Gus Van Horn men­tions the dif­fi­culty of argu­ing against the government’s use of behavior-​​modifying tech­niques in mixed-​​government contexts:

Unfor­tu­nately, every­one is so used to the gov­ern­ment own­ing the roads ... that few so much as bat an eye when they hear of the gov­ern­ment look­ing for ways to psy­cho­log­i­cally manip­u­late peo­ple into doing its bid­ding. Indeed, in this lim­ited con­text, it is hard to argue pro­duc­tively against the gov­ern­ment tak­ing advan­tage of such knowl­edge about human perception.

As a law stu­dent, this topic has caused me a great deal of con­cern over the past few months. I have wanted to write some­thing about it, but have not had the time or energy to do so in any great detail. Now that the semes­ter is over, I intend to put some sub­stan­tial effort into it. I will use this post to record my ini­tial thoughts on the prob­lem, in antic­i­pa­tion of a more thor­ough, well-​​written post at some point in the future.

Con­sti­tu­tional Law really got me started think­ing about this issue. So much of Con Law is skirt­ing, evad­ing, ratio­nal­iz­ing, or out­right ignor­ing con­tra­dic­tions cre­ated by unex­am­ined bad premises. I hope to develop sev­eral con­crete exam­ples, but for now, take the exam­ple of stu­dent speech (the Tin­ker line of cases). Stu­dents are pro­tected by the First Amendment’s guar­an­tees of free­dom of expres­sion, but schools have a sig­nif­i­cant inter­est in car­ry­ing out their edu­ca­tional mis­sion, which may at times require cur­tail­ing stu­dents’ abil­ity to speak freely on campus.

In my head, there is no prob­lem here. The First Amend­ment applies only to gov­ern­ment actors. A school, as a pri­vate actor, may run itself as it sees fit, and may cur­tail stu­dent speech as much as it wants. Stu­dents who do not like it may take their busi­ness elsewhere.

But wait! Most schools are not pri­vate actors. The gov­ern­ment runs them. There­fore, the schools are sub­ject to First Amend­ment restric­tions. Now what do we do?

No mat­ter what stan­dard of review you apply to restric­tions on school speech, there must be at least a legit­i­mate state inter­est in reg­u­lat­ing the speech. In school speech cases, the state inter­est is in car­ry­ing out the edu­ca­tional mis­sion of the school — the same inter­est a pri­vate school would have in reg­u­lat­ing stu­dent speech, except here it is being offered by the government.

On the one hand, the oper­a­tor of a school has a legit­i­mate inter­est in reg­u­lat­ing stu­dent speech in fur­ther­ance of its edu­ca­tional mis­sion. But on the other hand, gov­ern­ments have no such legit­i­mate inter­est. A gov­ern­ment should not be able to get around some­thing like the First Amend­ment sim­ply by engag­ing in an activ­ity that ought to be pri­vate. Gov­ern­ment shouldn’t be able to inherit the rights of pri­vate par­ties by co-​​opting a pri­vate role.

Instead of ques­tion­ing the premise — that gov­ern­ment schools are accept­able — the legal sys­tem has cre­ated a com­plex, obscure, non-​​objective doc­trine for bal­anc­ing indi­vid­ual rights against gov­ern­ment inter­ests.

“!”

The idea that indi­vid­ual rights and gov­ern­ment inter­ests are things that can con­flict and there­fore must be weighed and bal­anced is so obscene that it makes me phys­i­cally sick to my stom­ach every time I read a court opin­ion express­ing it. Gov­ern­ment has only one legit­i­mate inter­est, as expressed in the four most impor­tant words of the Dec­la­ra­tion of Inde­pen­dence: To secure these [indi­vid­ual] rights.

So when a case like Morse v. Fred­er­ick (the “bong hits 4 jesus” case) comes up to the Supreme Court, the ratio­nal thing to argue is that no bal­anc­ing is required — the mere exis­tence of a pub­lic school vio­lates indi­vid­ual rights, includ­ing the student’s free speech rights. A ratio­nal legal sys­tem ded­i­cated to pro­tect­ing indi­vid­ual rights would pro­gres­sively limit the pow­ers of pub­lic schools to the point where they could no longer operate.

But ours doesn’t do this, because “soci­ety” places a value on pub­lic edu­ca­tion, and because “democ­racy,” as expressed in the leg­is­la­ture, shows that “the peo­ple” want pub­lic schools. And who are the courts to ques­tion the will of the people?

All of this is impor­tant to me because I will one day be a lawyer. I will argue on behalf of clients. Can I eth­i­cally argue what I think will get my client the best result (the best result being the result clos­est to an objec­tive ideal result), if in mak­ing that argu­ment I must give sanc­tion to the unchal­lenged false premise? Or do I chal­lenge the false premise and lose my case, and per­haps my license? (You can lose your license for mak­ing a legal argu­ment that is not, in the court’s opin­ion, ratio­nally sup­ported by exist­ing law. Argu­ing that pub­lic schools are uncon­sti­tu­tional would be such an argu­ment. It would also be a wrong thing to argue given the cur­rent approaches to con­sti­tu­tional law — by all the widely accepted jurispru­den­tial mod­els, pub­lic schools are con­sti­tu­tional. And because they’re con­sti­tu­tional, it is not in the power of the courts to do away with them, even though they really do vio­late indi­vid­ual rights.) By lim­it­ing what premises may be chal­lenged, the courts get stuck with all these con­tra­dic­tions among indi­vid­ual rights and gov­ern­ment inter­ests. If you can’t chal­lenge the false premises, you’re stuck in a sit­u­a­tion with no right answer.

How do you argue for what is right in sit­u­a­tions where there is no right answer?

I call these sit­u­a­tions “sun­dae spe­cials,” because of a metaphor that occurred to me almost a year ago: This is like ask­ing whether you want sprin­kles on your giant poi­son sun­dae. How do you make that deci­sion, except by ignor­ing the gross under­ly­ing evil?

Other con­crete exam­ples include gay mar­riage (con­flict between equal pro­tec­tion and the wel­fare state), the draft (do we allow dis­crim­i­na­tion based on gen­der in order to get fewer peo­ple drafted, or do we require Con­gress to draft qual­i­fied men and women, in the inter­est of equal pro­tec­tion?), and free­dom of reli­gion (mis­ap­pli­ca­tion of the prin­ci­ples of Free Exer­cise and No Estab­lish­ment leads to con­tra­dic­tions between the two clauses).

I will be writ­ing more coher­ently about this sub­ject in the future. Com­ments and sug­ges­tions for avenues of research are welcome.