The Volokh Conspiracy

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Judge James Ho Defends Ilya Shapiro and Color Blindness at GULC

"And so, if Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too."


On Tuesday, Judge James Ho was scheduled to speak to the Georgetown Federalist Society Chapter about fair-weather originalism. But in light of recent events, Ho decided to talk about another topic: Ilya Shapiro, cancel culture, and color blindness. National Review wrote about Ho's remarks, which a Georgetown student kindly shared with me. Here, I will offer a few highlights.

First, Ho vigorously defends the freedom of speech, not just on constitutional grounds, but on pragmatic grounds. The best way of knowing your own position is to confront those who disagree with you.

So cancel culture is not just antithetical to our constitutional culture and our American culture.  It's completely antithetical to the very legal system that each of you seeks to join. . . .

If you disagree with Ilya Shapiro—if you think his understanding of the law is absurd—if you think his vision for our country is awful—here's what I say:  Bring him onto campus—and beat him!

Second, Ho explains that the people lobbing charges of racial discrimination are often the very people who are engaging in racial discrimination. Ilya, who advocates for color-blindness and equality, vigorously opposed racial discrimination.

So make no mistake:  If there is any racial discrimination in statements like these, it's not coming from the speaker—it's coming from the policy that the speaker is criticizing. That's the unfortunate irony in this whole discussion.  If you asked Ilya, I am sure he would say that he's the one standing up for racial equality, and that his opponents are the ones who are supporting racial discrimination.  You don't have to agree with him—but it's obvious that's where he's coming from.  And yet I don't hear Ilya trying to punish others for taking a different view on racial equality.

Third, Ho lines up with Shapiro. If Ilya gets cancelled, so should Ho.

Ilya has said that he should have chosen different words.  That ought to be enough. . . . I stand with Ilya on the paramount importance of color-blindness.  And that same principle should apply whether we're talking about getting into college, getting your first job, or receiving an appointment to the highest court in the land. Racism is a scourge that America has not yet fully extinguished—and the first step in fighting racial discrimination is to stop practicing it. That's all Ilya is trying to say.  That's all he has ever tried to say. And so, if Ilya Shapiro is deserving of cancellation, then you should go ahead and cancel me too.

I understand that Ho's remarks will be published. They warrant a careful read.