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This spring I am fortunate to have the opportunity to teach a class at Harvard Law School on constitutional originalism. The syllabus, for those who might be interested, can be found here. It includes a fairly lengthy list of suggested readings for those who might be so inclined to explore.

Although originalism is something that I write about (e.g., this, this, and this), it is not something that I could normally justify exploring extensively in the classroom. We’ll see how it goes. There has been a tremendous outpouring of work on this topic over the past several years (some of it even by people not named Larry Solum), so it is certainly of scholarly interest. Given the conservative legal movement’s continued affection for originalism, and the Republican Party’s ability to sometimes win elections and prioritize judicial nominations, originalism has some practical significance for those who want to work on constitutional issues in contemporary American courts. Thanks, Justice Gorsuch!

It would make sense for law schools to incorporate originalism into the curriculum, and there are even some originalists around who can teach such things. The Georgetown Center for the Constitution has done an impressive job of putting together a summer boot camp on originalism for law students from across the country.

My syllabus emphasizes the theoretical debates, though there is now a sophisticated literature doing the hard work of applying originalist theory to constitutional problems as well as a growing literature on the history and politics of originalism (both get some attention for those who might be interested at the end of my syllabus). Judicial opinions don’t make the cut, however. They get enough attention as it is.

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Generally law professors are hired in two fashions. First, entry-level candidates are hired at the outset of their careers through the AALS Faculty Recruitment Conference (also known as the “Meat Market“). Second, professors can “lateral” from one school to another. In some cases, schools will ask a potential lateral candidate to visit for some period of time–maybe a full year, maybe a semester, maybe a few weeks. These so-called “look-sees” are designed, in theory at least, to provide the faculty with enough time to get to know the candidate, and make an informed hiring decision.

I encourage you to read an essay by Professor Tess Wilkinson-Ryan (Penn) who recounts her experience pursuing three look-see visits. Here is a snippet:

In the early winter months of 2014, pre-tenure, I got really flattering phone calls from deans at Stanford, Harvard, and NYU, respectively. I agreed to a one-semester visit at Stanford, a three-week teaching visit at Harvard, and eventually to a two-week non-teaching visit at NYU. I was not looking to move, but you never know, and in any case visiting appeared to be the coin of the realm.

My family and I moved into an Airbnb in Menlo Park in August of 2014, and I started teaching 1L Contracts at Stanford. The faculty was largely kind and forthcoming, the dean both lovely and frank. But I had a displaced three-year-old and seven-year-old in tow, not to mention their 35-year-old father, who were not getting taken out to lunch and complimented. . . .

While I was at Stanford, the hiring chair from Harvard called. He expressed his own enormous enthusiasm (thanks!) and asked if he could go out for letters before my arrival. I said sure! I went to Harvard in January, and taught a three-week winter term version of Trusts and Estates. This was only my second time teaching it, and a truly terrible decision on my part. I lectured from 9–12:30 every morning then prepped well into the evening. I FaceTimed with my sobbing preschooler each night while my husband assured me they were doing fine. I gave a job talk that was pretty good; neither the hiring chair nor the dean were present for it. I had to start teaching Contracts when I got back home, a week late into the semester and behind before I began. I was exhausted. I never heard from Harvard again. . . .

I heard from Stanford that spring. My file would not get out of committee; I did not get an offer.

By the time I went to NYU a year later I was a little more clear-eyed and organized about the process. I was mid-semester at Penn, though, and hustling to fit the two-week visit in. My job talk, on Day 3, was not great by any measure, and multiple faculty members accidentally telegraphed their Intellectual Lightweight verdict. But they were mostly quite friendly and I went to some convivial dinners. My husband and my parents took my kids on spring break to Florida. I was exhausted. I never heard from NYU again.

I have long been skeptical about the value of such semester-long visits. First, universities may not be fully transparent about whether the visit is a “look-see,” or instead is a “podium visit.” This latter approach, which is quite common, invites a professor to teach a class–literally fill a podium. With such setups, both the professor and the university share the same expectations–he or she will be invited for a semester, and after that, there is no expectation of any further engagement. But with a “look-see,” there is always the lurking fear that the invitation is motivated, at least in part, by a need to fill a podium. The candidate may not find out the truth until the end of the visit, when no offer is tendered.

Second, when a “look see” invitation is made, the candidate often does not know the committee dynamics. Perhaps one member of the committee wants the candidate, but the rest are opposed. Maybe that champion thinks the candidate can woo over the rest of the committee. Or, perhaps the committee is gung-ho about a candidate, but the majority of the faculty would never even consider the hire. There are often many variables at play–information seldom known by the candidate. These information asymmetries create a lot of risk in process.

Third, while on campus, a visiting professor has a daunting, grueling challenge. During an interview, candidates routinely have to put on their best face, make excellent impressions all around, and close the deal. But with a look-see this sort of interview can last four months. It is impossible to put on a show for that long. And at some point, a visitor may drop his or her guard, and tick off some member of the faculty. A borderline candidate is now burned.

Fourth, participating in a look-see, and not getting the job, could be embarrassing. Wilkinson-Ryan explains:

Visiting is public. Literally, visits are listed on blogs and publicized by the schools themselves. The fact that I’m still in my old job suggests to anyone who cares (hopefully that’s a real small number) that I went out for three jobs that I wanted badly enough to go way out of my way to get, and I was turned down.

If a school were to offer me a look-see (hasn’t happened yet), I would ask how many professors have visited in the last decade, and how many of those professors were given offers. If a school is unwilling to give that information, the look-see offer should be viewed skeptically.

Fifth, there is a significant cost to visiting professors with families. It is often difficult, if not impossible, to move a significant other from employment, and uproot children from school. As a result, the professor may decide to spend the semester abroad solo. That choice could mean flying home every week–not cheap. This option, however, could harm the semester-long interview. The constant travel could create the impression (however unfair) that the person simply isn’t committed to the job. For example, traveling professors could miss workshops and other meetings. Alternatively, the professor could simply spend extended periods away from family. The costs of that absence–especially compounded by a no-offer–are staggering.

Sixth, people often feel that the grass is greener on the other side. It’s usually not. Far too often professors, like everyone else, think that moving to some other school will improve their lives. That perspective is overrated. If you are happy where you are, relish that situation. Don’t chase a higher-ranked school because it might give you some more elite points. Letter-head bias is overrated. Motivated scholars can make their career at any school. Law professors have a unique opportunity to impact hundreds and thousands of students over a career. That impact can be felt at all tiers of the rankings.

The cost of a look-see visit is far too high for most candidates, with far too much uncertainty. If a University wants to hire a professors, they should be able to do so based on that person’s record, with a reasonably-timed interview.

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1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

 

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“If 2018 was the year that the concept of ‘cancel culture’ went mainstream,” writes Meghan Daum near the beginning of The Problem With Everything: My Journey Through the New Culture Wars (Gallery Books), “then 2019 may be the year that cancel culture cancels itself.”

The 49-year-old essayist and novelist writes regularly on feminism, liberalism, and the weaponization of political correctness. In her new book, she contends that “by framing Trumpism as a moral emergency that required an all-hands-on-deck, no-deviation-from-the narrative approach to cultural and political thought…the left has cleared the way for a kind of purity policing—enforced and amplified by social media—that is sure to backfire.” The Problem With Everything is her clarion call to chill out and allow people to be more complicated, contradictory, and human.

In October, Daum sat down with Reason‘s Nick Gillespie to discuss generational warfare, the proper role of a writer in society, and why in the end she’s (at least a little bit) optimistic for the future of American political discourse.

Reason: Your book is a critique of fourth-wave feminism. What does that mean and what’s your beef with it?

Daum: I would describe fourth-wave feminism as something social media–based. It has to do with expressions of empowerment and solidarity in terms of memes and hashtags. I started noticing it maybe around 2014, early 2015. It coincided with the issues that were coming up around sexual assault policies on college campuses. But a lot of it was rooted in this idea that we’re going to complain a lot about men and punch up at men.

Who’s “we,” Kemosabe?

These are young women—women in their 20s, women in high school. But a lot of older women and middle-aged women are glomming on to this the way one does if you want to stay with the times. I consider myself a feminist. I have always been a feminist. I’m a liberal—[though] increasingly I’m informed that I am not. But what troubled and interested me was that I had grown up alongside second-wave feminism.

To define our terms: First-wave feminism culminated in the right to vote.

Yeah, suffragists in the late 19th and early 20th centuries.

Second-wave feminism is the postwar stuff: Betty Friedan and The Feminine Mystique, Gloria Steinem. Third-wave feminism then gets a little bit tougher to define.

Third-wave feminism was actually coined by Rebecca Walker.

The novelist Alice Walker’s estranged daughter.

That’s right. They’d had a huge falling out over definitions of feminism. You can’t get more feminist than becoming estranged from your feminist mother.

So third-wave feminism is like Bitch magazine, it’s Alanis Morissette, it’s girl power.

It’s hard to say. I think it was Rebecca Walker herself who said, “The defining feature of third-wave feminism is that it’s impossible to define.”

What is now being called fourth-wave—and that’s not a term that gets bandied around too much—is this kind of #KillAllMen [movement launched by] the columnist Jessica Valenti, quoted a couple times throughout the book. She was the founder of Feministing, which was a feminist website. She’s actually a Gen Xer, but she’s very, very popular among younger millennial/Gen Z feminists.

In the book, you talk about an episode that exemplifies the tensions within fourth-wave feminism, when a writer at Babe came out with a story about Aziz Ansari’s date with an anonymous woman. The author of the piece made an attack on Ashleigh Banfield, a Gen X newscaster. Banfield was talking about the story on the air and said, “This is a story about a bad date.” And then the writer said, “Go fuck yourself with your bad dye job.”

And your burgundy lipstick! Just to back up on that: This was early 2018, I believe. The comedian, Aziz Ansari, had this sort of woke reputation. He would show up on the red carpet with “Time’s Up” pins [supporting an anti–sexual harassment organization]. This anonymous piece appeared on this website that nobody had ever heard of, which described a date that this woman had gone on with Aziz Ansari where she felt uncomfortable. It was not entirely clear what had gone on—it definitely did not sound like a fun time, but also not like anything that she couldn’t get out of. It didn’t ring to my ears as a particularly dangerous situation.

This as-told-to piece went viral. That was the moment the generational lines just split down the middle. The reaction from younger feminists was, “Oh my gosh, he is a terrible person. This is unacceptable. This is toxic masculinity. If you’re in a sexual situation and he makes you feel uncomfortable, then that is on the rape spectrum in some way.”

Older women were kind of like, “Whoa.” The record scratched. “We’re having serious discussions around people like Harvey Weinstein and Charlie Rose and Matt Lauer, and suddenly, you’re putting this in the same category?” That was really a flashpoint because suddenly the two generations were not understanding each other.

You started writing the book before the 2016 election, expecting Hillary Clinton to win. What was the book you would’ve written had that happened?

I was going to write a contained, discrete book. The concept was “you are not a badass.” There were these expressions in third-wave feminism, like, “Oh, you wake up every morning and face down the patriarchy. You’re so under the thumb of this oppression that just paying your rent on time and showing up to work makes you a badass. It’s so difficult to be a woman.” I just thought it was strange because, as a Gen Xer, I had grown up in the ’70s and ’80s never having any concept that I was anything but equal to boys. In fact, most girls were better than boys. They were doing better in school.

There was not a sitcom that didn’t have an episode where the girls beat the boys—The Brady Bunch, The Partridge Family, Facts of Life.

There was something about growing up in the ’70s. It was a much more androgynous period. You didn’t have the extreme girliness, the blue toy aisle and the pink toy aisle.

So you were going to write about feminism, but then it became a Gen X memoir. Talk a bit about what you’re calling attention to as somebody raised during the ’70s and ’80s. This was an era of David Bowie and Twiggy kind of being the same, or David Bowie and Patti Smith.

Patti Smith.

She was not really a tough broad, because she was female but androgynous as well.

Yeah. Even people like Chrissie Hynde [of The Pretenders]—there was just an aesthetic. Then suddenly the premise of feminism was that women were somehow weaker, or being weakened by men. Assuming that Hillary Clinton was going to be the president, I said, “OK. Let me just take a hammer to all of this. I’m going to do some sort of manifesto: Women, get your acts together. We have a woman in the White House. Let’s move on.” That didn’t happen.

And it’s not just that Clinton lost, it’s that she lost to the return of the repressor. Donald Trump is a…he’s not even like a ’50s man. He’s not a Leave It to Beaver father.

No, he’s a cartoon villain.

He’s a Harvey Weinstein.

He’s like the Frankenstein of all toxic masculinity. So I had to open up the book. Ultimately, I thought that there was something much subtler and more important going on. I wanted to talk about this ethos of social justice and how the extreme right and the extreme left were almost meeting—horseshoe theory. But it was really abstract, and hard to get a handle on. So I realized that I needed to frame the book around my own coming of age as a person, as a woman, as a feminist, and also [as someone who’s] getting older as a Gen Xer.

So you wanted to write about feminism in a world where we have a female president, and then Trump was elected. The subtitle is My Journey Through the New Culture Wars. Wokeness is one of the cruxes here. It’s partly about being sensitive to everybody’s identities and issues. But you seem to be framing it as: Gen X, and maybe even boomers, were tough, while millennials and Gen Z are really sensitive.

One of my working theories in the book is that Gen Xers really grew up fetishizing toughness. Our parents went to work, we were latchkey kids, and there was a real pride in making it on your own and taking care of yourself. There was something almost exciting if you broke your arm and went to school in a cast. As we grew older, the sort of ’90s Gen X reputation was about aloofness, irony, and detachment.

I wonder if millennials and Gen Z have a similar way of fetishizing fairness. They have grown up with all sorts of messages about inclusivity, and if equality of opportunity should necessarily equal equality of outcome. Those are good ideas, the same way that being tough is a good thing. But maybe we have too much of each.

You’ve taught at a number of universities, and in the book you talk about conversations with your students. One example is when you have them discuss [the musical] Rent, and then you show them the Team America parody of Rent, done by the South Park guys.

I was a visiting professor in this program at the University of Iowa, so I could not get fired, and there was no point in anyone reporting me to the dean. I was teaching a cultural criticism seminar. And it became frustrating, because I couldn’t get through a lot of the material. We would read cultural pieces that seemed anodyne to me—a Mary Gaitskill piece from Harper’s from the ’90s, and they would think, “There’s too much internalized misogyny here.” We’d read Christopher Hitchens, and they would have to go to the hospital, practically.

But I taught them an essay by the late David Rakoff, who was a brilliant writer. And he has this wonderful essay about the musical Rent. It was such a huge hit in the mid-’90s. It was the woke art piece of its time.

The woke version of La Bohème. Right?

Well, also, it was about AIDS.

Basically, by the end of the show, every character is infected with HIV—even people who’d never had sex, or people’s dogs, or whatever. It was really emblematic of its time, because the public health message around HIV was alarmism. We had to have that in order to get anything done. So I had them look at this essay, and then I had them watch a clip from Rent itself, which really does not hold up very well. They were horrified by the schmaltziness of it. And then in the film Team America: World Police, which is one of these scatological marionette movies done by the South Park [creators], there’s a scene where they have to recruit somebody to join this police force of saving the world. One of the people they have to recruit is this actor who is performing in a production of, it’s called Lease. So there’s this whole big [musical] number called “Everybody Has AIDS.” And it’s just this totally irreverent send-up of the message around the AIDS crisis.

I, as their 47-year-old professor, played this for them. I really think it’s one of the funniest things in existence. I was practically falling out of my chair, practically peeing in my pants. And they just looked at me in utter horror. And I really had to ask myself, “What am I doing this for? Why do I even care? Why do I need to shove this down their throats? Why am I so obsessed with this generational divide and humor and irony? What does it matter if they think this is funny or not?”

If older people fetishize toughness and younger people fetishize wokeness, we need to meet somewhere in the middle, because each has its virtues.

In the book you talk about how during the ’70s and ’80s, women started [joining the workforce] in administrative and management and supervisory roles, in more or less equal positions to men. Suddenly, there was a moment when as a nation we had ongoing moral and social panics over abducted children. So right at a moment when women are being liberated from the kitchen—

Middle-class and upper-middle-class women, by the way, because poor women had always worked.

But then suddenly, every time we’re eating breakfast cereal, we’re seeing milk boxes with missing kids. What was going on there?

I just don’t think it’s any accident that this happened right when you had all these mothers going to work. You’re swept up in the ’80s, and all the women were putting their Nike running shoes on with their power suits. But then this sort of cross-current came in, saying, “Well, not so fast. You can’t leave your kids. They’re not safe. You need to go back into the home.”

You’ve got to be playing Mozart to them in the womb and enriching their cribs with scientifically designed mobiles that will make them super geniuses.

And we have [the rise of] 24-hour news. It’s not like crime has increased; it’s actually gone down. But we’re seeing every single thing that happens, and with social media that’s exponentially worse. You would think there’s a police shooting every five seconds on every block of every city. There became an obsession with safety.

Another thing—I entertained this in a half-baked way, and I think there might really be something here—is when you started being able to tell the sex of the baby in utero, I wonder if that set up a gender binary that became more pronounced than it was before. Babies are brought home to nurseries that have been decorated for boys or girls and parents have unconsciously set up a whole narrative around the child. I wonder if that created extreme gender roles that we just didn’t have to deal with in the ’70s. And that has perhaps caused the backlash that we’re seeing around gender.

The coddling of kids who then are less resilient, and who take every real and perceived slight as a massive wound against their identity—in a way that [goes against what] we were taught in the ’70s and ’80s, which was like, “Rub some dirt on it, spit on it, and walk it off.” Where do you see this all heading?

Well, the short answer is if everybody gets canceled, we can just hit “reset” and start over again. So in a way, I want cancel culture to go on a little bit longer so we can all be canceled. Beyond that, I think people are craving complexity. We’re in this moment where we think in memes, we talk in tweets. If you try to make a complicated point, not only is that discouraged but you can also get penalized. If you try to say something like, “Yes, there is a gender wage gap. Let’s look at why it might be. Is it because women make certain choices? Why do they make those choices?” People would slap me down as a victim blamer, an internalized misogynist, part of the problem.

On the one hand, we have things like Twitter and meme culture. There’s that move toward absolute radical simplicity, where if it doesn’t fit on a single panel, forget it. On the other hand, we increasingly see this move toward really long-form [multimedia] journalism. You think of YouTube shows or podcasts that go on for hours—Joe Rogan can have a million people watching or listening to a three-hour podcast. It’s a very bizarre world, where the contrasts seem to be extremely stark and growing in many ways.

It’s telling that podcasts are so popular. That, increasingly, is the space where you can listen in on private conversations. The most interesting conversations are being held in private, because it’s so risky to have them in a public space. So the closest we have are these podcast discussions.

I got hooked on them. A huge part of the book talks about after I got divorced—my husband had really been the person that I talked to about everything. The Problem With Everything refers to the ongoing conversation that we had. He was my intellectual ally. And when I lost that, I turned to podcasts and YouTube conversations.

You wrote in August 2018 about your flirtation with what has become known as the “Intellectual Dark Web” (IDW).

Yeah. So the piece was called “Nuance: A Love Story.” I hadn’t planned on publishing this as a piece, but suddenly, everybody was talking about the IDW. And I said, “Hey, wait a sec. I knew this band before anybody else knew them.”

Which is a very Gen X thing to do. You were bored with them by the time the IDW had signed with a major label.

I hated them before they had a second single. It’s a very long piece, and it’s really about how I had had this intellectual allyship with my husband. He’s also a journalist. We were very amicably divorced. But in my new sort of singleness, in my new kind of aloneness, I became really drawn in to people having nuanced conversations on podcasts and online. At this time, there was an increasing gulf between what I thought—what I actually thought—and what I thought I was supposed to think, when wokeness was emerging and when Trump won the election. A lot of my friends, people I had considered very close who very much aligned with me politically, we started to have some differences that I found surprising and troubling. I started to feel very distanced from them. Loneliness is a lot of what animates this book as well—aging and loneliness.

You say we’re all really lonely in a way that we may not have been before. There’s sociological data to suggest that we interact less with other people than we might have 20 or 30 years ago. Then you also say—again, this is that contrast—that we know too much about what’s going on in each other’s lives, because there’s not even a confessional dimension but an exhibitionist dimension to social media and the way we live now.

We can get completely caught up in ideas about school shootings or climate change—I don’t want to say hysteria, because that sounds diminishing. But there is a sense that we are in a 24-hour emergency. We’re in a crisis. If you go on Facebook, people are saying, “Oh, my gosh. I’m having to take antidepressants. I have anxiety. I’m afraid to send my daughter to college because one in four women are raped. The world is going to end in 10 years because of climate change. I’m not going to use any more straws.” There’s a reward system for carrying on like that, so I see why people do it. They’re lonely, so they say it, and other people will echo it. But that just creates a default setting of alarmism that doesn’t line up with reality.

There doesn’t seem to be as much space for interior thought. Everything is immediate. Everything is public. How do we regain a sense of perspective on urgent (or maybe not-so-urgent) political or external threats? How do we regain a sense of identity rooted in something other than panic?

I think we have to just allow ourselves to be conflicted. That’s at the root of this. I always say if you’re not conflicted, you’re either lying or you’re not very smart. When I was a columnist for years, this was my approach: I’m not trying to convince you to come over to my side. I’m inviting the reader to think alongside me as I try to sort things through. So in this book, I’m self-scrutinizing. It’s a self-examination. It’s not a polemic.

To answer your question, what’s missing is a willingness to sit in your own confusion because it’s uncomfortable. That’s not rewarded, frankly. And I think, again, the role of the writer is to say things that might confuse readers and upset them and [provoke them to] send you hate mail. That’s actually the job. What I find astonishing is the amount of people in media who have just decided that they’re going to say the obvious, that they’re going to make a career out of identifying their audience and giving the audience what that audience expects again and again and again.

People will say things to me in private like, “Oh, well, what I really think is this. It’s not quite as simple as what I write, or [what I put on] social media, or whatever. But I would never want to say that.” Then why are you in the job? What are we doing here?

To me, what’s satisfying about being a writer is being able to say the thing that a lot of people are thinking but are afraid to say, or can’t articulate. Otherwise, what’s the point? I would much rather be in a band or something.

This interview has been condensed and edited for style and clarity. You can listen to the full conversation, and don’t forget to subscribe to The Reason Interview With Nick Gillespie.

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