The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Life as an Academic Defender of the Intuitively Obvious
Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.
Academics are supposed to discover and promote counterintuitive, nonobvious ideas. That should be especially true for me, given that I hold many unpopular views, and am deeply opposed to populism of both the left and right-wing varieties. A Man of the People I am not.
But, especially in recent years, much of my work actually consists of defending intuitive ideas against other experts who reject them. When I describe these issues to laypeople, I often get the reaction that the point in question is just obviously true, and incredulity that any intelligent person might deny it.
Some examples:
1. Widespread voter ignorance is a serious problem for democracy. Academic experts have generated a large literature trying to deny this; I critique it in works like Democracy and Political Ignorance: Why Smaller Government is Smarter. It is ironic that this anti-populist idea is, on average, more readily accepted by ordinary people than by academic experts. But that's been my experience over more than 25 years of writing and speaking about this subject.
2. "Public use" means actual government ownership and/or actual use by the public, not anything that might benefit the public in some way. The Supreme Court and lots of legal scholars disagree! See my book The Grasping Hand: Kelo v. New London and the Limits of Eminent Domain, for why they're wrong. In teaching cases like Kelo v. City of New London, I usually end up spending much of the time explaining why the Court's rulings might be right (even though I oppose them myself). Most students find these decisions intuitively repugnant, and it is my duty - as an instructor - to help them to see the other side.
3. "Invasion" means an organized military attack, not illegal migration or cross-border drug smuggling. The Trump administration, multiple state governments, and a few academics say otherwise. I have written various articles (e.g. here and here) and amicus briefs (see here and here) explaining why they're wrong.
4. The right to private property includes the right to use that property, and significant restrictions on the right to use qualify as takings of private property under the Constitution. The Supreme Court has long said otherwise, and lots of legal scholars agree. For why they're wrong, see my article "The Constitutional Case Against Exclusionary Zoning" (with Joshua Braver). I have a forthcoming book chapter that gets into this issue in greater detail.
5. The power to spend money for the "general welfare" is a power to spend for purposes that benefit virtually everyone or implement other parts of the Constitution, not a power to spend on anything that Congress concludes might benefit someone in some way. The Supreme Court disagrees, and so do most legal scholars.
6. The power to regulate interstate commerce is a power to regulate actual interstate trade, not the power to regulate any activity that might substantially affect the economy. Once again, the Supreme Court, plus most academics, disagree. When I teach cases that interpret the Commerce Clause power super-broadly, such as Wickard v. Filburn and Gonzales v. Raich, I often get the same kind of student reaction, as with Kelo, discussed above: the students intuitively hate these results, and I have to spend most of the allotted time explaining why the Court might be right.
7. Emergency powers should only be used in actual emergencies (defined as sudden crises), and courts should not assume an emergency exists merely because the president or some other government official says so. Instead, the government should bear the burden of proving that an emergency exists before it gets to exercise any emergency powers. A good many experts and judges disagree, at least in some respects, and so too do most presidential administrations.
In some cases, the above premises have counterintuitive implications, even fairly radical ones (this is especially true of points 1, 4, 5, and 6 above). But the premises themselves are intuitive ones that most laypeople readily accept, but many experts and other elites deny.
I do, of course, have various works where I defend counterintuitive ideas, such as these:
1. Immigration restrictions inflict enormous harm on natives, not just would-be immigrants.
2. Voting in elections does not create meaningful consent to government policies (see, e.g., Ch. 1 of my book Free to Move: Foot Voting, Migration, and Political Freedom).
3. Racial and ethnic groups - including seemingly "indigenous" ones - do not have collective property rights to land that entitle them to exclude others (see Ch. 5 of Free to Move and this article).
4. Organ markets should be legalized, and are no more objectionable than letting people do dangerous work for pay, such as being a lumberjack or an NFL player.
But defending the intuitive and even the seemingly obvious is an outsize part of my publication record.
I certainly do not believe that intuitive ideas are always right, and counterintuitive ones always wrong. Far from it! If intuition were an infallible guide to truth on contentious issues, we wouldn't need expertise.
I am not entirely sure why I have ended up defending so many intuitive positions. One possibility is that I have much less love and patience for legal technicalities than many legal scholars do, and thus am more attracted to arguments based on fundamental first principles (many of which have an intuitive dimension). Also, as a libertarian in a field where most people have widely differing views, there may be an unusually large number of situations where my predispositions diverge from those of other experts, and some of them are also cases where the views of the field diverge from common intuitions.
That said, there is some advantage to defending intuitively appealing arguments in situations where the opposing view is either dominant among experts, or (as in the case of "invasion" above) has the support of a powerful political movement. Having intuition on your side makes persuasion easier.
In some cases where most experts oppose an intuitive view, it's because their superior knowledge proves the intuition wrong. But there are also situations where that pattern arises because of some combination of ideological bias and historical path-dependency. I think that is what happened in the property rights and federal powers examples, discussed above. It can also happen that such biases afflict commentators and government officials on one side of the political spectrum who have incentives to make it easier to implement "their" side's preferred polices (I think that is right now the case with "invasion").
If you can identify situations where a view widely accepted among experts or elites diverges from intuition without good reason, it creates opportunities for especially compelling books and articles. It's probably no accident that works defending intuitive views figure disproportionately among my most widely cited publications.
That said, I am probably not the most objective judge of whether I have identified the right intuitive ideas to defend. That question can't be answered just by relying on intuition! Readers will have to decide for themselves.
