(Bloomberg Opinion) -- Have a look, if you would, at this image:
Is it a duck, or is it a rabbit? Many people see it as a duck; many others see it as a rabbit. You might see it as one and then as the other, maybe with some effort.
You might try simultaneously to see the image as both a duck and a rabbit, but that is not possible. At any moment, it is one or the other; it is not both.
If you can easily see it as one and then the other, congratulations. You might be especially creative.
The philosopher Ludwig Wittgenstein used the duck-rabbit figure to explain that there is a difference between “seeing that” and “seeing as.” When you see a table, you are seeing “that” it is a table. It just is a table. But when you see clouds in the sky forming an image of a face, you are seeing the cloud formation “as” a face. In the latter case, your own perspective is crucial.
If you see a duck, you might think that you are seeing “that.” But you are really seeing “as.” People often confuse the two.
Why do some people see a duck, and why do others see a rabbit?
A likely answer points to the importance of our preconceptions. For example, researchers have found that people of all ages, and particularly those between the ages of 2 and 10, were significantly more likely to see the image as a rabbit on Easter Sunday.
In support of this general explanation, emphasizing preconceptions, have a look at this image:
Do you see an old woman, with her nose to the left, or a young woman, looking over her shoulder?
Younger people have been found to be more likely to see a young woman; older people are more likely to see an old woman. That finding fits well with the idea that our preconceptions help determine what we see. Indeed, some young people cannot see an old woman in the picture, and some old people are unable to see a young woman.
The duck-rabbit image is both puzzling and fun. It also helps us understand current social divisions, including those in both law and politics.
Supreme Court nominee Amy Coney Barrett is a “textualist,” committed to following the ordinary meaning of congressional enactments. But what is that meaning? Textualists insist that they see a duck. But it might also be a rabbit.
Consider the Constitution’s Equal Protection Clause, which says, “nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws.” Some textualists think that these words clearly require color-blindness — and so forbid affirmative action programs. If you treat people differently on the basis of race, it’s just not “equal.” (It’s a duck!)
But is that so clear? Maybe the Equal Protection Clause doesn’t require color-blindness at all. Maybe it was not meant and understood as a prohibition on preferential treatment of members of minority groups. You can stare at the text all you like, and you won’t get a clear answer to that question. (Maybe it’s a rabbit!)
When Republican-appointed judges insist that a constitutional text means one thing (typically favored by the political right), and when Democratic appointees insist that the same text means something else (typically favored by political liberals), preconceptions are often at work, in the form of political or moral commitments. If you want to believe that affirmative action programs are unconstitutional, you might find it obvious that the Equal Protection Clause forbids them.
The problem is that in such cases, textualists aren’t “seeing that.” They are “seeing as.”
Something similar happens all the time in politics. Suppose that 1,000 Americans are shown the exact same clip of an ugly encounter between the police and a set of protesters. Some viewers will see brave and restrained officers, struggling to protect law-abiding citizens against a potentially violent mob. Other will see an out-of-control police force, threatening peaceful protesters, who are simply exercising their constitutional rights.
In fact, Yale law professor Dan Kahan and his colleagues have shown essentially that: People’s political commitments determine how they “see” a protest — and in fact how they see essential facts, such as whether protesters threatened and obstructed pedestrian bystanders.
Duck-rabbit, meet contemporary politics.
It’s obvious that many people admire President Donald Trump and that many people don’t. What’s less obvious is that when those with different views witness him say or do something, their preconceptions produce radically diverse judgments about what he actually said or did.
In a country as divided as the U.S. now is, it is increasingly difficult to identify agreed-upon paths forward. To do that, here’s a good start: Try to understand why some people are seeing so many rabbits, and why others are seeing only ducks.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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