Sundae Specials (Initial Thoughts)

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.

Tom G Varik