Nancy MacLean and the Lazy Jury Fallacy

If you think certain policies will lead to a bad outcome, it doesn’t mean supporters of those policies intend that bad outcome.

Trevor Burrus
Research Fellow, Constitutional Studies

Trevor Burrus is a research fellow at the Cato Institute’s Center for Constitutional Studies. His research interests include constitutional law, civil and criminal law, legal and political philosophy, and legal history. His work has appeared in the Vermont Law Review, the Syracuse Law Review, and the Jurist, as well as the Washington Times, Huffington Post, and the Daily Caller. He holds a BA in Philosophy from the University of Colorado at Boulder and a JD from the University of Denver Sturm College of Law.

I propose a new fallacy, which I’m calling the “lazy jury fallacy.” Here’s how it works:

  1. Someone believes that policy X leads to undesirable outcome Y.
  2. They infer that proponents of policy X intend undesirable outcome Y.

It’s very simple, and incredibly common. You see it when someone on the right says “the welfare state destroys the family, therefore the proponents of the welfare state want to destroy the family.” You see it when someone on the left says “deregulating the financial sector will lead to a big bank oligarchy, therefore proponents of deregulation want a big bank oligarchy.” I’ve called it the “lazy jury fallacy” because juries are allowed to infer intent from facts, and a lazy jury would do that very poorly (I’m open to other suggested names if anyone has a better idea).

In my life and career, I’ve encountered the lazy jury fallacy an untold number of times-​-​most recently in Nancy MacLean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America , a book that has stirred up criticism like few books I can remember. MacLean purportedly tells the story of how Charles Koch, Nobel laureate James Buchanan, and a secretive cabal (often including the Cato Institute) have conspired to undermine democracy and install an oligarchy. Buchanan’s work in developing public choice theory is a central focus of the book. He is characterized as a nefarious figure whose supposed opposition to the Supreme Court’s decision in Brown v. Board of Education led him to promote privatizing education, which was just the first stop on a career-​long, scorched-​earth campaign to subvert the “will of the people” and empower oligarchs.

But MacLean’s story isn’t remotely true, and critics have discovered so many willful distortions and strained manipulations of Buchanan’s and other’s words that it becomes hard to imagine how someone trained in history could accidentally make such egregious errors. (To see the list of errors, head over to Jonathan Adler’s post at the Volokh Conspiracy blog. It is truly astounding.)

As I painfully make my way through the book, I’ve struggled to identify the source of MacLean’s mistakes. Assuming she is not intentionally and willfully mendacious (which I don’t rule out), I must look for something in her approach that is leading her to err systematically. I believe the cause is the lazy jury fallacy. MacLean’s biggest mistake, and perhaps the one that is behind all her distortions, is to read her ideology into the goals of her political opponents.

Here’s MacLean committing the lazy jury fallacy in the introduction to Democracy in Chains (you could actually open up MacLean’s book to almost any page and find an example):

The dream of this movement, its leaders will tell you, is liberty. “I want a society where nobody has power over the other,” Buchanan told an interviewer early in the new century. “I don’t want to control you and I don’t want to be controlled by you.” It sounds reasonable, fair, and appealing.… For all its fine phrases, what this cause really seeks is a return to oligarchy, to a world in which both economic and effective political power are to be concentrated in the hands of a few. (xxxii)

I’m sure MacLean has a difficult time understanding how anyone could believe in libertarian principles. To her, libertarianism is so obviously incorrect that there must be an explanation, other than the coherence of the ideas, for why it has any adherents. She commits the lazy jury fallacy to provide that explanation: libertarian policies would entrench oligarchs, enrich the wealthy, and harm minorities, so that must be what libertarians want.

Of course, MacLean and her ideological fellow travelers are far from the only group that commits the lazy jury fallacy. One reason I wanted to identify and specify it is because it’s so prevalent across the ideological spectrum.

On the gun-​control debate, for example, we see it on both sides:

“Gun controllers want people to die helplessly in the streets as victims of crime.”

No, they want policies that they believe will mitigate crime through other means, such as social insurance and better police presence.

“Gun rights supporters want parking lot disputes to be settled by gunfire.”

No, they believe that, if carrying guns was broadly and easily available, such instances would be rare.

Fundamentally, the lazy jury fallacy is about being uncharitable to your ideological opponents. It occurs when we don’t take our opponents at their word, or, perhaps more commonly, don’t even ask them to explain why hold their beliefs. The lazy jury fallacy allows ideological opponents to mutually discover malice in their counterparts rather than ignorance or honest disagreement. As such, it is a fallacy fit for these factious times.