnotology “is the study of culturally-induced ignorance or doubt, particularly the publication of inaccurate or misleading scientific data.”

    I like Nal’s picture and the reference to the civil war (which was not civil) then relating it to an actual civil war, at least it is not a shooting war, which is our public and quasi-private discourse.

    Epistemology, Hermeneutics, and Agnotology need to be resorted to as we dampen our emotions and learn the limits of our opinion.

    It takes a nation to heal a nation.

  14. It seems reasonable to question WaPo’s timing only days before the pre-scheduled release of a controversial ruling by the Court.”

    She probably thought she knew how the court would rule, as did a majority of folks, but by and large they were not correct.

    Like readers of JT’s blog, many readers are turned of by self-centered argument that does not cite to authorities, where people could get more than inflated ego and acerbic opinion.

    Opinion is typically overrated, overheated, and overused.

    Citing to authorities and their research is more edifying.

    Then the discourse can center on the strength and weakness of what we know on a given subject.

    Far too much of our discourse is trust or faith based, rather than based on personal research across the authorities.

    There is a discipline available which studies how we might improve our “knowledge”, and another researches how we might minimize our ignorance.

    “I only know what I read in the newspaper” was sarcasm.

  15. These are some good points, but they are only true if there is a good faith effort to be honest in ones own opinion. There is NO equivalence between the truth and lies. The problem with our media now is that they treat lies as being as good as truth, They simply repeat one sides lies as being factual and equal to the facts. This is simply unacceptable and leads to nothing but chaos and irrational behavior. Journalists used to check out the facts and present them to the reader, but since the rightwing was devoid of them, the media got blasted for being “biased”. The media is supposed to be biased in favor of factual reporting, not simply repeating the talking points and press releases of a party.

    In matters of opinion, one must deal with the actual arguments of another and counter or agree with specific points. Going off on ad hominem attacks about the motives and hidden intent of the other simply shows no ability or reason to accept their points since they violate the rules of discourse. I am unaware that Prof Turley was guilty of that, yet Althouse made her attacks without any rational response to Turley’s points. It is absurd to berate JT or even consider Althouse’s contention about the WaPo reason for running the column since it is immaterial to the proposal. To give credence to her rant is to debase dialogue. One cannot have a dialogue with a person who wishes to have none. It is like a person who wishes to hang you, and then having a debate as to the kind of rope to be used to have a dialogue and take into account the killers point of view.

    One has to recognize that there are certain points of view and ideologies with which it is pointless to have a debate or dialogue. Their very existence and ideology in fact explicitly rejects such a thing and we ignore that at our own peril. There are times when it is necessary to fight and dialogue is no longer of use or on point.

  16. Excellent insight….. I recall my favorite…. Not all who wonder are lost…… Each persons perspective enriches the life of the man next to him……

    Unfortunately Mark, so many folks get lost in being seen as correct that they lose the purpose of the fight…..

    Focus, focus, focus….. Wax on, wax off….. Soon you’ll understand why!

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