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August 15, 2013


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I'm not sure that the premise is well-taken, in that "senior relatives" notwithstanding, the myth that views about controversial issues were monolithic prevails:
The Civil War wasn't the first inclining that views differed about slavery: by that time, it had been banned in most of Europe and by the original Constitution (in part) and I would bet most informed citizens know this.
Similarly, the "people" of Germany weren't unanimous about H, as he didn't win the vote for Chancellor outright (though, later the "ordinary Germans" can be said to have embraced his policies in large measure). I suspect fewer informed citizens know this.
The policies of ethnic cleansing applied to the Indians in America were never supported universally, though the propaganda of the time had a great deal of influence.
I think the better question for today is to what extent the American people are still propagandized, about the present and the past (e.g., Jefferson and his slaves), and to what extent most buy into the "prevailing wisdom" of this time.
In this respect, and without intending to fully change the subject of the post, I can think of no more monolithic group than the US law academy. Especially disturbing is the extent to which this group is monolithic in so many of its political views, and the extent to which this group attempts to police the views of new entrants.
History teaches, as you point out, that the views of the "people" are often wrong and that a perception of monolithic points of view usually reflects the extent to which the dominant group suppresses views that differ from its own and supports its own views with effective propoganda and intimidation. As the hiring season approaches, perhaps now is a good time to reflect upon this, and the extent to which “conventional wisdom” is often based on present-day bigotries that look specious in the rear-view mirror.


It's a very nice letter, but note the emphasis they place on the role of women in society; and query whether any of them would have married outside of their race. My guess is they would be horrified by much of modern society.


I'm not sure that the fact that a minority may have opposed a given event affects the proposition that "people saw things differently then." There may still be small minorities that believe slavery, Jim Crow, Indian removal, etc. were not bad things. That fact does not mean that, by and large, contemporary morality views those events as reprehensible. No, it's not "monolithic," but I'm not sure how that matters.

Eric Muller

A person is more appropriately held accountable for a conscious choice among debated (and critiqued) alternatives than for an action that the person saw as not chosen or not morally contested. Right?

Surely to that extent, at very least, it matters.

(By the way, what's up with the anonymous replies? Jeez. What's everyone so scared of?)


Well, I doubt that there has ever been a major public policy decision that wasn't debated by SOMEBODY. A significant (although small) minority believes that reptilian aliens are attempting to impose their agenda on the world:

However, I'm not sure I would assign us much blame for failing to heed their warnings.

Eric Muller

But that's a ridiculously easy case, Anon.

Suppose that, 100 years from now, a young person says to her grandfather, "Pop-pop, I can't believe that they did experiments on chimpanzees in the early 21st century!"

If Pop-pop said, "sweetie, you don't understand. People didn't think there was anything wrong with that, and they thought that it was more important to cure human diseases. You can't judge people for doing chimp experiments because people in that society thought they were OK."

Is Pop-pop right?

Orin Kerr

FWIW, I take the "things were different then" argument not to be claiming that there was a monolithic view of the issue in the past, but rater to be claiming that in the earlier era there were different cultural norms about what ideas were considered "on the wall" and what were "off the wall."

Eric Muller

Orin, what's up with outing yourself? Don't you know that to be taken seriously around here, you need to post anonymously?


Suppose that, 100 years from now, serving in a military is viewed as reprehensible, on the same level as we now view slaveholding. Would a young person 100 years from now be right to view current servicemembers as morally equivalent to slaveholders?


“By the way, what's up with the anonymous replies? Jeez. What's everyone so scared of? …
Orin, what's up with outing yourself? Don't you know that to be taken seriously around here, you need to post anonymously?”

Eric: you must not have been paying attention to this blog.

What’s everyone so scared of?

First, some who have commented here have been tracked down, their names and addresses posted for all to see accompanied by scathing attacks, their employers contacted, etc., all in an ADMITTED attempt to damage these persons financially and personally - for daring to post critical (or insulting in some instances) comments about certain issues/persons.

No matter what one thinks about internet libel (and, most of those who throw around the term haven't, seemingly, studied the US Supreme Court cases on this subject), the vindictive nature of some who have power in these respects is palpable. And their actions to take revenge for perceived wrongs (usually, hurt feelings) is actually claimed by them to be morally justified, thus suggesting their conduct will continue.

Second, as I said in my post above, "I can think of no more monolithic group than the US law academy." Although there are, of course, degrees of vehemence and adherence to the "party line” in the law academy, the fact that almost all law profs simply accept certain very debatable propositions as true is well-established.

This is alright, I suppose, but what is striking is the anger and viciousness with which any disagreement is greeted. It is shocking the extent to which so many who post here seem to be completely unable to make an argument without attacking the "other" - by spitting and biting and scratching and kicking below the belt.

Who wants to subject oneself to that abuse?

Thus, the anonymous comments.

Bruce Boyden

anon @7:55pm, you miss the worst part, which is that it's all being run by the Illuminati.


If you are saying that the outing of anonymous posters, contacting their employers, and posting scathing screeds about them never happened, then you, my friend, are the one out of touch with reality.
There actually was a promise to post a policy on this blog regarding anonymity arising out of that debacle.
The justification for the "outing" was posted (albeit elsewhere) and rested on a purported moral justification.
The debate went on for weeks.
Your snide and rude comment is so typical and it is precisely the sort of comment to which mine referred.
To deny that all ever happened is sort of evidence of the mind-set of which I speak. You may enjoy a sort of memory hole mentality and a smug sense of superiority that allows for basically calling another person a liar or crazy simply for answering a question (accurately, I would contend), but don't ask others to.
As to your inept and juvenile attempt to be clever, see the second part of my post above. You don't appear to be skilled at either reasoned argument or comedy.
THe question Eric posed was "why is everyone posting as anon?" I gave an answer. I think my answer is correct. As Eric observed, almost everyone is posting as "anon." Eric asked, "what are you all afraid of?" I answered. I believe my answer is correct.
You may disagree with my answer, Bruce, but your comment isn't a disagreement.
Your comment is a disgrace and disgusting.
Just as I said, " what is striking is the ... viciousness with which any disagreement is greeted. It is shocking the extent to which so many who post here seem to be completely unable to make an argument without attacking the "other" - by spitting and biting and scratching and kicking below the belt.
Thus, the anonymous comments."
Why not dispute the facts, Bruce? If you can't, then don't attack others.
Instead, you should apologize for implying that another is a liar or crazy for daring to answer Eric's question.

Eric Muller

Oh, shut up, anon. Please.

You're not crazy for daring to answer my question, no. But your answer is crazy.

Maybe -- just maybe -- if you were saying horrible, vicious things about someone (and not just any someone), I'd understand your reason for fearing what you describe. I'd still think it was kind of paranoid, but I'd understand it.

But you're not doing that. You're just discussing an idea.

Your insistence on anonymity is just cowardice.


1. I'm glad you acknowledge that I was just discussing an idea and not saying horrible vicious things about anyone. I am trying to get to the issue of civility here on the FL, and, ok, perhaps my response to Bruce was overblown but the "outing" debacle really bothered me and I think a lot of others were concerned as well. (I was neither "outed" nor posted any comments as I recall about it at the time.)
2. When someone is discussing an idea with you, do you respond as Bruce did? Do you then call them a coward and crazy? THis is a blog, yes, but why is it such a haven for this sort of "argument"?
3. I don't think that calling me a coward is civil. It is an insult. But remember, Eric, you are also insulting all the others who post here as "anon." You are calling them all cowards.
Eric, you asked a question, and I tried to answer it. You call the reason I provided "crazy" (another insult).
Eric, please, answer your own question, then:
"By the way, what's up with the anonymous replies? Jeez. What's everyone so scared of?"
And, please provide a link to the FL policy on this issue.
Perhaps if there is no policy (despite the promise to provide one) there is another ground for more and more posters commenting as "anon."
If the solution for you is to label everyone who does so a "coward" then perhaps you should stop allowing such comments.

Eric Muller

Anon, you're onto something. I think I'll just stop engaging with anonymous commenters.

Paul Horwitz

Back to the substance, Eric, I'm with Orin on this one. Certainly it's useful to not have a monolithic view of history, and to be aware of just how long certain ideas may have been contested. But in then making assessments about how realistic or blameworthy people's conduct was in an era, it's important to consider how "on the wall" or "off the wall" particular views were in that period. Or, to use language from couple of great articles by Larry Lessig 1.0, to consider where in the realm of contestability those ideas were during that period. I suppose one who holds a view that judgments about morality are ahistorical and absolute would disagree with this standard of judgment, so that if, say, the abuse of vegetal rights is considered a moral wrong 100 years in the future, then it is a moral wrong now and we should be judged accordingly. I admittedly do not hold such a view, and in general I see little point in making moral judgments about the past.

Eric Muller

Paul (if that's really you), let's leave for another day the last broad assertion about the merits of making moral judgments about the past.

On the topic at hand, though, I don't dispute Orin's (and your) point. I just don't really think it responds directly to mine. Another way of putting the argument I'm making in my post is that while we all know that there are views that were "on the wall" and views that were "off the wall" in the past (just as there are today), people tend to have a too-narrow understanding of what was "on the wall," a too-broad estimation of what was "off the wall," and a too-easy assumption of a lack of awareness of critical viewpoints among holders of dominant views. That has been my near-invariable experience when talking about the past with people who are not historians of the particular time period under discussion. I'm quite surprised to learn (if this is what you're saying ) that it has not been yours or Orin's.


By the way, how many people think dropping the bomb was a bad idea? Have there been surveys?

Paul Horwitz

I think it's me, but given my relativism I'm not entirely sure.

Yes, to the extent that you are making the point that the past is not monolithic, I agree and I would be surprised if Orin didn't. Your substantial and valuable public work on historical injustices may expose you to more people on this issue altogether, and so perhaps the tendency you discuss is indeed widespread. I'm not sure I would have had as much occasion to encounter it; and I've also had some experiences with people who display something like the opposite tendency, ie. to make strong moral judgments about historical events without thinking much one way or the other about the state of thought on the issue at the time. In any event, if that's your focus I don't disagree. I tended to think one or both of your first two comments went a little further.

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