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Why the opposition must be stupid or devious, not merely mistaken

Max Stearns


For several years I ended my course in constitutional law with a list titled “11 bits of advice for rising lawyers.” Aside from my romantic advice (marry a better person), the item I regarded most important was to regard skeptically positions with which you are viscerally inclined to agree and regard seriously positions with which you are viscerally inclined to disagree.


Although I continue to think this approach makes for sharper thinkers and better lawyers, beginning in the Trump era, it became an increasingly difficult proposition to advance. I moved on to other closing lectures.


Over the past several years, I’ve thought a lot about why it is that it’s no longer sufficient for the opposition—whichever side—to be mistaken. Instead, the opposition must be stupid, devious, or worse. A particularly vile feature of social media is constantly having one’s positions distorted beyond recognition and then attacked for the more convenient, simplistic, (mis)argument never presented in the first place. This is so commonplace that it has driven many former users off various social media platforms, but undeniably especially Facebook.


Because I’ve spent considerable time as a faculty member both at George Mason Law School (prior to the Scalia renaming) and Maryland Carey Law, I have social media acquaintances across the political spectrum, including its extremes. As part of my personal blindspot project, for many years I worked to cultivate these relationships. It’s important to know how others think. But I’ve noticed that whether I criticize a position on the hard right or occasionally hard left, and I do both, all too often someone not part of the original conversation will weigh in to claim that what I’ve said is indefensible, stupid, or worse, based on an egregious mischaracterization, or distortion, of what I’ve actually written. I’m not special. In the world of social media, this has become a feature, not a bug.


It’s all too obvious that our politics have grown intensely divided to the point of rendering our culture dysfunctional and our democracy at serious risk of collapse. I’ve spent the past year, and anticipate several more, working on how to repair things so that our democracy might survive. This is by far my most important project of my career.


Hyper-partisan gerrymandering coupled with social media as the dominant means of disseminating news and news-like information has wreaked havoc with our culture and politics, pushing far too many in the electorate and in the media to extremes. Elite academics are not immune. With hyper-partisans controlling the narratives, aspiring or actual politicians rarely improve their prospects through serious engagement with ideas from the other side. Far better to quickly—and better still, insultingly—dismiss inconvenient truths.


In a world in which all that matters is the power derived from votes within highly gerrymandered electoral districts or our frankly bizarre Electoral College system, it becomes less and less attractive to encourage students, or anyone, to engage seriously with the opposition. Academic elites embracing extreme ideologies certainly understand that their casual, or insulting, dismissals of the opposition as stupid, devious, or worse is disingenuous much, even most, of the time. Or at least I hope so.


Those who aren’t academically skilled or who don't hail from elite educational backgrounds—what we might think of as ordinary partisans—can’t be faulted for looking to elites for guidance. It’s not irrational to suppose that when highly educated elites summarily dismiss the opposition as stupid or devious, there’s not much point in seriously engaging with the other side. Misguided, yes; irrational, no.


There’s no need for examples; I’m confident those reading this post have experienced it themselves. The phenomenon is as ubiquitous as it is vile. It is also inevitable.


As a lifelong student of economics methodologies, I know it doesn’t matter if people understand the economic accounts of their observed behaviors for the accounts to be powerful. John F. Nash received a Nobel Prize in Economics for just that sort of observation. Actors needn’t appreciate what drives them toward a pure-Nash equilibrium to find themselves in one. And once they land there, there’s not much they can do to extricate themselves.


Even if elites on the hard right (or hard left) fail to understand what encourages their all too casual, and yes disingenuous, dismissals of serious arguments with which they are viscerally inclined to disagree, their insulting posts or comments invite countless clicks, likes, and shares. Those engaging in such behaviors might claim innocence from any resulting harms wrought on our culture or to our politics and democracy. At best they are vain. At worst, complicit.


Either way the behavior has undermined our discourse and helped put our democracy at risk.


I welcome your thoughts.



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