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The Symposium's second panel is entitled: "Freedom and Identity: A Limitation or a Starting Point?"

The panel features:

* Ms. Jennifer C. Braceras, U.S. Commission on Civil Rights
* Professor Douglas W. Kmiec, Pepperdine Law School
* Professor James Lindgren, Northwestern Law School
* Professor Richard D. Parker, Harvard Law School
* Professor Amy L. Wax, University of Pennsylvania Law School
* MODERATOR: Chief Judge Douglas H. Ginsburg, U.S. Court of
Appeals for the D.C. Circuit

What a great lineup! Professor Parker is a longtime friend of the HLS Federalist Society (recently mentioned in our discussion of the overwrought extravagance of activist courthouses. Professor Wax's experience in trying to start discussions about race has paralleled President Summers' experience talking about gender. In addition to his academic expertise in empirical methods and diversity, Professor Lindgren has been a familiar and valuable contributor over at The Volokh Conspiracy. Back when Prof. Kmiec was the dean of the law school at the Catholic University of America, he defended the Pledge of Allegiance in a memorable debate with Alan Dershowitz. And Commissioner Braceras, in addition to being a friend of the HLS Alliance of Independent Feminists, has been an outspoken critic of the maneuvers employed by Democrats to keep deserving nominees like Miguel Estrada from being confirmed.

The program outlines the panel as follows:

This panel will explore the relationship between identify and freedom. Identity, characterized in terms of both immutable factors (e.g., race and gender) and mutable factors (e.g., class, religion, and political affiliation), seems to be a significant factor in determining one's expectations, thoughts, and beliefs. A common identity with others creates shared expectations about how one should think, what one may say, or how one should act. As a result, common identity may lead to collective thinking, pressures for conformity, and suppression of speech and action that deviates from shared expectations. In this sense, identity may be viewed as a limitation on individual freedom. On the other hand, common identity may provide a necessary starting point for culture, social norms, and an individual's view of the world. In this sense, identity may be viewed as providing a necessary condition for human freedom and development. Additionally, what role (if any) should the law have with regard to this relationship between identity and freedom?

Fasten your seatbelts.

Update:

Judge Ginsburg's introduction of Jim Lindgren - "a star with statistics — hopefully he'll demonstrate some of that for us." How often do you hear someone on a legal panel say that?

Amy Wax opened by discussing the phenomenon that has made "blaming the victim" generally off-limits in our political discourse, and suggested that it's based on the essential confusion of "justice" with "progress." Justice requires that the culprit right the wrong, as we know from our study of Remedies, but there are some wrongs in which the culprit cannot efficaciously solve the problem. In these situations, as in our society of victimhood, we need to expect that victims will do what's necessary for them to help themselves.

She argues summarily that the power of government to right the wrongs of individual irresponsibility is limited, and that this has implications for our discussionso f race and racial equality; specifically, that while blaming victims does not exonerate wrongdoers, true racial justice may not be achievable and victims must change their mentality to recognize that they remain free moral agents.

Judge Ginsburg then notes the old Washington chestnut applies here: "It seems no one on this panel is concerned about confirmability."

Richard Parker's remarks then take the contrarian approach of arguing that democratic political freedom, meaning the summoning of energy to engage in and conflict with others about ideas, is fundamentally advanced by identity politics. Specifically, he argues that:

1. All democratic politics is identity politics - animated by efforts to define who we are internally, externally, in the present and in the future, and redefining ourselves over and over again.

2. Only some types of identity politics are pathological to democratic political freedom

3. The three common diagnoses of the problems with identity politics are mistaken - that stereotyping is bad (vs. 'good' individuality); that emphasizing differences rather than shared connections is bad; and that victimhood is bad. Rather, all three of these are essential to identity politics and its role in energizing the polity and promoting political freedom.

4. There are true identity politics pathologies, however: including
- The use of leaders to "speak on behalf" of entire groups
- Social pressure to refrain fromcriticizing groups
- And the overriding "poison" - the celebration of "Minorities," which is antithetical to majority rule. He explains that the celebration of minorities has reified them and solidified an idea that minority status is permanent, eroding the concept of shifting majorities as the goal of our democracy, and the idea that minorities should seek to take part and have their interests promoted in shifting majorities. Thus, he argues, majority rule and voting have been denigrated.

5. Most controversially, he proposes we should replace our silhouette of Madison with Lenin — as a warning against smothering real identity politics with the pathological identity politics of the "New Man."

Jennifer Braceras continues the panel by arguing that conservative views of Americanism and liberal views of racial identity incorrectly suppose that they must suppress the other.

On the conservative side, she identifies the tendency of conservatives to reject the celebration of multiple cultures, even in cultural activities.

On the left, she identifies the excessive celebration of diversity, elevating it over American tradition. And then comes her crowd-pleasing remarks on how liberals treat people as "behaving inconsistently" with their ideas when they fail to follow stereotypes, singling out the treatment of Justice Thomas and Judge Estrada, as compared to, say, Justice Scalia. She suggests this is an example of the left using "identity as a means of control."

Next, the panel runs into some trouble as James Lindgren puts up a Powerpoint presentation that he can't see on the screen in front of him, and the overflow rooms can't see on the video feed. As best I can tell, he made some interesting points based on study of what sort of characteristics are most and least associated with tolerance and promotion of freedom.

A few specific points I caught:

- Democrats cannot be treated as monolithic. Conservative and moderate Democrats are among the strongest promoters of economic freedom; while liberal Democrats are among the most hostile, and are strong supporters of things like wage controls. At the same time, liberal Democrats strongly promote social and First Amendment freedoms; conservative and moderate Democrats do not.

- Those who favor income redistribution tend most strongly towards racism - and redistributionists are less tolerant in other ways.

- Anti-capitalists (he defines this on a slide I can't see) are associated with higher levels of racism and intolerance - and this is consistent with a Russian study.