Comment February 2002

The Professors Profess

Ordinary people can say stupid things. Brilliant people do it brilliantly
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Eric Foner is a distinguished American historian. Writing in the London Review of Books three weeks after the terrorist attacks on the United States, however, he had this to say: "I'm not sure which is more frightening: the horror that engulfed New York City or the apocalyptic rhetoric emanating daily from the White House." Come again? Can this really be a difficult choice? One is reminded of Martin Heidegger's saying that although the extermination of the Jews was bad, so is mechanized agriculture.

It is hard to imagine an ordinary person making such an obtuse, inconsequent, and insensitive statement as did this brilliant professor—or as did another American historian, Thomas Laqueur, who wrote in the same issue of the London Review of Books, "On the scale of evil the New York bombings are sadly not so extraordinary and our Government has been responsible for many that are probably worse." As a matter of logic absolutely nothing follows from these statements. They are pure blather. But it would be unfair to base an indictment of the entire professoriat on the comments of a handful of professors. Foner and Laqueur are not representative—except in their willingness to make fools of themselves in public by writing precipitately about matters outside their area of professional specialization.

That willingness has become widespread among academics. We saw it in the two preceding national crises of recent years, the Clinton impeachment and the 2000 presidential-election deadlock. Historians and law professors weighed in with op-ed pieces, full-page advertisements, legislative testimony, talk-show appearances, and magazine articles. Much of what they had to say seems in hindsight overblown, even silly. About the impeachment they said that Clinton was merely being gentlemanly in lying under oath about his affair with Monica Lewinsky; that an impeachment trial by the Senate would (regardless of its outcome) endanger our political institutions; that a trial would frighten the stock market; that a vote to acquit Clinton would be a vote for environmentalism and abortion rights; and (from the other side of the ideological aisle) that failure to convict Clinton would show that the nation was in a free fall to decadence. Concerning the election deadlock, professors en masse, long before they could have mastered the intricacies of election law and the election statistics, said that Bush had stolen the election; that the U.S. Supreme Court Justices were corrupt; that the decision in Bush v. Gore was the worst decision in the history of the Court (worse than, for example, the decision in the Dred Scott case, which is sometimes blamed for the Civil War). Several of our most distinguished constitutional theorists argued in The New York Times that "there is good reason to believe that Vice President Gore has been elected President by a clear constitutional majority of the popular vote and the electoral college," even though it is elementary that a popular-vote majority has absolutely no constitutional significance for the election of the President.

Both the impeachment and the election deadlock were rich in legal and historical issues, so it was natural that law professors and historians would speak to them, though it was regrettable—and, indeed, an embarrassment to academia—that so much of their talk was ill informed, premature, and inaccurate. One might have expected more caution about September 11, because although some of the responsive measures taken by the government raise issues of civil liberties, the principal issues presented by the terrorist attacks have to do with policing, intelligence, military strategy and tactics, and foreign affairs—matters about which few of the academics who spoke out about the impeachment and the election are informed. But that has not silenced them. In The New York Times of November 6 Bruce Ackerman, a constitutional-law professor at Yale who was hyperactive in opposition to Clinton's impeachment and in support of Gore's challenge to Bush's lead in Florida, offered his take on the aftermath of September 11. He wrote that our domestic-security problems are solvable: "It would be a mistake to exaggerate the long-term threat on the home front," because the Islamic terrorists do not have "significant support in our society." This is a remarkable statement, given that without such support those terrorists were able to kill thousands of Americans in a matter of minutes. Ackerman's strong optimism about the home front is matched by an equally strong pessimism about "the international prospect." In his view, nothing we can do abroad will significantly lessen the ranks of the terrorists. Hence "we should figure out clever ways to declare victory at the first decent opportunity and remove our troops." Declare victory before victory is won? Who would be fooled by that? Are terrorist networks to be left alone to gather their strength for renewed attacks, perhaps with gas, germs, or fissile material? Can we fortify the United States against such attacks? Don't we have to try to spoil them, and doesn't that mean we have to operate abroad?

I don't want to make Ackerman's mistake and offer my own recipe for fighting international terrorism. I am no more an expert in national-security matters than he is. What I want to emphasize is how poorly argued Ackerman's position is—how badly it fails to answer the obvious questions. But this is no surprise, because he is writing far outside his field.

Academics are smart and fast, and, in nonscientific fields such as law and history, they can be glib. They are able to supply plausible commentary at short notice on pretty much any subject that engages the interest of the public. The greater that interest, the greater the outpouring of instant commentary. But when academics speak off the cuff, especially about matters outside their areas of expertise, quality tends to go to hell. And there is no accountability for their pratfalls. A tenured professor who makes a fool of himself in the media can always retreat to the security of the academy.

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Richard A. Posner

Richard Posner is an author and federal appeals court judge. He has written more than 2500 published judicial opinions and continues to teach at the University of Chicago Law School. More

Richard A. Posner worked for several years in Washington during the Kennedy and Johnson Administrations. He worked for Justice William J. Brennan, Jr, the Solicitor General of the U.S., Thurgood Marshall, and as general counsel of President Johnson's Task Force on Communications Policy. Posner entered law teaching in 1968 at Stanford and became professor of law at the University of Chicago Law School in 1969. He was appointed Judge of the U.S. Court of Appeals for the Seventh Circuit in 1981 and served as Chief Judge from 1993 to 2000. He has written more than 2500 published judicial opinions and continues to teach at the University of Chicago Law School. His academic work has covered a broad range, with particular emphasis on the application of economics to law. His most recent books are How Judges Think (2008), Law and Literature (3d ed. 2009), A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009). He has received the Thomas C. Schelling Award for scholarly contributions that have had an impact on public policy from the John F. Kennedy School of Government at Harvard University, and the Henry J. Friendly Medal from the American Law Institute.
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