"I think that the people who have done the deep and conceptual thinking about brain death are people with high I.Q.s, who tremendously value their cognitive abilities...."

From “What Does It Mean to Die?/When Jahi McMath was declared brain-dead by the hospital, her family disagreed. Her case challenges the very nature of existence” by Rachel Aviv (The New Yorker):

According to New Jersey’s 1991 statute on death, insurance providers can’t deny coverage because of "personal religious beliefs regarding the application of neurological criteria for declaring death." Alan Weisbard, the executive director of the bioethics commission that drafted the law, told me, “I thought our position should be one of humility, rather than certainty.”

Weisbard had previously served as the assistant legal director for the President’s Commission on death and, like Wikler, he felt uneasy about the result. He said, “I think that the people who have done the deep and conceptual thinking about brain death are people with high I.Q.s, who tremendously value their cognitive abilities—people who believe that the ability to think, to plan, and to act in the world are what make for meaningful lives. But there is a different tradition that looks much more to the body.” The notion of brain death has been rejected by some Native Americans, Muslims, and evangelical Protestants, in addition to Orthodox Jews. The concept is also treated with skepticism in Japan, owing in part to distrust of medical authority. Japan’s first heart transplant, in 1968, became a national scandal—it was unclear that the donor was beyond recovery, or that the recipient (who died shortly after the transplant) needed a new heart—and, afterward, the country never adopted a comprehensive law equating brain death with the death of a human being. Weisbard, a religious Jew, said that he didn’t think “minority communities should be forced into a definition of death that violates their belief structures and practices and their primary senses.”

Simulblogging: "Political Correctness, Academic Speech, and Free Speech on Campus."

I'm at this debate, which I mentioned the other day, between Greg Lukianoff of the Foundation for Individual Rights in Education and UW polisci prof Howard Schweber, here at the University of Wisconsin Law School. I'll just jot down some notes as the spirit moves me.

1. Lukianoff. He's going to talk fast. Keep up. Some people think PC is a relic of the 80s, but really universities do repress what makes them uncomfortable. Not so much political speech, but speech that offends liberal values about diversity. He reels out a lot of examples of campus speech codes and the way they've been applied. PC is alive and well, and it harms the "atmosphere for debate."

2. Schweber. Is there a right to be offensive at the university? You wouldn't get away with this sort of thing in the workplace. (For example, posting a flyer saying overweight women should take the stairs for your convenience.) Academic freedom doesn't mean you have a right to be obnoxious, only that you can choose your viewpoint. The real threat comes from the right, suppressing speech because of ideology.

3. Schweber makes the distinction between crude drunken "conduct" and real academic freedom, which is justified by the positive goal of enabling people to oppose "the current regime."

4. Though Lukianoff -- lucky enough? -- said he was going to talk fast and did, but Schweber talked much faster.

5. The first question from the audience is about Kevin Barrett teaching the 9/11 conspiracy theory in his class here on Islam. Schweber says it's an easy case because he was teaching an unpopular idea critical of the government. The important line is between "Fuck you" and "Fuck the draft."

6. Lukianoff says the UW got everything wrong on Barrett. They objected to his speaking on his ideas outside of the classroom, and inside the classroom, they felt unable to dictate the scope of what subjects can be covered in the class. By allowing him to teach what didn't belong in a course on Islam, they got him the attention of mainstream media, and then they tried to stop him from taking advantage of these opportunities to promote his ideas outside of the classroom. That's exactly backwards.

7. Schweber agrees.

8. Alan Weisbard has the next question. "We're living in a time of blogs... AutoAdmit... Googling." People are afraid of being identified in public speech. His question is about preserving the right to anonymous speech.

9. I realize what bothers me so much about what Schweber is saying. He doesn't value the form of expression, only the content. He thinks what people have to say can be reframed in more polite terms. But I think the form matters, that there is value in the very sound of disrespect, mockery, contempt, and offensiveness.

UPDATE: The Badger Herald covers the debate.

Teaching about sensitive subjects.

If you're wondering why I'm not writing anymore about the Kaplan story, it's that my approach to it has always been to comment on articles published in mainstream media. (If you don't know what I'm talking about, clicking on the "Kaplan story" label below will collect all the old posts about it.) But you might be interested to know that one response by my school was a forum, held on Tuesday night, where faculty and students discussed the challenge of teaching about controversial subjects. I have worried that the reaction to Professor Kaplan's classroom statements (about the Hmong) would cause teachers to avoid the subject of race:

It would have been so much easier to teach using simple, straightforward lecturing, with every sentence carefully composed, with a sharp eye on the goal of never giving anyone any reason to question the purity of your beliefs and the beneficence of your heart.

Your colleagues may sympathize with you in private, but most likely they’ll be rethinking this idea — heartily promoted in law schools since the 1980s — that they ought to actively incorporate delicate issues of race into their courses.

The forum seemed designed to address questions like this. I'm not going to write about the forum. In fact, I didn't attend the forum because I saw it as too much of an internal confabulation to write about here, and I didn't want to use the material that I'd be privy to.

My colleague Alan Weisbard, however, did decide to attend and to blog about it. You can read what he wrote here. I thought you might find this part especially interesting:

[M]any students, of varying backgrounds and perspectives (at generally liberal UW, this was expressed most poignantly by (white) students, male and female, identifying themselves as "anti-affirmative action" and/or as "Republican" (whatever that is)), felt reticent to express their true views on controversial subjects because of fear of negative repercussions from fellow students (and gave some chilling, in multiple senses, examples). Some present expressed considerable doubt that faculty could do much to change this: Peer culture may be much more influential than anything faculty do or don't do. Others disagreed, and there was some constructive, if largely disembodied, discussion. At least we were talking, and complexifying the oversimplifying assumption of faculty omnipotence and sole responsibility. Not much talk of student responsibilities to the collective learning environment, however.

Alan has some more posts on the subject over there which you can click around and find.

I should think that affirmative action -- an extremely important topic in constitutional law -- is the single most difficult thing to discuss openly and vigorously. Don't you agree? I suspect that in the great majority of law school classrooms, perhaps in nearly all of them, students feel compelled to act as though they support affirmative action and dare not say anything to the contrary, even if the teacher seems to bend over backwards to encourage debate.

Professor Kaplan caused an uproar while teaching about race from a left liberal position. I really wonder what the reaction would have been if he had been viewed as a conservative, who was not presumed to have the generally approved set of political beliefs. On the other hand, I think that the only reason he got into the position where he ended up saying some inflammatory things -- and I still don't know exactly what they were -- was because he was teaching from a left-wing perspective.

As to the students who feel chilled, I think it's easy to say to them they should take more "responsibility" in the "collective learning environment," but I think the teacher has got to be the teacher. Students are going to care what other students think about them. Their social relationships matter to them, and their interest in their standing among their peers deserves respect. The teacher needs to structure the classroom discussion in a way that gets the whole range of opinion heard. The most obvious way for a law teacher to do that is to call on students to articulate the arguments of the various parties and judges in particular cases and to require them to defend those arguments and to respond to other students who have been called on to articulate other arguments. It's a mistake to think that a lot of class time should be consumed by students professing their personal beliefs, endorsing policies, and proclaiming politics.

But by all means, talk about such things. There must be a thousand bars and cafés in town where you can carry on the conversation late into the evening.

Senator Feingold lectures at the Law School.

The topic: "Upholding an Oath to the Constitution: A Legislator's Responsibilities." Russ Feingold spoke about his devotion to the oath he took as a senator to uphold the Constitution and the second oath he took for the Clinton impeachment trial. Feingold was the only Democratic senator to vote against the motion to dismiss the impeachment. He applied a legal standard to the motion and had to vote the way he did because he could not say that there was no chance of proving the charges against the President. Democratic senators admitted to him in private that he was right. "It was a vote where I tried to move beyond partisanship."

Feingold talked about his campaign finance reform law, which he cared about because he was "tired" of hearing that politics was "about money, not ideas." He reminisced about the court case, challenging the constitutionality of the law, and described sitting through a nine-hour deposition conducted by the great First Amendment lawyer Floyd Abrams. Abrams began his questioning praising Feingold to his face for his reputation for upholding the Constitution. As Feingold put it later in the question session, Abrams spent the nine hours "trying to confuse me." I'd say the praise that he started off with was a deliberate effort to unnerve the senator. Feingold could hold his ground, he thought, because he believed his position was consistent with his oath to protect the Constitution, because "we spent a great deal of time crafting that bill" to avoid constitutional violations. He respected the Supreme Court's precedent on campaign finance regulation, even to the point of regretting a vote he had cast early on in his career about amending the Constitution to overrule Buckley v. Valeo. The First Amendment should not be diminished, he thought, even by the amendment process.

He spoke about the Patriot Act and his anguish at the speed with which it was pushed through the Senate, beginning with a closed door hearing on October 3, 2001. After Feingold voiced his civil liberties concerns, Attorney General John Ashcroft telephoned him, and, in that conversation, Ashcroft, according to Feingold, agreed that Feingold had raised many reasonable concerns, but that he still wanted his support. Later, according to Feingold, "the White House overruled Ashcroft."

[NOTE: The remainder of this post is an attempt at reconstruction of text that disappeared mysteriously on April 23, 2005. To do the reconstruction, I went back to my handwritten notes and also used two paragraphs that were quoted on Instapundit.]

Feingold objected to this sort of "legislation on the fly." Many members of Congress admitted to him that they had not read the text of the Patriot Act. A procedure was adopted that barred amendments, and the text had not gone through the Judiciary Committee, so there had been no chance to call attention to constitutional problems. Feingold decided to oppose unanimous consent because he "felt he had no choice" and he needed to uphold his oath to the Constitution. He described a difficult conversation he had on the floor of the Senate with Tom Daschle as "suffocating. " Feingold offered his amendments, and Daschle oppposed him, in what Feingold called a "frightening scene." With deep disapproval, Feingold quoted Daschle as saying "My argument is not substantive, it's procedural."

In his work on the Subcommittee on the Constitution of the Senate Judiciary Committee, Feingold said he votes against amending the Constitution. He thinks it is better to craft legislation so that it is constitutional (as in the case of campaign finance reform) or simply to reject the amendment as not important enough (as with flag burning).

He ended his speech with the observation that it has been complex to keep his oath to uphold the Constitution and that he has "struggled constantly to get it right."

He took a few questions from the audience. The first was from Professor Alan Weisbard, who asked if a legislator has a duty to interpret the Constitution independently from the courts. Feingold said that there was an obligation not to pass the law if it was clearly unconstitutional, but that he didn't need to be certain or to predict what the Court would say. He could vote for the law as long as he had a good faith belief it would be upheld. "The presumption is it's constitutional unless somebody tells me it really can't fly." This seemed odd to me and made me rethink his opposition to the Patriot Act. Where was the presumption? Must it not be that he opposed the Patriot Act as a matter of policy?

My colleague Jim Jones asked him what he does if he's convinced the Supreme Court has gotten a decision wrong. Feingold said he tries to craft the legislation to avoid the constitutional problems and that he also looks to elections to change who is on the Court. Feingold seemed to be thinking again of the campaign finance reform law, which I don't think was what Jones had it mind. Jones was, I think, concerned about the perniciously wrong cases, like Plessy v. Ferguson. With some more prodding, Feingold said he said he believes the cases that permit the death penalty are wrong, but that the new death penalty case (making it unconstitutional to execute a person who committed his crime as a juvenile) is an "exciting example of how the Constitution can evolve." Jones, still not satisfied, asked whether he was just counting the Justices' votes, and Feingold said he mostly had to accept that they are right, for example, with the Line Item Veto case. "I respected it ... that's the normal situation," he said, but he acknowledged that there are "extreme situations" he'd treat differently. He then joked that this really was like being back in law school, which drew a big laugh from the crowd.



I would never have said this out loud, but I couldn't help thinking how interesting it was that Feingold shaped his whole lecture around the sanctity of the oath, when just a few days ago he announced that he was getting a divorce, his second. Was I the only one who thought how strange it was to hear a man piously invoke a passionate fidelity to an oath when he had -- so conspicuously -- gone back on the marriage oath twice?

But I like Senator Feingold. I do think he's a good man. I don't presume to know what happens to people in their marriages, and I am divorced myself. Nevertheless, he could have discussed his devotion to the Constitution from some perspective other than the fact that he'd sworn an oath. Taking an oath to the Constitution, after all, is not the strongest reason to support it.

UPDATE: Many of the commenters think it isn't fair for me to compare marriage vows and the oath to support the Constitution. And one commenter asks the interesting question: "What on earth can account for the view that amending the constitution is wrong but that allowing the constitution to 'evolve' under the watch of political judges (with no Constitutional basis for this evolution) is preferable." Here's the answer I give in the comments:

Thanks for making me think about that! There really is an answer. The idea is that it's terrible to amend the Constitution because you're taking away something that's there. We've been revering the First Amendment (to take the prominent example) all this time, and it would be unseemly to use political power to remove it as an obstacle. But if a court would just say, that obstacle you imagine really doesn't exist, then you haven't wielded political power against the revered document. Of course, [Feingold] still supports using political power to stock the courts with people who will perceive the evolution he wants them to perceive. It all just works so much better if you can get a judge to do it for you. Plus it is very hard to amend the Constitution, so if you try, you'll probably fail, and your enemies will rake you over the coals the whole time -- for wanting to change the Constitution. Acting through the courts is so much more politically palatable. And the beauty of it is that you can continue to lavish praise on yourself for your devotion to the Constitution.