Cross posted from Pruning Shears.

The sharp exchange between Ted Cruz and Dianne Feinstein at last week’s Senate Judiciary Committee hearing produced somewhat typical partisan reactions: conservatives thought Cruz had the better of the exchange; liberals, Feinstein. There was a definite gender angle as well though. A number of women noted Cruz’ condescending attitude towards Feinstein and wondered if a man would have had his qualifications and experience so breezily dismissed. Some on the right obliged in supporting this point by breezily dismissing Feinstein’s qualifications and experience.

Steve M, a liberal at No More Mister Nice Blog, wrote a minor dissent from the left. Before continuing, though, I would like to make the FOLLOWING QUALIFICATION IN BOLD AND ALL CAPS: These observations are general and not meant to be taken as categorical. Writing that men gravitate towards one kind of argument or women another is not meant to be taken as meaning that all men or all women think a certain way.

Here is the generalization. Men generally gravitate towards (and find more persuasive) arguments that proceed from abstract principles, whereas women generally gravitate towards (and find more persuasive) arguments that proceed from lived experience. That’s not to say men don’t value lived experience or women don’t value abstract principles, just that they seem to be more persuaded by one than the other.

OK, so Steve writes that “Feinstein [came] off as dodging [Cruz'] opening question,” that “faced with the opportunity to trump what Cruz regards as his ace, Feinstein fails,” and concludes: “Democrats have to be able to refute this cloacal tsunami of bad ideas on their own terms. If a guy like Ted Cruz is going to go all ‘constitutional’ on Dianne Feinstein, then she and her fellow Democrats need to know precisely how to throw the way the Constitution has actually been applied in the real America (as opposed to Tea Party Fantasy America) back in Cruz’s face.”

Also note how he frames Feinstein’s response:

“I’m not a sixth grader,” she told the freshman Tea Party favorite. “I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it … it’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture.”

He omits some key comments between “I’m not a sixth grader” and “I’m not a lawyer” though (emph. added):

I’m not a sixth grader. Senator, I’ve been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I’ve looked at bodies that have been shot with these weapons. I’ve seen the bullets that implode. In Sandy Hook, youngsters were dismembered. Look, there are other weapons. I’ve been up — I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it. This doesn’t mean that weapons of war and the Heller decision clearly points out three exceptions, two of which are pertinent here. And so I — you know, it’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture.

When Cruz makes his argument from a purely Constitutional perspective, he is arguing from abstract principle – and choosing his preferred rhetorical ground. If Feinstein answers in the same language she is ceding the rhetorical advantage to him. Instead she answers in the way the issue is rhetorically pertinent to her, which denies Cruz the advantage he tries to seize.

Feinstein’s highlighting the impact of those principles in the real world is not (as Steve M. suggests) dodging the question or responding with a non sequitur. She is answering in the language that is most persuasive to her. Perhaps as a man Steve would have liked an answer from abstract principle, but Feinstein’s answer seemed to resonate pretty widely.

In any debate where both of those weigh heavily I suspect the public will ultimately side with whichever seems more compelling. Feinstein’s answer struck me as very compelling since the human cost of our gun violence is so horrific, and Cruz’ appeal to the Constitution dry, and even somewhat callous, by comparison We’ll have to see how it plays out though.


The debate might be altered by the one interesting bit of news from the exchange: Cruz’ apparent blanket extension of First Amendment protection to all books. He clearly believes it would not be Constitutional to say “the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

That is an eloquently stated principle. But it is also one that would extend First Amendment protection to a book full of child pornography. Ted Cruz did not voice any kind of qualification, so evidently he believes Congress ought never, under any circumstances, say that a book or category of books lies outside the protection of the First Amendment.

Principles by themselves do not have values; invoking something on principle is ethically neutral. A principle is simply “a comprehensive and fundamental law, doctrine, or assumption.” For instance, here is a principle: African Americans are more ignorant and criminally inclined than other Americans. It is a bigoted principle, one unsupported by any reputable research, one contradicted by the research that does exist, and one that has been used to justify a staggering amount of evil throughout our history. But it’s a principle!

Similarly, “state’s rights” is a principle. Is it a good one or a bad one? Well it doesn’t have to be either, but it has been invoked to defend some of the most morally abhorrent practices in our nation’s history. So no matter how fine it may sound in the abstract, in our lived experience it drags a considerable amount of freight behind it.

That’s what is happening now in the gun debate and the broader debate about the Constitution. Some people, apparently unlike Ted Cruz, believe that the First Amendment is not absolute and doesn’t, for instance, protect child pornography. Similarly, some people believe that assault weapons are the Second Amendment equivalent of child pornography and therefore are not eligible for that Amendment’s protection.

Those who believe otherwise and wish to invoke the principle of the thing are welcome to do so. But they will need to counter those like Feinstein who remind everyone of just how much blood has been shed in support of that principle. They will also need to accept that there are certain downside risks to the pure invocation of principle, and that even a well formed one is not a shield against all arguments. Some principles are bad; others can lead to inconvenient places. That would be the case if, for example, Ted Cruz’ positions on assault weapons and child pornography are different from the ones logically implied by his stated principles.