Friday, May 21, 2010
Thanks, Rick, for calling attention to Michael Winters's post responding to yours and mine. He seems to be a friend of yours, so I'm sure he has some worthy qualities. I therefore don't know what to make of the way he conducts himself in intellectual exchanges. Let's examine his behavior in this one. We can go step by step to show how he willfully twists and misrepresents an interlocutor's words in order to create a false impression of what his opponent is saying.
1. He posts a comment on a pair of Supreme Court cases in which he says: "I am no constitutional scholar, and so I will pass on any analysis of the legal arguments." Got that? He expressly excuses himself from analyzing the legal arguments put forward in legal opinions whose soundness and validity he is about to pass judgment on. He does that on the ground that "I am no constitutional scholar." (Has he even read the opinions? He can tell us, but my bet is that he had not read them. He certainly gave no indication that he had done so.)
2. He declares the rulings to be "sound" and the dissents to be wrong. Of the first ruling, he delcares, "the Court got it right." The second ruling, he says, "is just as sound."
3. So here we have a fellow who by his own account---not mine, mind you, but his own---does not analyze the legal arguments, yet declares one side right as a matter of constitutional interpretation and the other side wrong. Why does he not bother to analyze the legal arguments? Because, to quote him again, "I am no constitutional scholar." Note again, these are his words, not mine.
4. I point out on MoJ that despite evidently not having read the opinions, and despite declaring himself unqualified to judge the legal arguments (yet again: it was he, not I, who made that declaration, and he did so in the context of excusing himself from the responsibility to offer an anlysis of the legal arguments on the competing sides of the case), he declared with utter confidence which side was right and which was wrong.
5. I then drew the inference that seems plainly to follow. What inference is that? Notice that it is not that non-lawyers are unfit to analyze legal arguments or offer opinions on constitutional questions. Rather, it was that "he seems to think that the Supreme Court has plenary authority to invalidate laws the justices regard as unjust and uphold laws they deem to be just." I then observed that "it's a common mistake about the role of courts and the scope and limits of their authority under the Constitution, but a mistake nonetheless."
6. At this point Winters responds with this: "If by this Professor George means that no one but a legal scholar is permitted to assess the basic justice of a court ruling, I will look forward to his making that point at next year’s annual March for Life. I deny the exclusive right to judgment by a priestly legal caste which alone can judge whether or not a given decision by the Court meets the standards of justice I think should be met. And every citizen has the same right to question the Court." Here the manipulation and dishonesty begins. He attempts to cover himself against having it exposed by the expedient of prefacing his characterization of my views with the words "[i]f by this Professor George means." But no one will be fooled by that. What Winters suggests to readers I meant is manifestly not what I meant and is manifestly not what I said. To evade my criticism, he is here attributing to me a silly and condescending view that I do not hold and, indeed, firmly reject, namely, the view that only "a legal scholar is permitted to assess the basic justice of a court ruling," and that members of "a priestly legal caste" alone are fit to "judge whether or not a given decision by the Court meets the standards of justice . . . ."
7. So, instead of answering my criticism and engaging in fairminded and honest debate about points on which we (I assume) disagree, he lowers himself still further, stooping to a purely ad hominem argument underwritten by his blatant misrepresentation of what I had said: "As for Professor George’s condescending tone, what to say? If he were unable to write condescendingly, he evidently could not write at all. It is his only key."
Mr. Winters' behavior here is, alas, very much in line with his conduct in the only other case in which I had dealings with him. That was when he misrepresented what I had said in a public exchange with Douglas Kmiec at the National Press Club in Washington, D.C. regarding the Obama administration's policies on abortion and embryo-destructive research. Since I don't know the man, I have no idea what's behind it or what he hopes to gain by conducting himself in this way. It doesn't advance the discussion of points of disagreement and it makes him look bad. If he wants to criticize my views and arguments, it would be far more constructive---and honorable---to engage what I actually believe and say and offer readers his reasons for believing that I am in error.