Adam MacLeod on the rise of morality in public discourse


Dan Churchwell: Welcome
to the Acton Institute. Uh, my name is Dan Churchwell. I’m the director of programs and
education here at the Institute. And it’s my pleasure to welcome you to
the first act in lecture series of 2020. We’re very thankful for our benefactors
who have supplied, uh, the funds to underwrite this series of events. And, uh, it’s a joy to
introduce Adam MacLeod. Adam Macleod is a professor of law
at Faulkner university in Alabama. He’s the author of multiple books and peer
review journals, essays, and book reviews all throughout the United States,
the United Kingdom, and in Australia. His most recent book,
which launches next week. We couldn’t make the schedules work, but
his brand new book of which this lecture is based launches next week. It’s called the age of selfies, reasoning
about rights when stakes are personal, and it’s available for preorder right
now, and it will launch next week. You can find it at Amazon or
Rowan and Littlefield publishers. And he will explain more
about that book later. A professor MacLeod teaches courses
concerning property, intellectual property, jurisprudence,
and private rights theory. He’s also taught at the end, been
accepted into the James Madison program of graduates, a graduate seminar
at Princeton university. He contributes to journal of news and
public opinion, such as the Washington times, the new Boston
post and public discourse. Professor MacLeod received his BA from
Gordon college and his J D Magna from the university of Notre Dame law school. Professor MacLeod lives in Montgomery,
Alabama with the joys of his life, his wife, and five daughters. So please welcome with
me, professor MacLeod. Adam MacLeod: Well, what a joy it is
to be back at the Acton Institute. Uh, you know, every time I participated in
an Acton event, I always learn more than I teach. Um, if I were a more clever economist, I
could come up with a quip about Pareto, optimal exchange of
knowledge or something. Um, but I’m a lawyer, so we don’t do that. Um, I’m here to talk about public
discourse and the problems in public discourse today, which is a
bit of a dangerous endeavor. Um, it’s, today, these days talking about
civic discourse is not for the faint of heart. As I’m sure you are aware, on some
campuses, notably in recent months, Middlebury college and UC Berkeley, it has
actually become a contact sport, and even when it doesn’t lead to physical violence,
public discussion about important civic questions is often more pain than gain. And so many people, particularly young
people I’ve found just don’t do it. So ask a student whom you know who’s
enrolled in a high school or a college or a graduate program, and who doesn’t adhere
to the prevailing orthodoxies in that program, whether they feel free to
challenge those prevailing orthodoxies in the classroom. And I suspect they’ll tell you that
they don’t, or just reflect on your own experience. Think of a moment recently when you found
yourself in a public place where cable news or talk radio or NPR was
playing in the background. Um, and think about how
you behaved yourself. If you behave as I do in those situations
for example, at a, uh, gate terminal, uh, subjected to CNN’s particular brand of
journalism, surrounded by strangers, um, you will try to make yourself
as inconspicuous as possible. You’ll try to avoid making eye contact
with people, keep your, keep your facial expressions as an expressive as possible
and generally behave like a child might if she accidentally fell into a lion’s den
at the zoo, um, or maybe someone on the sidelines of a collegiate
basketball game in Kansas. Um, I personally particularly try to avoid
the guy who’s shaking his head and talking about those people. I don’t know if I’m one of those people
and I don’t want to find out, because I left my body armor at home. So we have a problem with public discourse
today, and this problem is very complex. I’m going to focus on
just one aspect of it. It’s an aspect that I explore at some
length in this book, The Age of Selfies, which Dan referenced, and the problem that
I want to take up is that we express many of our more, many of our disagreements
today on important civic questions in moral terms as moral disagreements. But in general, we do not
understand moral arguments. That’s what I think is
part of the problem. If I’m right about this, then in the short
term, we should stop trying to agree. Our goal should be more modest. We should learn first how to disagree. Well, how do achieve genuine disagreement? And once we’ve understood
our disagreements. I think we will discover that we can live
peaceably with each other in spite of many, though not all of our disagreements. Now, this is not a call to incivility. To the contrary, to be truly civil to each
other, we need to understand each other. To state another person’s view accurately
and disagree with it is far more civil, I think, and far more difficult than
to ignore our radical differences. We need to respond to the concerns that
actually motivate people, rather than a tribute to them motivations that
might be far from their minds. We must, in short, learn to disagree well,
for some of our substantive differences are so radical that being
neighborly just isn’t enough. By our language, we indicate that we
disagree about non negotiable principles: what is good and what is evil. We speak to each other as if we are as
divided today as Americans were in the 19th century about slavery. So we should not be surprised if our
differences defy even our most charitable and best informed efforts
to reach consensus. The stakes could not be any more personal. We disagree both about what we should do
and about who we are becoming as people. So listen to this bit of practical wisdom
from a prominent Congresswoman: quote, the question of marginal tax rates as a policy
question, but it’s also a moral question. What kind of society
do we want to live in? Are we comfortable with a society where
someone can have a personal hella pad while this city is experiencing the
highest levels of poverty and homelessness since the great depression? I’m not saying that Bill Gates or Warren
Buffet are immoral, but a system that allows billionaires to exist when there
are parts of Alabama where people are still getting ringworm because they don’t
have access to public health is wrong. Now, a generation ago, polite company
might’ve blushed at such talk. Morality was for the church, the
synagogue, the family dinner table, maybe the bedroom, if you’re
into that sort of thing. Arguments about moral wrongs were often
heard just outside the halls of cultural and political power, mostly from religious
conservatives such as Jerry Falwell’s moral majority. But the really important pressing
questions in public life were supposed to be resolved exclusively on the basis
of neutral reasons, such as democracy, efficiency, and equal
protection of the laws. Today, by contrast, the vocabulary in
rhetoric of mainstream thought leaders are openly moral. So to put the matter somewhat pointedly,
the language of representative Alexandria Occasio Cortez, which I just read to you,
sounds less like that, a former president Bill Clinton, than it does like that of
former Alabama chief justice Roy Moore. So the project of civic discourse in our
age of moralism, I think, is both pregnant with promise and packed with peril. On one hand, moral reasoning
can be productive if done well. Discourse about good and evil, right
and wrong has certain advantages over discourse that is confined
to neutral political ideals. It gets much closer to the sources of our
disagreements and therefore to what really matters to us. We had our differences during the era
of political neutrality, but we stopped achieving genuine disagreement
and simply became disagreeable. It’s much better, I think, to understand
each other’s fundamental concerns, to demonstrate mutual respect for each other
as human beings, bees and- beings who reason about what matters. We must undertake to comprehend and
respond to the reasons for which people actually act. We should not attribute to other’s
motivations results and consequences they may not intend. So when we encounter, for example,
a person who expresses alarm over anthropogenic global warming and wants to
cut carbon emissions, uh, we should not- we should take their
motivations as we find them. It’s fair to point out to the person that
there are costs to overreacting, that there are dangers of
increasing government’s powers. But we should not attribute to them
a motivation to be authoritarian. Similarly, when we encounter a person who
believes that male and female are given in nature, and who cannot in good conscience
cater a same sex wedding, we should not attribute to them an intention
to discriminate unlawfully. It is fair to point out that certain
people will take their view as expressing moral disapproval or disapprove of them
personally, but we should not portray them as a bigot. On the other hand, many practical
questions facing us today are not mere nearly as simple as our
moral rhetoric suggests. Reasonable minds disagree about many
important questions, and where a practical question emits more than one reasonable
answer, to make a moral claim can be a way of cheating to end what should be a
longer and more detailed conversation. Moral claims are tempting because they
are a superior kind of normative currency. Over and against pragmatic considerations
or political ideals, a moral claim as a sort of trump card. To say this is the right thing to
do, is to say that others are wrong. Maybe they are wrong, but we should have
reasons to think so, and we should be open to those reasons. Furthermore, our moralistic expressions
today are often personal, sometimes even self righteous. Moral arguments often concern not only
ideas, but also our character as people. They address what is right and wrong
to do, and so they contain implicit, sometimes even explicit
judgments about wrong actions. And because wrong actions are performed
by people, including many of the people engaged in moral discourse, moral
claims often imply personal judgements. As a result, moral discourse often
devolves into personal condemnation. Increasingly, we describe each other not
only as misguided or mistaken, but as wrong, or shameful, or even bad people. In fact, doing wrong things
can make us bad people. This is a legitimate concern. Someone who lies can become a liar. He who objectifies women can
become a sexual predator. Concern for moral integrity is a
proper part of moral discourse. But if our moral rhetoric is inflated,
then our concern for integrity will also be overwrought, and that
harms our discourse. No one, no matter how tendentious his
beliefs and vulnerable his opinions, will ever be persuaded by people who convey
their belief at front that he is evil. Only a very conscientious and discerning
people can avoid the temptation to use moral rhetoric as a weapon. And only a very courageous and learned
people can avoid falling prey to its power. The truth is that, on the whole,
we are not those people today. I think we’re not well-equipped for this
age of moralism, particularly having pushed moral education
out of civic education. We’ve deprived ourselves and our young
people have the resources they need to reason well about the
questions that matter today. I think this is an important and
overlooked reason why we do not trust our neighbors to hold political and cultural
power, to educate our children, to make important decisions in our
civic and cultural institutions. One recent controversy
illustrates the problem. A debacle ensued when Google announced
the launch of an ethics board to guide its responsible development of
artificial intelligence, known as AI. This was an admirable effort by Google
aimed at one of the most pressing problems of our time, and that is that many of the
decisions that affect our lives, which used to be made by human
beings, are now made by AI. AI is a powerful tool that
can be used for good or evil. Google did well to commission a diverse
board of accomplished thinkers to consider how to prevent AI from
violating our basic commitments. But within days of Google’s announcement
about its advisory board, members of the board began to resign. One of the board members appointed, the
president of the conservative think tank holds the view that men and women
are different by nature and are not interchangeable. And she has publicly expressed concern
that ratifying the gender identities of men who identify as women might
harm the equal rights of women. Some other people hold the view that sex
should not determine a person’s gender identity, that a biological male must have
the right to identify as a woman and be treated as a woman. And reflecting this view, a couple
thousand people signed a petition to have the think tank president removed
from Google’s advisory board. By appointing her to the advisory board,
quote, “Google elevates and endorses her views, implying that hers is a valid
perspective worthy of inclusion in the decision making,” the petition asserts. And that, they say, is unacceptable. Notice this charge left
Google no neutral ground. The think tank president did not violate
anyone’s Liberty or equality in the classic sense of those ideals. She has a radically different view of
human nature and sexuality then her critics. She was willing to serve on Google’s board
and to discourse with those with whom she disagrees, but she could not in conscience
affirm something about human nature she believes to be false, or deny
something she understands to be true. Now, from the perspective of her critics,
reviews of human nature are morally illicit, just like the views of racists. It does not matter that she
harbors no ill will toward others. The effect of her expressed views is that
she reflects, is if she refuses to affirm others genders identities. That sort of intolerance
can’t be tolerated. Now these competing views
cannot be reconciled. They’re inherently incompatible. They are X and not-X; like
existence and not existence. They cannot both be affirmed. And both views are sincerely held. Some people really believe that a woman
is biologically a woman, and others really believe that a woman might
be trapped in a male body. Now, until recently, we would have
resolved these differences by reference to political and legal principles of Liberty
and equality, and most people would have shared a common understanding
of what those principles are. The principle of Liberty until recently
meant that everyone is presumed innocent and left alone to live their lives until
proven otherwise; no one may be subjected to imprisonment or other liability unless
and until they’re proven to commit it to legal wrong. The principle of equality meant that
everyone is entitled to equal protection of the laws, and that public officials and
certain people and public accommodations should not discriminate against
people based on immutable personal characteristics such as race and religious
conviction, but only on the basis of actions and choices. As long as the members of Google’s
advisory board were willing to agree to those principles, and it seems they were,
they could address many potential misuses of AI. But that consensus has now unraveled. Many people now think that Liberty is not
merely a political principle, but also a moral principle. It means not only that everyone should be
presumed innocent and left alone to live their lives, but also that everyone should
have as many opportunities in life as possible. Whereas under the classical view of
liberty, it was enough to refrain from causing wrongs to others, under this
new idea of liberty, some people have obligations to provide
opportunities for others. The principle of equality has also
changed into something more demanding. Unlawful discrimination used to
mean intentional discrimination. Thus one could avoid violating the
principle of equality simply by ignoring other people’s irrelevant personal
traits such as race and gender dysphoria. As long as we made decisions about others
based on their choices and actions, it didn’t matter what race they were, what
convictions they ex- espoused, or how they identified. Now, many people think that
equality has an affirmative aspect. It’s not enough to avoid
discriminating intentionally. Now, one has an obligation to ensure that
one’s decisions do not have disparate effects on others. So someone who makes a decision without
regard to race might be held responsible for racial discrimination if racial
minorities are unintentionally affected by the decision in disproportionate
numbers, for example. So equality is taken to mean not just
equality of respect, but also equality of result. So in these ways, even our basic
commitments to liberty and equality have become morally controversial. In the short term, it’s difficult to see
any reason resolution to our discourse that will satisfy everyone. So the project then I think is to
rebuild the resources of moral reasoning. We’re not going to get anywhere trying to
prop up the crumbled edifice of political neutrality. I think this project has three phase-
has a number of phases, but in the time remaining, I’m going to discuss three of
them – three phases of this rehabilitation project. Each draws resources from something
called the natural law tradition. It’s an, it’s an American tradition
affirmed at varying times to varying degrees by John Adams, Abraham Lincoln,
Robert Jackson, Martin Luther King, Jr. and others. But I think it’s a tradition that many
Americans do not understand well enough today. The first deficiency is moral skepticism:
the idea that moral claims do not correspond to or orient the mind
toward knowable objective reference. Now, this affliction is most obvious
in postmodern theories and practices. Um, obviously the one that everyone comes
to mind immediately is intersection- intersectionality theories. Um, but I think it’s
actually more pervasive. I think it even afflicts some, uh,
afflicts some conservative and libertarian groups who reject customs and conventions
that enable us to get along in a world of moral indifference and
imperfect information. Moral skepticism generally leads
to authoritarian proposals. Many moral skeptics want to derive
moral imperatives from some theoretical understanding that is available only
to members of their groups in a sort of Gnostic sense, and then they want to
impose those imperatives on others to whom they’re not available by reason. To remedy this deficiency, I think
it’s enough to pay attention to our own practical reasoning, which reveals that
we really do believe there are important goods at stake and our public
controversies, that we share many of those goods in common, and that we
know the value of those goods. The fact is that we all reason about what
to do; we all ask practical questions as we go about our lives. And this fact that we ask and answer
practical questions reveals that we are not moral skeptics in practice,
though we are in theory. For example, philosophers and other
experts can articulate lots of clever theoretical arguments that human
life is not intrinsically valuable. But notice in practice, we do not demand a
justification of someone who saves another person’s life. We see the point of that act
in the value of the life saved. We do demand a justification before going
to war, and we demand that justification to include as one of its central
premises that human lives will be saved. So that some academics and intellectuals
maintain theories of moral skepticism about the value of life does not give
us sufficient reason to be skeptical. Practical reasoning is often a surer
guide to truth than theoretical reasoning, because it’s less tolerant of error. If I come to the conclusion that the
United States constitution was ratified in 1890, or their – that a water molecule is
comprised of four atoms, I will be no less wrong than if I conclude that the beef
sitting in the back of the refrigerator for the last three months is not
rancid, but I will be less sick. So we can begin to make our public
discourse more civil and productive by reframing our controversies in less
abstract and more practical terms. So consider briefly controversies
about immigration reform. As long as we stay at the level of
abstract or theoretical reason, it’s easy for us to remain in
unproductive controversy. Some people on one side to- insist that
the right to immigrate is a fundamental right, and that anyone who supports
immigration enforcement lack sympathy and concern for refugees
and the least well off. Some people on the other side insist that
failure to enforce our immigration laws to the letter is a threat
to our national security. From here, matters become
heated pretty quickly. But notice what happens when
we focus on actual cases. So consider the issue as a practical
question about which persons should be admitted to our country. Person A is a refugee who suffered
religious persecution in his home country. He adheres to an historically peaceful
religion such as Hinduism or Judaism, and as a healthy, intact family. He’s well-educated, he’s
skilled in a useful trade. Person B is a convicted criminal,
would known terrorist sympathies and no established family commitments. Now put the question, the practical
question, whether we should admit or exclude those persons. By comparing these hypothetical applicants
for asylum, we expose the implausibility of some of the more extreme abstract
claims that people often assert in debates about immigration law. The practical question, what to do about
the suspected terrorist puts to rest the idea that anyone can rationally argue for
completely open borders, and it shows that people who advocate for stronger
enforcement of immigration laws are not necessarily motivated by hate or bigotry
or xenophobia, but they have legitimate concerns. The practical question, what to do about
the peaceful refugee challenges, notions of strict textualism or strict
textualist interpretations of law. And it shows that people who advocate for
selective enforcement or more equitable enforcement of immigration laws are not
necessarily trying to undermine the rule of law, but express legitimate concerns
about who we want to constitute ourselves as a people. The second deficiency is the
deterioration of our normative currency. What Harvard law professor Mary
Anne Glenndon calls “rights talk.” We see the inflation of rights rhetoric
in a number of different places. For example, the newly discovered right to
engage in prostitution – see Canada – or the right to use the internet to poach
other people’s intellectual property – see France – which are placed on the same
footing as the rights not to be maimed, raped, tortured, and murdered. We see it closer to home in the assertion
that people have a right to coerce others to affirm their gender
identity or lifestyle choices. All of these are called
fundamental rights. They’re transformed into
affirmative claims in entitlements. They proliferate and they’re placed on the
same footing as rights not to be wronged or harmed. In fact, they often are used to defeat
genuine fundamental rights not to be wronged. The result is we have
rights without wrongs. They conflict with each other and they
have to be weighed against each other on some measure other than duty and
obligation, which of course gives judges lots of discretion to go outside the law. Now, the remedy for this deficiency, I
think, is to understand what rights are. A right is not essentially an entitlement. A right is instead a direction for the
actions of real people who are to decide how they’re going to act. To say that someone has a right to free
speech means that others have a duty to refrain from preventing
her from communicating. To say that someone has a right to life is
to say that others have a duty not to kill him. To say that one has a right to limbs is to
say that others have a duty not to maim. To say that one has a right not to be
trafficked is to say that others have a duty not to enslave or
sell or buy for sex? As these examples show, a right is an
answer to these practical questions that we have. What is to be done? It is a reason, a conclusive reason. A right is what is right to do or to
refrain from doing with respect to another person or class of persons or all persons. Its meaning is in identifying what duty I
owe the person who’s to be affected by my action or failure to act. It binds, it imposes obligation. So in other words, rights guide us to
avoid wrongdoing when properly understood. To borrow from the Hebrew and Christian
traditions, it forbids us to sin. So properly functioning rights are not
primarily about what I am owed or what I am entitled. Rather, they direct my own
action toward other people. If everyone were attentive to his or her
duties, they would be attentive to other people’s rights, and then everyone’s
rights would be accounted for. Now, many people assert their rights
without concern for who bears the burden of responsibility for the right, or
what is required to vindicate it. I have a right to education,
right to healthcare. Um. But again, make the question practical:
tell someone that they have a duty and they immediately want
details: duty to whom? To do what? Viewing the right from the
side of the duty is clarifying. It automatically deflates
overinflated assertions of rights. So by examining rights as answers to our
practical questions, we can separate real rights from various imposters which trade
on the normative prestige of genuine fundamental rights, and which
devalue Liberty and equality for all. And we can distinguish different senses of
rights, especially the differences between rights that are fundamental and universal,
and those that are contingent and fact dependent. So consider again, the
immigration controversy. We can all agree that people should be
at Liberty to leave their homeland when they’re being murdered
and oppressed there. But that does not entail that any person
has a legal claim to enter any country they want. Any duty to admit them would depend upon
the laws of the country they desire to enter. So the Liberty to emigrate is universal. The right to immigrate is contingent on
the particular laws of the country and of particular states. The third deficiency is the thinning out
of moral reasoning into moral imperatives or commands. Our civic discourse is so rancorous
in part because too much is at stake. If every important question is a zero sum
contest between competing proposals, then someone’s proposal must always lose, and
the losers must then be governed by the victors – and the victors, of course remember, are
people whom the losers considered to be not only objectionable but
unreasonable or even wrong. But that’s if. What if most of our controversies
need not be zero sum contests? What if we can live out many of our
differences reasonably to achieve the pluralism that can enable us to live
together in spite of our differences? We need to employ what I call in the
book “the power of indifference.” Most of our practical questions admit of
more than one possible reasonable answer. These are questions of what Thomas
Aquinas called determinatio. Common law jurists following Aristotle
called them “matters of indifference,” not meaning that we should be indifferent
toward the result, but rather meaning that the right answer can be settled and
specified in more than one way, equally consistent with reason. Not all answers will
be equally reasonable. But unlike questions of absolute rights,
matters of indifference allow us to disagree within reason. People have absolute rights
and they’re important. We all have exceptionless duties
not to enslave, defame, and killed. And so we all have absolute rights not
to be enslaved or defamed or killed. But as long as we stay within those
moral boundaries marked off by those exceptionless duties, we have great
freedom to settle on particular duties of action and the rights that
will correlate with them. Parents and teachers, for example, have
obligations to educate and care for children, but not everyone must educate
their children or students the same way, or feed them the same food. Most important questions, I think, in our
day are matters of indifference, despite the heated moral rhetoric
often attached to them. This means that they are questions about
which reasonable minds can disagree, or which are contingent on
variable circumstances. Not all illegal immigrants
are equally culpable. Not all business owners who refuse to
celebrate same sex relationships are discriminating because
of sexual orientation. States need not have identical tax laws. States can use different laws to
disincentivize abortion and protect the health of mothers from
unscrupulous abortionists. Different schools and colleges can pursue
different forms of knowledge and by different means. In short, we can have, to
some degree, pluralism. And I think we can and should encourage
different groups and communities of people to explore a variety of different answers
to many of our practical questions, and different solutions to our problems,
as long as they don’t infringe absolute fundamental rights or
commit inherent wrongs. And I recognize there’s a
complication about what that means. But I think allowing a greater variety of
options and more freedom to choose between them would return practical reasoning
to the domain of the practical. It would avoid many zero sum contests,
would lower the stakes of our disagreements, and it would likely
lower the temperature of our discourse. And I think this is how human
beings generally flourish. For people to flourish in all the diverse
aspects of our wellbeing – the common good – they must be free to choose, to
some extent, a plurality of projects. For that to happen, governments and
politics must be kept in their place. We can lower the stakes of our public
controversies, lower the temperature of our civic discourse, and avoid zero some
contests over totalizing plans of action if we will allow the plural domains
of society to do their work. Now, to do this, we need to rehabilitate
the norms and institutions that stand guard around the plural domains of
society, which produced these different goods. I have in mind, specifically vested
property rights, conscience protections, and religious liberty. And I’ve written quite a bit
about that in other contexts. So, learning how to disagree well,
I think, is just the beginning. I hope it’s just the beginning, but now
I’m out of time, so I’m going to put on my body armor and get ready for the Q and A. Thank you. Moderator: Thank you so
much, professor McCloud. Appreciate that. Uh, so now we have about 30 minutes of Q
and A where you’re more than welcome to ask any sorts of questions that you’d
like, but we would ask that you would please raise your hand and then wait until
my, myself or my colleague come and hand you a microphone, because we have folks
who are watching this via live stream that would love to hear a question as well. And if you talk without a microphone,
they won’t be able to catch that. So does anyone have any questions? Questioner: How do we, um, get practical
morality, uh, education brought to American high schools? Adam MacLeod: To American high schools? Yeah. Um, obviously a big question. I don’t teach high school,
so I’ll, I’ll start there. I teach in a law school. Um, and so I’ll, I’ll begin
with my own experience. Um, my experience over the years – I’ve
been teaching 13 years, not that long, but long enough to see a sort of general trend
in the students who have come to our law school over the last decade plus. Um, the trend isn’t good on the whole, um,
in terms of their knowledge base and their capacity to, to reason with each other. Um. Uh, and one of the things that we did
at our law school was develop a required first semester course so that we call
“foundations of law,” which is essentially a course in historical and analytical
jurisprudence where the students are required to read the books drawn out of
the great tradition that many people are familiar with, um, that just aren’t
required anymore – uh, that students in fact had never encountered
in our experience. Um, basic texts such as hebrew and
Christian scriptures, Aristotle’s Ethics. Aquinas’ treatise on law. Um. Uh, what was more shocking to me: the
Declaration of Independence, Lincoln’s Gettysburg Address, the Constitution
of the United States, students hadn’t encountered. So I think just getting them to engage
the, the great tradition of Western thought is, is hugely
important and hugely valuable. Um, and in my experience, that often opens
up conversations that students didn’t know they were even capable of. Um, so I guess I’m just making
the case for the great books. Uh, but I, I do think actually in my
experience, um, it goes quite a long way. Now, you have to set guidelines. You have to motivate the students to
actually want to have the conversation. Um, that’s, that’s hard. Um, uh, um, and there’s a, there’s a
bigger conversation to be had around that, but maybe we can start there. Questioner: Hi. I’m seeing as most of our, um, our,
our sources for, uh, information and connection comes through mass media forms
of one form or the other, and that those tend to be really polarized these days
for whatever reasons, is there anything optimistic on the front as far as the, the
media, uh, agreeing that they need to be a little bit more objective and find a
center ground or are we still, we have a long way to go yet? Adam MacLeod: Yeah. So, um, I guess, I guess I want to, um,
maybe challenge the idea that that, uh, sort of a centralist or objective or
neutral media ought to be our objective. Um, I, I think that was the way that
meant, you know, sort of Walter Cronkite model of journalism. Um, it’s gone. I just think it’s gone. Um, and I’m, I’m inclined – this may be
overstating it a bit – but I’m inclined to say good riddance. Um, and part because I think that the
era of political neutrality, sort of a Rawlsian public liberalism, um, masked a
lot of really radical differences, which were there all along. And what it did was it, it said, if
you bring your moral views into this conversation, you’re, you’re smuggling in
illicitly uh, you know, more controversial moral ideas. When in fact Rawlsian public liberalism
itself rested on illicit moral conceptions of the good. And so, um, so I don’t think, I think, in
other words, I think the neutrality that, uh, that was sort of held up as the model
in our political culture and journalism and so forth, um, was
actually a bit of an illusion. Um, now: there’s a new challenge, and
that, as you point out, is what to do about polarization, if everyone’s sort
of gone into their camps and they’re not talking with each other. Uh, that’s a real problem. Um, I, I’m not an expert in media, so
I don’t know how much of that is just, that’s the internet, right? Um, uh, and, and that much of this
could be resolved by more face to face interactions, attending
lectures such as this. So I don’t know how much of it is, um, the
form of the media or the, and how much of it is the substance of the media? I just don’t know. Um, but I do think that, uh, that if we
listen carefully to what other people are saying, particularly people with whom we
disagree, I think we will find that there is a common shared commitment there. And that is that whatever, whatever
their differences, Roy Moore and, uh, AOC genuinely believe that
there is a right and wrong. So let’s start there. Um, and, and that’s, I think,
actually an opportunity. It’s a challenging opportunity,
but I think it’s an opportunity. Yeah. Questioner: Yeah. I’m interested in your rights, duties,
responsibility triangle that you talked about. Uh, if it all works together, we have
kumbaya, but you’re talking about polarization. You’re talking about the civil discourse. What are the steps we need to take to
improve, uh, this, this, this triangle so that we can respect each other’s rights
and perform the duties and have the responsibilities to be
a more civil society? Adam MacLeod: Uh, yeah, great question. Big question. Um, I think the first step is I tried to
indicate is, to understand rights, not as fundamentally, um, first-person focused. So I think there’s quite a lot of work to
be done in understanding, uh, that there is a rights tradition, which goes all the
way back, both in common law and civilian jurisdictions to Justinian,
um, and beyond Justinian. Um, uh, it’s, it’s been around for
centuries, and we can draw upon that tradition if we’ll use it well, to
understand rights as the just thing to do so, and this goes back to the earlier
question about educating high school students. Um, if you get them to read, say, um, the
dialogue between, um, uh, Socrates and Credo, um, and understand, uh, Socrates’s
argument that, um, what is the just thing to do is not what I am owed, but
fundamentally what I owe to my community because I’ve enjoyed the benefit of, of
its laws and it’s protection for myself and my family. So I think shifting that perspective
around from what I am owed to what I owe others, I think is the first step. Um, and the, the resources for that
are, are all through the tradition. Um, in fact, it’s, it’s only very, very
recently that rights have adopted this sort of exclusively first
person, um, direction. So just getting them to read old
books, I think is a pretty good step. Um, but I think the second part is, uh,
challenging, um, uh, assertions of rights claims on moral grounds. To what good end is a right to
engage in prostitution directed? Right? I mean, in fact, the laws which prohibited
prostitution in Canada before they were struck down were protecting the rights
of young women not to be trafficked; the right not to do wrong. That’s an important right. Which secures an important human good:
bodily integrity, moral integrity. Um, so just challenging rights talk on
more fundamental moral grounds, um, and I think what you’ll often find is people
who are asserting those rather tendentious rights claims, they don’t
have anything to say. They’ve never thought about it, right? Cause it’s always worked. I just assert that I have a right to
this and everyone’s sorted the differs. I think we just need to stop deferring. We need to do it politely. Right. But just stop deferring. It shouldn’t be a Trump card anymore. Yeah. Questioner: Thank you. I’d be interested in hearing what you
would tell your Faulkner law school students, um, how you, uh, speak about,
um, the trial in the Senate right now, how you would have them evaluate that,
how you translate that for them? Adam MacLeod: Well, they’re law students,
so, um, obviously, uh, we’re going to focus on, um, constitutional questions,
uh, questions of, um, uh, legislative procedure, the Senate’s rules, the way
that the Senate constructs its rules, um, and follows, adheres to its rules. Um. But personally, I would
want to go more deeply. So I would want to talk about questions
such as, um, what does it mean to take an oath of office when I take the oath of
office, whether that’s a president of the United States, chief justice of the United
States, United States Senator – am I merely agreeing to stay within the black
letter of the rules and then push those rules as far as I can without
breaking the black letter. Or is is the author of
office, in fact, a moral act? Am I in fact, taking upon myself a moral
obligation, a moral obligation, which requires me to understand law, not merely
as the set of black letter rules, but as – but, but understands, to
understand law as a moral enterprise. And to the extent that I am, usurping, um,
uh, or, or pushing the boundaries of the law. In fact, I am potentially harming that
moral enterprise in which we all share. So that’s a conversation that I would
want to have with my law students. In fact, it is a conversation
I have with them all the time. Uh, I’m, I’m fortunate to teach at a
university where I’m allowed to have those conversations and no one bats an eyelash. Um, not everyone’s so fortunate. Yeah. Questioner: You mentioned about having a
conversation and the importance of that and sitting down and kind
of talking through things. Um, on some level, I wonder, are we almost
past the ability to have that, um, even that kind of that civil discourse, I even,
even in places where enshrined in our, in our communities where this ought to take
place, university forums, a lot of times it’s there that we’re finding greater
hostility to even being able to have that, where people are shouting down and
don’t allow speakers to even present it. Um, you know, on some level you said,
well, then you just have to, we have to start pushing back. And, uh, so are we at that point almost
where, where things are evolving to the point where both sides are, you know,
the one side saying, we’re tired of this, we’re going to push back. Which eventually on some level brings us
back to American history with the civil war almost, where you eventually got to a
divide where the two sides aren’t able to have good communication sitting down
anymore and now you’re just almost shouting at each other and then it’s,
okay, who has a stronger army and who is going to win? Because the war of ideas has broken down. So now we’re going to have to
have a war of, of strength. I mean, when, when does, when do you,
as the society gets a point where you’ve broken down so much that the areas where
you’re supposed to be able to have civil discourse, you can’t even have that like
in the halls of Congress or in a, in our academia when you can’t have
that, um, where can we have that? Um, and, or can’t we, do we have to
fight it out through force of arms? Adam MacLeod: Um, so I’m just a lawyer. So your penultimate question, when, when
does this devolve into civil war, i think is a bit above my pay grade. But let me try to take up a couple of the
other themes that you touched on there. Um, so one is I, I want to clarify
what I mean by pushing back. Um, if, if I use that phrase, what I mean
is to not, except, um, the, the, the bare assertion of a right, or some putatively,
politically neutral principle, but instead to interrogate what is the moral
foundation of that assertion? What good is this, is this,
I’m advancing or are pursuing? Um, so yeah, so I think actually there
are, um, theories, groups of people who actually, uh, are quite set
against civil discourse. And I don’t think we’re gonna make,
make much progress with many of them. I mentioned intersectionality theories. Um, uh, it, it, it just so happens that I
finished, I spent seven months this year researching post-structuralist philosophy
and intersectionality theories for another book I’m working on,um,
and it’s pretty dark stuff. Um, you know, they, they really genuinely
believe that there are no external reference for, uh, for sym-, symbols and,
and claims and assertions, and everything is, is constructed of relativistic
discursive regimes and all this sort of stuff. Um, you’re not gonna get very far
reasoning with someone like that. Um, so I think we just have to accept that
there are some people we’re not gonna make much progress with. But here’s been my experience. I’ve had a lot of students, um, who have
come into my classroom who begin the year spouting off all these intersectionality
theories, I call them all the “isms”. They love isms, right? Which is just really a short hand, sort of
a shortcut around rational thought, right? I can just slap a label on it and
I don’t have to think about it. Like I just sort of dismiss you. Um, a lot of students who
come in with all the isms. Um, and the problem fundamentally is not
that they believe it, but that they never encountered in anything different. Right? They’ve literally never read, don’t assume
that they’ve read the Declaration of Independence. Right? Don’t assume that they’ve
encountered Aristotle. Um, don’t assume that
they’ve ever read the Bible. Right? Um, so I think they, I think just what
I’ve found is that the moment you start to illumine their ignorance, a
lot of that just dissolves. Um, and so I actually have great hope if
we can restore moral, uh, education as part of civic education um, that we’ll,
that we’ll see a lot of this, a lot of this improve. Um, just one anecdote. Uh, you know, I’m sometimes asked to serve
as sort of the token conservative on, uh, a panel of law professors and,
or, or academics someplace. And I distinctly remember, um, a time
I was asked, it was the height of the debates, debates over same sex marriage
to serve on a panel at Suffolk law school, um, as the token, uh, uh, conservative. Um, and it was what you’d expect. I mean, there’s quite a lot of hostility. Um, but the students in that room – and
the room was packed – had just never heard the argument for natural marriage. They just never encountered it. And so they just assumed that anyone who
opposes the redefinition of marriage is a bigot. Now, they probably still thought I was
a bigot when they left the room, but at least they had encountered the argument. And maybe I’m just a
rational bigot, right? But what I found was as soon as the event
ended, I was surrounded by a cluster of students. And the quick discussion very quickly
moved off the question of marriage to the more fundamental question is
their truth and how do we know it? And now we’re having a real conversation. And by the way, afterwards, when I got
back to my, uh, my home institution, a couple of weeks later, I had the sweetest,
most beautifully written thank you note from the LGTB law students
society at that law school. Um, just that I was willing to come and,
you know, and, and have that conversation with them. So, yeah, a lot of people in the audience,
uh, you’re not going to get very far with them, but in my experience, there’s always
at least someone who’s watching to see how you handle this, and there’s
going to be opportunities there. Questioner: I agree with the last question
there, about um, being pessimistic. But uh, I like Steve Bannon. I, I think he’s a square shooter. And he’s talks about populism, and that’s
maybe the only way that we’ll ever go back to somewhat typical. Answer? Adam MacLeod: So, um, so populism, like
all isms, I’d want to know what do we mean by it? So I think… Yeah. Yeah. So he’s referring to Brexit as I
understand, and other other movements, uh, uh, which are, um, uh, aimed at
recapturing self-governance from far off elites and central governments
and that sort of thing. So, uh, yeah, I mean, I’ll,
I’ll, I’ll show my hands here. I think on balance, um, uh, uh, the Brexit
is, uh, is probably going to be a good thing. Um, I’m not a Brit, so I, you know, that’s
not an educated statement; that’s just sort of a, a mildly educated
statement, um, and somewhat detached. Um, and I think the reason is because,
uh, the more we have opportunities for self-governance, the more practical
reasoning we have to do, right? The more we have opportunities for
self-governance, the more we’re required to ask of ourselves really
hard, important questions. What is the right thing to
do in this circumstance? And that activity is,
is self constituting. It’s reflexive. It builds our muscles, right? We develop the habits and the virtues of
thinking reasonably, um, and, and solving our own problems. Um, and so a big part of this, as I, as
I mentioned at the end of the talk I just gave, is the centralization of power, um,
in far off distant, um, capitals, um, is a big threat to ordered liberty and civic
discourse, um, because it, it, it, it atrophies our practical reasoning muscles. Um, so if that’s what we mean,
on the whole, I’m in favor of it. Now. I think it can be taken to extremes. Um, you know, when counties start seceding
from States, um, because they just can’t agree on tax policy. You know, this is a trend that
I think we need to arrest. Um, um, but, but again, I think this, this
sort of model can go a long way toward, toward arresting it. Questioner: I think you’re absolutely
right about illuminating their ignorance. I, I find that a lot of young people
today, like you say, do not have the basic reading references. And, um, but what happens is because
you’re illuminating their ignorance, they tend to get more emotional in their
arguments because they don’t know the subject matter, and they
know they don’t know it. So then outcomes, you’re a
bigot, you’re a racist, you’re… And, um, what do you do when
someone starts calling you names? Adam MacLeod: Um, so, uh, this is another
reason that I often get myself into trouble. I believe in authority. I believe in natural authority. Um, and my view is that when I’m standing
in front of the classroom, um, I have authority over my students. The reason is grounded in a good, the
important good of acquiring knowledge. Um, if we’re going to acquire knowledge
in that classroom setting, someone has to have the authority to coordinate our
actions and decide that certain, words, certain phrases, certain
actions are out of bounds. So isms, no isms. I don’t allow my student to start any
sentence with the word I, the words “I feel”, right? It goes. I mean, it’s a, it’s a trivial thing,
but it actually goes a long way. Um, uh, I actually have a really good
friend who teaches at Calvin college who has the same rule. Um, uh, and I think probably
for the same reason. Um, I, I think in other words, uh, this
goes part and parcel with what I was referring to earlier. Um, that, that the idea that, uh, we just
sort of, um, defer to assertions of status or, or, or rights, um,
is, is become problematic. Um, and to get them to think critically
about what are we trying to do here? What are we as a group trying to do here? We have a practical problem to solve. And that is how to learn. How are we going to learn? Well, we’re not gonna learn if
we just call each other names. So for that reason, whether or not you
agree with it, I’m not going to let you call each other names. Um, some people find that uncomfortable. I confess that I don’t, may, maybe that’s
a deficiency on my part, but I think it goes a long way. Just just exercising natural authority
goes a long way in my experience. Questioner: You know, what you’re
describing sounds so much to me like what we’ve seen in the past 75 years in our
legal system, and that is elevating what are general, what were generally thought
as public policy questions, things to which, you know, people can disagree,
elevating the answer to one of a constitutional in nature. It’s a legal problem. This is now – this can’t be,
this can’t be debated anymore. It’s no longer a political question. Um, I guess first question,
do you agree with that? And if so, how, how do you think that
that has informed this new way of thinking where we, we always want to elevate things
to that next level, take it out of the, out of the, um, um, sphere to which
reasonable people can, can debate it and argue it? Adam MacLeod: Yeah. So I definitely see the concern to the
extent that law is one of those neutral reference to which we all
use to be able to refer. Um, does it sound like I’m, I’m proposing
something in public discourse analogous to what’s done by judicial activists? Is that, is that, yeah. So, okay. So, um, no, by no means am, and here’s the
reason: because I think law itself, uh, is part of that tradition,
which I referenced. Law itself is a moral enterprise. It has – it, in law – and I think we
need to understand what we mean by law. So when I speak of law,
I don’t mean the text. I don’t even just mean the
propositions contained in the text. Um, I’m referring to a tradition which
goes back centuries, which consists not only of our positive laws – our statutes,
and our regulations – but all of the customary norms and natural, uh, norms
of natural law that we have understood ourselves to be governed by for centuries. Um, it also includes private law. All of the contracts and
property conveyances. Um, in other words, law is far more
complicated than just the text. And if you understand that, you suddenly
discover in the law all sorts of resources to, uh, uh, resources that are,
that contain practical wisdom. Within them. So in other words, I think the study of
law in that more comprehensive sense of which includes both customary law and
natural law and private law, as well as the positive text. And understanding the positive text is
either declaring, or even in some cases changing in some respects, but not others,
those more ancient sources of law, um, actually is a tremendous resource for us. So I think actually judicial activists are
on the other side of this question and so far as they want to ignore law as a, as
a, a rich source of practical reasons for our, our deliberations. Yeah. Questioner: How do you
improve discourse at Faulkner? I mean, obviously you’ve got a bunch of
young people who have been staring at a phone for 15 years. Do you, I dunno, institute a, an, in
house, uh, debate teams or something along that line, or how do you improve the
way that they communicate face to face? Adam MacLeod: Um, practically speaking, I
do have colleagues who ban laptops in the classroom. Um, those who do, by the way, swear by it. So students check their laptops
and their phones at the door. Um, I haven’t gone that far. Um, but we’ve, I think done a pretty good
job at Faulkner of cultivating a culture where people are expected to talk with
each other, um, and, um, pay attention. Um, I mean, obviously law school has sort
of built in incentives cause they want to pass the bar exam, so, um, you know, so
they, you know, I, I, they’re, they’re kind of a captive audience. Um, maybe it gets more complicated in the
college setting and especially in the high school setting. Um, so I’m not sure I have much
practical wisdom to offer there. Um, but again, I would go back
to the exercise of authority. I think it’s up to the teacher to decide
what they need to do, and maybe sometimes make hard decisions about what they need
to do to break addictions to technology, for example, and so forth. Yeah. Let’s give professor
McCloud aroundofapplause.

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