So this is really interesting: The Court, according to John McGinnis, doesn’t really deliberate about the law when it comes to high-profile cases. It functions instead as a “cognitive elite”— the aristocratic part of a mixed regime. It’s job, I guess, is to supply wisdom and virtue to counter popular and legislative ignorance and expediency. First off: I don’t know about the virtue part; after all, they were trained to be lawyers and not philosopher-kings. And if what they were doing were “cognitive” in the sense of listening to reason, why do they so often divide 5-4 on the high-profile cases? All reasonable men and women should assent to the truth. when they hear it.
Via Eugene Volokh, I came upon this article in the American Prospect by feminist advocate and retired federal judge Nancy Gertner, the author of “In Defense of Women: Memoirs of an Unrepentant Advocate.” The article, which criticizes the new Harvard sexual assault policy, is well worth reading. While it covers some of the same ground concerning the biased university policies that I discussed in prior posts, it also has a fascinating discussion of the problems with the criminal justice system as well. This is important because it is often recommended that these sexual assault cases be handled by the police and the courts.
I had not known that the phrase “check your privilege” had become common on college campuses until an opinion piece by Tal Fortgang, a Princeton freshman, went viral. Fortgang observed that his left-liberal classmates deployed it in an attempt to silence his arguments about welfare or the national debt. His essay in response detailed his family’s struggles, showing that privilege did not capture the complexity of their lived experience.
Fortgang writes with passion, but his piece does not get to the root of what is wrong with the phrase nor does it show how it reflects more generally the pernicious norms that infect many of our universities. (I consider the norms of society as well as the law of the state a fit subject for this blog). Even if his family’s name had been Rockefeller or Frick, this kind of attack should not be welcome in intellectual discourse.
“Checking your privilege” does not impugn the logic or evidence behind any argument, but calls attention to the identity of the speaker. It is a variation on a classic fallacy–the ad hominem argument. Plato’s contentions in The Republic are not in need of reformulation because he was an aristocrat. Rousseau’s claims are not refuted because he treated his lovers and children badly.