On his book Animus: A Short Introduction to Bias in the Law
Cover Interview of June 13, 2017
Lastly
I have several hopes for this book. First, like most legal
scholars, I hope to influence judges. Animus doctrine is quite important, but
it’s seriously under-theorized. I hope that the book convinces judges that the
Supreme Court’s previous animus cases have implicitly created a coherent animus
doctrine that judges can use when deciding cases. The book attempts to reveal
and illustrate that doctrine, and to present it in a way that judges can employ
when deciding actual cases.
I also hope this book triggers more theoretical discussion
among legal scholars about the future of equal protection law. Equal protection
law today is adrift. As I said earlier, the Court has largely abandoned the
political process theory approach. Nothing has replaced it. Animus doctrine can’t
fill that hole completely. However, it can provide part of the solution. That
part is an important one: the rise of xenophobia and cultural conflict (for
example about sexual orientation and transgender identity) has raised the
specter of government action motivated by simple dislike of particular
persons—the core of the animus idea. Thus, a well-crafted animus doctrine can
play an important role in the development of an approach to equal protection
that responds to the issues prevalent in twenty-first century America.
Finally, and most generally, I hope the book triggers
thought and discussion among legal experts, students, and educated laypersons,
about what our constitution should mean. In writing this book I intentionally
avoided overly-technical jargon and fine analytical distinctions, in favor of
broad-brush analysis. Such technicalities have their place. But there is an
important place for informed discussions between citizens about what their
constitution means, and what it should mean.
Unfortunately, many Americans know little about fundamental
constitutional concepts such as equal protection. This book attempts to
introduce Americans to an important aspect of that concept, in a sophisticated
yet accessible way. The issues to which animus doctrine responds are important
ones in modern America. For that reason, Americans should be acquainted with,
and feel able to discuss, ways our constitutional system can respond to those
issue. One of those ways is through the animus doctrine. I hope this book
contributes to Americans’ understandings of that idea, and stimulates critical
thinking about it.
The dominant premise in evolution and economics is that a person is being loyal to natural law if he or she attends to self’s interest and welfare before being concerned with the needs and demands of family or community. The public does not realize that this statement is not an established scientific principle but an ethical preference. Nonetheless, this belief has created a moral confusion among North Americans and Europeans because the evolution of our species was accompanied by the disposition to worry about kin and the collectives to which one belongs.Jerome Kagan, Interview of September 17, 2009
[T]he Holocaust transformed our whole way of thinking about war and heroism. War is no longer a proving ground for heroism in the same way it used to be. Instead, war now is something that we must avoid at all costs—because genocides often take place under the cover of war. We are no longer all potential soldiers (though we are that too), but we are all potential victims of the traumas war creates. This, at least, is one important development in the way Western populations envision war, even if it does not always predominate in the thinking of our political leaders.Carolyn J. Dean, Interview of February 01, 2011
Lastly
I have several hopes for this book. First, like most legal scholars, I hope to influence judges. Animus doctrine is quite important, but it’s seriously under-theorized. I hope that the book convinces judges that the Supreme Court’s previous animus cases have implicitly created a coherent animus doctrine that judges can use when deciding cases. The book attempts to reveal and illustrate that doctrine, and to present it in a way that judges can employ when deciding actual cases.
I also hope this book triggers more theoretical discussion among legal scholars about the future of equal protection law. Equal protection law today is adrift. As I said earlier, the Court has largely abandoned the political process theory approach. Nothing has replaced it. Animus doctrine can’t fill that hole completely. However, it can provide part of the solution. That part is an important one: the rise of xenophobia and cultural conflict (for example about sexual orientation and transgender identity) has raised the specter of government action motivated by simple dislike of particular persons—the core of the animus idea. Thus, a well-crafted animus doctrine can play an important role in the development of an approach to equal protection that responds to the issues prevalent in twenty-first century America.
Finally, and most generally, I hope the book triggers thought and discussion among legal experts, students, and educated laypersons, about what our constitution should mean. In writing this book I intentionally avoided overly-technical jargon and fine analytical distinctions, in favor of broad-brush analysis. Such technicalities have their place. But there is an important place for informed discussions between citizens about what their constitution means, and what it should mean.
Unfortunately, many Americans know little about fundamental constitutional concepts such as equal protection. This book attempts to introduce Americans to an important aspect of that concept, in a sophisticated yet accessible way. The issues to which animus doctrine responds are important ones in modern America. For that reason, Americans should be acquainted with, and feel able to discuss, ways our constitutional system can respond to those issue. One of those ways is through the animus doctrine. I hope this book contributes to Americans’ understandings of that idea, and stimulates critical thinking about it.