Over at Balkinization, my colleague Samuel Moyn and Yale student Pranjal Drall have a new post on the birthright citizenship debate. As a brief history of recent scholarly and constitutional arguments on birthright citizenship, it is helpful. But they seem to ultimately want to make a point about scholarly engagement, and on that the post seems much less helpful.

That history serves a broader point about constitutional politics with which I am in entire agreement -- legal arguments (and scholarly arguments about law) work in a political environment, and they gain traction in that broader environment not just because of their objective merits but because of their pragmatic utility in the moment and the extent to which they resonate with the ideas and interests of a broader audience. My arguments about any given topic are always correct (of course!), but whether anyone else agrees with them or thinks they are even worth reading, let alone discussing, is beyond my control. Being correct (bracket what that means and how one would know) is not a sufficient condition -- and is probably not even a necessary condition -- for being embraced by others, whether those others are academic colleagues, government officials, or members of the general public. Oddly, others do not always recognize my brilliance, or the brilliance of my arguments.

I have argued, for example, that this is the history of originalism. Originalism exists both as an academic theory and as a political movement. As a purely academic theory, some find it interesting and try to work out the logic of its arguments as best they can and as persuasively as can be done within a scholarly context. As a purely academic theory, it could be and was frequently ignored by the academic mainstream, and its evolution and arguments were frequently misunderstood or ignored by others in the field. One does what one can to make the arguments as good as one can by conventional scholarly standards, and yet whether anyone else finds them worth reading or understanding or discussing does not simply turn on the scholarly quality of those arguments. Originalism also exists as a political movement. Whether originalist arguments gain any traction (and in what form) in the public sphere is not just a matter (or maybe not at all a matter) of how sophisticated, nuanced, or well considered those arguments are. As or more important is whether those arguments serve any political interests, respond to any perceived political problems, and resonate with any broadly held political values and intuitions. There are feedback effects. The fact that originalism gained momentum in the political arena and influenced how judges think about law eventually led more academics to pay (modest) attention to something that they would otherwise have preferred to entirely ignore. Scholarly arguments operate within their own historical and sociological contexts, and constitutional arguments operate within a further and somewhat distinct historical and political context.

But Drall and Moyn seem primarily to want to make a somewhat different point and to draw a normative lesson from it. They point out that revisionist understandings of birthright citizenship were widely dismissed by scholars and ignored in politics until Donald Trump won the presidency and remade the Republican Party in part by levering anti-immigration sentiments in the electorate. Revisionist ideas about birthright citizenship suddenly had a new political salience and a potential political patron. That new political environment put some arguments on the table that had previously not been on the table, and unsurprisingly it has inspired and incentivized more people to take up and develop those arguments as their own. The history of constitutional politics in the United States should lead us to expect ideas to flow back and forth between the intellectual and political spheres and to push ideas into the foreground when they political relevance in the moment.

So far, so good as a story about constitutional development and how it works. But they want to add a couple of points about how scholarly argumentation works that are more troubling. One, they suggest that scholarship in history and law is just "politics by other means." The implication would seem to be that scholarship should be judged and treated accordingly, that is primarily by political standards rather than by intellectual standards. Second, they suggest that for those seeking to revise the status quo politically and intellectually "achieving contestability is the goal." And again the implication would seem to be that other scholars should, for political reasons, resist that goal by refusing to participate in the debate. The "contestabilty" of the status quo can best be denied by refusing to engage in the contest.

I suppose we'll have to wait for Part II of their essay to learn exactly what strategies they would prefer scholars to take when confronted with arguments that they think are mistaken, perhaps especially when those arguments might have political salience. So far they seem to want to chide me and others for engaging with such arguments on their merits. We lend them legitimacy and respectability even as we try to refute them. Better not to wrestle with the tar baby.

If that is what they want to say, then I think they vastly overestimate the role of academics as gatekeepers of ideas in the public sphere. Law professors tried very hard to dismiss originalism as an idea not worth taking seriously. That ruined some academic careers and stifled intellectual debates, but it did not affect developments in the public sphere at all. Likewise, if scholars now treated some constitutional or political ideas as beneath their notice, that will not have much consequence for whether those ideas will find an audience in the public sphere. To take the immediate case of concern to that blog post, Randy Barnett and Ilan Wurman had already published their ideas on birthright citizenship in a New York Times op-ed before any scholar took interest in them or considered engaging with them. That horse was out of the barn; "contestability" had been achieved.

But perhaps they would go further, as many academics do when working from their apparent starting point. If scholarship is just "politics by other means," then academia should just conduct itself like a political club. Political dissenters should be excluded, silenced and punished. Disagreeable ideas should not be platformed or published or taught. Scholarly ideas should not evaluated not on their intellectual merit but on their political implications. I don't think that will do much to affect developments in the public sphere, but it already has seriously damaged the integrity and credibility of academia as an intellectual enterprise. Banning originalists and originalism from respected academic circles did not do anything to improve public discourse, but it worsened the intellectual environment of academia quite a bit.

But perhaps the suggestion is slightly different. Maybe we should refuse to engage intellectually with the ideas of those with whom we disagree but we should engage with those who expound those ideas by calling them names and yelling at them. They should dismiss the other side "with disdain" and refuse to ever engage with them "on the merits." Maybe we should "move beyond legalistic arguments" and not deign to participate in an intellectual discourse with our opponents. Engaging with people just makes it look like there are "open questions" that one could discuss. That too has been a popular position in academia for many years now -- the self-appointed gatekeepers should declare that some issues are not to be regarded as open questions and should silence, exclude, and punish those who have the temerity to want to talk about them, or least to talk about them in the wrong way. Again, that makes academia worse, but I don't see how it makes the public sphere any better.

As it turns out, I have my own long list of things that I think should not be regarded as "open questions" and about which no serious intellectual argument can be made. It happens that my list would include a great deal of what passes for scholarship and political expression at current American institutions of higher education. If I had the power and the inclination to enforce my understanding of what should count as open and closed questions for scholarly or political debate . . . well, things would be different. As a good liberal, in the relevant sense, I think it would be a bad idea for anyone, including me, to have such a power and inclination. But good liberals are hard to find these days. If we want to treat academic discourse as just "politics by other means" and pick and choose which ideas should be discussed accordingly, then, as they say, the enemy gets a vote. Most academics are not enjoying what happens when powerful political officials take them at their word that what happens on a university campus is just political by other means.

But we might simply think about this in personal rather than collective terms, and this is a question that I have asked myself and that others have asked me. Why should I bother to engage with ideas that I think are bad? Even if I did not actively try to suppress those ideas or deride those who advance them, should I simply decline to engage with them?

Of course, I mostly do. There are an endless number of bad ideas in the world, and I do not have the time and energy to explain why all of them are bad. Most of those bad ideas will be unremarked upon by me.

But sometimes one should discuss bad ideas. Some bad ideas seem worth considering more closely because there might be something there worth saving, or at least I might learn something from the effort of engaging with them. Some bad ideas seem worth engaging because I can help explain why they are mistaken and those who are open to persuasion can be led out of error and into the light through my efforts. Some bad ideas seem worth engaging because they have already gained traction in either the intellectual or the public sphere and important enough and relevant enough to my expertise that I would feel derelict if I did not make some effort to contest them, to resist them. Those ideas are going to get attention and influence some regardless of whether I engage with them or not, but they might have more influence if I do not do what I can to show that they are wrong. If those ideas are loose in the public sphere, then it might be important and useful to likewise attempt to respond to them in the public sphere as well.

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