Have recent rulings by the Supreme Court subverted fundamental elements of our constitutional order? Are there circumstances in which the…
The case against the imperial judiciary has been a staple of conservative polemics since at least the 1973 Supreme Court decision in Roe v. Wade. By the late 1990’s, the editors of First Things magazine were suggesting that the process had reached crisis proportions and was leading to “the end of democracy.”
But conservatives have not been alone in their anxiety. In the wake of the Supreme Court decision that brought the 2000 presidential election to an end, and of a series of cases concerning federalism and the “sovereign” dignity of the states, many liberals have also inveighed against the judicial usurpation of legislative prerogatives and the substitution of naked politics for the restraints and procedures of law. On both the Left and the Right, some have called for limiting or even abolishing the Justices’ power to declare laws unconstitutional.
The Court’s recent rulings on affirmative action (Grutter v. Bollinger and Gratz v. Bollinger) and sodomy (Lawrence v. Texas) have imparted fresh life to these themes. Especially but not exclusively on the Right, observers have once again decried the activism of judges who ignore both constitutional precedent and the claims of elected lawmakers in order to pursue their own policy ends. The specter has been raised of, if not the end of democracy, at least the end of constitutional law.
In an effort to assess current attitudes toward the judiciary and its place in American democracy, the editors of COMMENTARY asked a group of prominent intellectuals and scholars to address the following questions:
- Have recent rulings by the Supreme Court subverted fundamental elements of our constitutional order? If so, exactly how grave is the situation, and is responsibility to be laid equally at the feet of liberal and conservative Justices?
- Controversial court decisions have been rationalized by appeals to an “emerging” democratic consensus or (as in Lawrence) to human-rights norms elsewhere in the world. Is there any legitimacy to this development? In deciding constitutional questions, are there circumstances in which the Supreme Court is justified in reaching beyond its own precedents and the Constitution itself?
- Do you see any merit in proposals to limit the power of the Court? More broadly, what (if anything) should be done to contain or roll back the imperial judiciary?
The responses, thirteen in all, are printed below in alphabetical order.
This symposium is sponsored by the Edwin Morris Gale Memorial Fund.
Robert L. Bartley
The Supreme Court’s latest rationale for affirmative action is worth quoting, illustrative as it is of the current trend in judicial activism. Here is the key passage from Justice O’Connor’s majority opinion in Grutter v. Bollinger, the case involving the University of Michigan’s law school:[R]acial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal-protection principle. . . .
We take the law school at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
From a legal standpoint, O’Connor’s stance is ludicrous. We are issuing a decision, the Court says, but no one should take it as stare decisis. In fact, we understand that the equal-protection principle enshrined in the Fourteenth Amendment prohibits the policies we hereby sanction. But because of our view of the current social situation, this part of the Constitution is hereby suspended. We hope that the social situation will change, and when it does we hope some future Court takes the opposite view.
If I had invested my life in the law, I would find this, if not horrifying, at least disgusting. It makes a mockery of the highest legal ideals: that the law should be rooted in settled and predictable principles; that courts should follow established precedent; that, if laws need to be changed in light of new circumstances, courts should defer to elected representatives. Surely, even for those of us who see the law as one of many different institutions surrounding and supporting our democracy, society suffers when the courts deviate from these principles.
Yet, in the broader context of American history, the attitudes of the Court deserve more sympathy, even from those of us who disagree with many of its rulings. This context revolves around both the issue of race, the great stain on American history, and the specific genesis of the recent spate of judicial activism.
As recently as the mid-20th century, a hundred years after the war to eradicate the stain, an American black coming of age could by no means expect to be judged by individual merit; exceptional individuals aside, his race would be a handicap. Although society had by then made crucial efforts to curtail discrimination, those efforts had been frustrated by abuse of one of our institutions, the right of unlimited debate in the U.S. Senate. There, the filibuster had become not a right of debate but a legislative veto.
With the legislative route closed, leadership fell to the judicial branch, which acted decisively in Brown v. Board of Education (1954). But with Brown, the Warren Court also jumped feet first into social policy, and later history shows why legislative solutions are much to be preferred. In the school-busing cases, judges professing to speak from categorical principles found themselves overriding the educational mission of schools and imposing unrealistic costs on children, not only white but black.
A decade later, the legislative route having been cleared, the Voting Rights Act of 1965 removed a last barrier to equal status for blacks. The remaining issue was how long the catching-up process would take. With lingering disadvantages in educational opportunity, socio-economic attainments, role-modeling, and so forth, some kind of jump-start seemed reasonable. This was the rationale for affirmative action, an attempt to help disadvantaged blacks without establishing racial quotas or allowing group rights to override individual merit.
Of course, we all know how it has worked out. De-facto quotas have become the norm, talented blacks have come to feel that affirmative action taints their accomplishments, and political constituencies have encrusted themselves. Still, in the context sketched above, O’Connor’s opinion in Grutter seems much more reasonable. A jump-start, yes, but not a permanent division along racial lines. The issue is when to back away. She says 25 years hence; my own instinct is that a good time would have been right now. In particular, I find her reliance on the good faith of the academic community touchingly naive. But I also find it hard to assert a categorical constitutional argument against affirmative action. My case against it is, instead, prudential and pragmatic.
I also recognize that courts find it difficult to be pragmatic when themselves professing to speak in categorical constitutional principles. With Brown, the Warren Court spit out the bit of judicial restraint. Rather than restrict itself to overriding the filibuster on racial issues, it scanned American society for errors it could correct. It rewarded the crusade against religion by Madalyn Murray O’Hair, overturning school prayer and setting in motion a strain of litigation that still has the Court deciding how many Santas are needed to balance a crèche. Police forces around the nation have perhaps learned to cope with Miranda v. Arizona (1966), but not without turmoil. These cases and others surely demonstrate the high price society pays for judicial overreaching.
The most famous, and most serious, case is Roe v. Wade (1973). This had essentially no constitutional footing. Worse, it gave us the culture war. Abortion foes never had their say in the political arena; ironically, Roe mobilized evangelicals who since the Scopes trial in 1925 had eschewed involvement in politics. On the other side, abortion advocates, now armed with a constitutional imprimatur, became ever more militant, repeatedly asserting that any compromise—restrictions on “partial birth abortion,” for example—would collapse their whole edifice.
Yes, then, Roe was wrongly decided. Yes, it was the result of an imperial judiciary. Yes, it is horrifying to those who believe that life begins at conception, and that any abortion is murder. Yes, it continues to inflame our politics.
And yet. Not all Americans—indeed, not close to a majority—do accept that life begins at conception. What if abortion had been, properly, left to the legislative process? I very much doubt the “at conception” definition would have been written into law. To judge by what other modern nations have done, we would have ended up with something that looks a lot like Roe‘s three-trimester division.
Besides, the Supreme Court has been wrong before. In his eloquent dissent in Planned Parenthood v. Casey (1992), Justice Scalia cited the Dred Scott decision and the Court’s opposition to the New Deal. In those cases, as in Roe, the Court no doubt sacrificed some of its legitimacy, and no doubt the high ideals of the law were besmirched. But somehow the Republic survived.
The key is, as that great legal mind Mr. Dooley remarked, “th’ supreme coort follows th’ iliction returns.” Despite continuing frustration, we are already beyond the activist assertiveness of the Warren era. Whatever it lacks in legal logic, the majority opinion in Grutter is moderate in tone. It tries to put limits, in logic and time, on its own activism (although we cannot be sure those limits will hold).
In the same way, it is hard to get too excited about court decisions overturning sodomy laws. Those laws are not really meant to be enforced anyway, and as Scalia noted in his dissent in Lawrence v. Texas, many conservatives, too, would oppose them in a legislative forum. A much more serious problem is a potential Supreme Court decision upholding interstate recognition of gay marriages. Polls suggest that such a decision would cut divisively against the grain of American opinion.
The answer to this, I think, lies not in specific limitations on the judicial branch but in the general political process. By the nature of lifetime tenure, the judiciary is often the last branch to register a new era in society’s opinion. That is why the judiciary is the last hope of the liberal consensus that prevailed from FDR through JFK. A more conservative consensus has dominated presidential elections for a generation, and the Republican party has now taken a legislative majority.
That the judiciary is now the battleground is evidenced by the filibusters against judges nominated by the Bush administration. Republicans control the Senate with 51 votes, still far from the 60 needed to close debate. However, further elections loom. In the 2004 contests, nineteen Democratic seats are at stake, ten of them in “red” states carried by President Bush.
Further Republican gains, even if not providing all of 60 votes, would certainly make filibusters more difficult and potentially expensive for Democrats. A conservative shift in the judiciary would become easier. At least as important, the gains would be heard by present judges, as the 1936 elections created the “switch in time that saved nine.”
In elections nothing is certain, and mine is not a guaranteed answer to the threat of an imperial judiciary. But it is a far more plausible answer, I think, than a crusade against the Court for offenses that most Americans would consider perhaps mistakes but not intolerable ones. Critics intent on changing the judiciary should put their efforts into changing the balance of public opinion and of political power.
William J. Bennett
Who will govern the governors? This question, as old as Plato, as old as the founders, was raised throughout the 1960’s on college campuses and in learned discussions about the supposed failures and pitfalls of representative government. At the time, the favored answer was: the Supreme Court—and most particularly the Supreme Court as then constituted under Chief Justice Earl Warren.
That Court, despite a number of meritorious rulings, was in fact busy crafting new law—which is to say, doing the job of the legislature. The First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments became battering rams against various forms of state and federal law. And when the words in those Amendments simply would not suffice for the task at hand—could not be molded to fit desired political-legal outcomes—new rights were created by Justices who, regarding themselves as in effect a new Constitutional Convention, inserted into the existing document words and concepts like “privacy” and “expression” (as in “right to privacy” or “freedom of expression”) that were somehow missing from the original.
Charles Kesler, a scholar of the founding, recently quipped that the worst place to study the Constitution these days is in law school. It is more than a quip: law schools teach constitutional analysis, by which is meant what sitting Supreme Court Justices have written about the Constitution. The Federalist Papers, the debates at the real and original Constitutional Convention, other documents from the era of the founding—these are not seriously studied. No wonder, then, that our lawyers and judges—ignorant of what Jay, Madison, and Hamilton said, wrote, and meant—are under the impression that constitutional law changes with the times and the persons empowered to pronounce on it. No wonder, too, that Supreme Court Justices can quite preposterously imagine a basis in constitutional law for asserting that, for example, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
That sentence is constitutional law, written by three sitting Justices, two appointed by President Ronald Reagan, one appointed by President George H.W. Bush. And that sentence, from Planned Parenthood v. Casey (1992), has now evolved from the aberration it seemed when first uttered into an ingrained element of our jurisprudence, its bedrock authority invoked just this past term to buttress the majority opinion in Lawrence v. Texas.
All this needs to be kept in mind when we hear or read about the damage done by the Warren Court. It especially needs to be kept in mind when we hear liberals complaining about today’s “Republican” or “conservative” Court. Yes, Nixon, Ford, Reagan, and Bush appointees make up seven of the nine Justices on the Court; but we have to thank this same Court for finding unconstitutional a Nebraska ban on partial-birth abortion, for approving racial preferences in a public-university law school, and for discovering in Lawrence v. Texas a constitutional right to sodomy.
The problem may reside in only two or three of those seven appointees. But the solution, clearly, does not rest only in electing Presidents or congressmen of one party as opposed to another. Altogether, such attempts to restrain the “imperial judiciary” have not fared well in the recent past and cannot be counted on to do better in the future. No doubt that is why, over the past two years, many in the conservative movement—or “family movement,” as some have taken to calling it—have been thinking about a constitutional amendment to preserve the concept of marriage as the union of a man and a woman; their fears have become all the more urgent in light of the prospect, now brought closer by Lawrence v. Texas, that the judiciary will next find a constitutional right to gay marriage.
It is somewhat disorienting to think that we have been driven to this: spending our time and energy in order to save, protect, and preserve the family, of all seemingly invincible institutions, from a branch of our own government. But that is precisely what many are nobly trying to do. Will they succeed? The amendment process is both slow and uncertain, and I, for one, cannot think of a single victory that anybody, conservative or liberal, has won in over forty years by resorting to it. Controversial amendments are simply too easy to stop.
The legislative route seems no more promising. Whenever Congress has tried to reassert its equal status in the constitutional order, passing legislation in order to mitigate what it deems to be judicial error, the Court has managed to reassert its arrogated supremacy by ruling as it will do once such legislation is brought before it. Court-stripping efforts invoking Article III of the Constitution seem to me similarly will-o’-the-wisp.
The problem is deep; it has been long in gestation; and the solution cannot be a quick fix. Recently I took part in a conversation with two well-known and well-versed professors of constitutional law. The topic: how to respond to wrong-headed court rulings. Both of them, having been trained in the day when law schools were good places to learn about the Constitution, were partial to an approach that would employ delicately crafted, black-letter legal language invoking precedent and original intent. In so doing, they were, in effect, proposing to compete in one of today’s professional wrestling matches while adhering to Marquis of Queensbury rules—a lost cause.
Until the appointment of Clarence Thomas, few Justices were in the habit of citing the Declaration of Independence—the first “act of Union” according to Thomas Jefferson and James Madison, who recommended that it be so studied in the nation’s legal academies. As far as I am aware, no elite law school today teaches the Declaration of Independence as “organic law,” even though its understanding of equality and freedom is central to any proper appreciation of the Constitution. One way, therefore, to help restore the Declaration, and by extension the founders’ original intent, might be to encourage the establishment of academic centers like the James Madison program directed by Robert P. George at Princeton. This program, in effect a Princeton “sub-college,” is dedicated to training students in taking the founding seriously. It functions at the undergraduate level, but more such centers should be set up at as many law schools as possible.
Better education is not just a glib thought; it is the crux of the matter. If law schools were not a problem, we would not be speaking of an “imperial judiciary,” holding symposia on the subject, or thinking of ways from the Left or Right to curb it. And while we hope for and work toward better education, we can urge practical and political measures as well. The President needs to take up, with renewed vigor, the task of finding federal appointees who are well-vetted and well-versed in constitutional law—and who know how to defend themselves. When hostile public-interest groups or Senators try to make political hay out of a nomination, the debate should not be shunned but welcomed—and it should be joined not only on procedural grounds but on the merits of the nominee’s judicial philosophy. Conservatives have erred in the past by seeking easily confirmable nominees who have never taken a controversial position or written an opinion touching upon core conservative concerns. It is a mistake to shrink from a fight over a confirmation—after all, it is the Constitution we are fighting for.
As for today’s Supreme Court, critics might usefully take a lesson from Abraham Lincoln, who in the wake of the infamous Dred Scott ruling boldly asserted that when a decision is wanting in all appropriate “claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.” We need not bow to every decision that departs from precedent or constitutional logic. Such decisions may be viewed as the end of the matter for a particular case; they need not be viewed as the end of the matter for all time. Keeping an eye on the larger picture, we can move to redress their effects—by means of legislative responses where possible, in extreme circumstances even by amendment, but above all by going to the root of the problem and beginning seriously and steadily to undertake the long, arduous task of legal reeducation, preeminently by redirecting the attention of professors and students alike to the Constitution and the intentions of its framers. Only by succeeding at that task will we finally be able to say once again, with Hamilton, that the judiciary is indeed the branch of government “least dangerous to the political rights of the Constitution.”
It is crucial to recall, in this season of conservative discontent with the U.S. Supreme Court, that two years ago liberals were enraged by (and still fume over and plot revenge for) what they regarded as the Court’s unpardonable intervention in the 2000 Florida election controversy. Grutter and Lawrence have in common with Bush v. Gore that all are hard cases, in which respectable constitutional goods can be found on both sides of the question. At the moment, the Court is bearing the brunt of the strain that these hard cases have imposed on our constitutional order.
Bush v. Gore stemmed from a freakishly close presidential election that turned on legal challenges rooted in real silences, gaps, and ambiguities in Florida law, federal law, and the Constitution. The recent cases arise out of controversies concerning core constitutional issues—the boundaries of personal freedom and the contours of equality under the law. Although the constitutional order is holding up, a tendency to equate law with morality and politics, evident in Grutter and Lawrence and even more so in the writings of the legal scholars who have assumed the role of explaining the Supreme Court to the public, is increasing the strain.
Bush v. Gore ignited a firestorm of scholarly criticism. Almost immediately after the Court’s December 12, 2000 decision, the legal academy seemed to rise up and, almost with one voice, to denounce the 5-4 decision as lawless, undemocratic, and poisoned by conservative partisanship. To be sure, emotions were running high: the Court had never before decided a case that had the foreseeable consequence of producing a winner in a disputed presidential election, and the Court had reasons, rooted in separation-of-powers principles, for refraining from taking the case until the political process had been given more time to resolve the controversy. Nevertheless, the majority opinion identified a well-accepted constitutional principle: the equal-protection clause of the Fourteenth Amendment prohibits states from debasing or diluting citizens’ votes, or subjecting their votes to arbitrary and disparate treatment. The Court reasonably found that, in a number of ways, the recount ordered by the Florida Supreme Court violated that principle, by unconstitutionally applying either varying rules and standards or no rules and standards to the question of which ballots should be recounted as well as to the question of what was to count as a legal vote.
But, although the Court’s opinion was certainly open to criticism, few scholarly critics paused long enough in their recriminations even to state accurately the Court’s holding. With apparently good conscience, prominent scholars adopted the pose of legal analysis only to spurn legal analysis. The scholarly war against Bush v. Gore marked a culmination, decades in the making, of the politicization of legal scholarship.
Of course there is an irreducible element of moral and political judgment in adjudication. The serious question is whether judges introduce moral and political judgments in the effort to resolve the law’s silences, gaps, and ambiguities or instead invoke them as part of an end run around the law.
Unfortunately, the reasoning by which the Court justified its decision in Grutter to uphold the University of Michigan law school’s affirmative-action program appears more like an end run around the law. It is not that racial diversity is incapable of contributing to intellectual diversity, which is the form of diversity that law schools rightly pursue. Nor is it that we lack an interest as a society in having minority students attend elite law schools and then go on to occupy public positions of prominence and power. Nor again is it that the Constitution absolutely forbids states to use racial classifications. Rather, the problem is that the Court’s precedents in the area of equal-protection law required Justice O’Connor, writing for the majority, to subject to “strict scrutiny” the law school’s controversial claims both about the benefits of racial diversity in the classroom and about the actual operations of its admissions process. This, however, O’Connor declined to do.
Strict scrutiny is the most severe and searching form of equal-protection review. It is triggered when states classify on the basis of race; state actions and state-funded actions rarely withstand it. Although she purported to apply strict scrutiny, O’Connor in fact took the law school at its word, essentially accepting its characterization both of the benefits of racial diversity and of how its admissions office achieved those benefits, while refusing to take seriously the criticisms Grutter’s lawyers made of both. O’Connor thereby transformed the most severe and searching form of equal-protection review into the most deferential form. Whatever its political consequences, Grutter does not represent a creative extension of the law of equal protection but a disregard of its imperatives.
Similarly, in Lawrence, Justice Kennedy’s majority opinion seemed to follow the logic of his moral and political judgments rather than the logic of the law. True, many of these moral and political judgments have a strong basis in our fundamental beliefs about liberty. Our constitutional culture does link liberty to privacy; it does stress the sanctity of the home; it does place a premium on consent, especially the consent of adults to actions that take place in the privacy of their homes and that do not cause physical harm; and it increasingly recognizes that the intimate lives of gays and lesbians are not the law’s business. But as a matter of constitutional law, the Court’s due-process precedents required Justice Kennedy to subject the Texas statute prohibiting homosexual sodomy to “rational scrutiny.” This, however, Justice Kennedy declined to do.
Rational scrutiny is not strict scrutiny; it is, rather, the most deferential form of due-process review. It can be applied, according to the Court’s case law, unless the challenged regulation implicates a “fundamental right or liberty”—that is, a right that is “deeply rooted in this nation’s history and traditions” and “implicit in the concept of ordered liberty.” Since rational scrutiny requires only some conceivable rationale, state actions (like the Texas statute outlawing homosexual sodomy) almost always pass it. Yet while refraining from declaring the right at issue in Lawrence to be fundamental, Kennedy subjected the Texas sodomy statute to a searching review, and on that basis found it unconstitutional. Like O’Connor’s majority opinion in Grutter, Kennedy’s majority opinion in Lawrence appears to bow to the Court’s precedents while creating precedents afresh.
Constitutional law is a demanding discipline. Because it involves the application of rigorous reasoning to materials—constitutional text, structure, history, and case law—that are in many instances susceptible of competing readings, that frequently touch on our most cherished principles, and that cannot avoid debatable empirical judgments, it gives rise to hard cases involving the day’s most divisive issues. Nevertheless, some readings of constitutional law are careless, extravagant, or unsound. When Justices of the Supreme Court commit such readings in their opinions, even for good causes, the danger in the short term is that they thereby encourage the suspicion among legal scholars that when Justices do follow precedent, it is only because they find it expedient to do so.
At the moment, and despite the best (that is, the worst) efforts of legal scholars in the wake of Bush v. Gore, the Court still enjoys an honored place in public opinion. But given the formal role assigned the judiciary in our system and the informal role performed by legal scholars, one could reasonably worry that down the road, the proliferating propensity among the latter to equate law with morality and politics will impose a strain of truly dangerous proportions on our constitutional order.
Robert H. Bork
The question of whether “recent rulings by the Supreme Court [have] subverted elements of our constitutional order” has by now acquired a quaint, antique ring. Even to ask the question seems almost a piece of drollery. The Supreme Court has been beavering away at the underpinnings of the Constitution for 50 years; before that, its acts of subversion were less frequent and served a different ideology but were no less real. Prior to 1937, when FDR remade the Court, conservative Justices worked occasional miracles of transubstantiation with the Bill of Rights. The classic examples are, of course, Dred Scott (1857) and Lochner (1905), the one creating a right to hold slaves under the due-process clause of the Fourteenth Amendment, the other creating a right to make contracts under the same clause. Neither decision had any support in the actual document.
Judicial invention of new and previously unheard-of rights accelerated over the past half-century and has now reached warp speed. It is not just Grutter‘s permission to discriminate against white males and Lawrence‘s creation of a right to homosexual sodomy. The Court has created rights to televised sexual acts and computer-simulated child pornography and, in direct contradiction of the historical evidence, has continued its almost frenzied hostility to religion. The list of activist decisions constitutionalizing the Left-liberal cultural agenda is lengthy.
The term “activism”—the reaching of results that cannot plausibly be related to the Constitution—is used to describe this process and to serve as invective by both sides in arguments between liberals and conservatives. Though there have been conservative activists, it seems to me undeniable that the activism of the Court from the Warren era on has been overwhelmingly liberal. It is interesting that the dominant theme of the Warren Court was equality, hence its heavy reliance upon the equal-protection clause of the Fourteenth Amendment, while today’s Court stresses individualism and emphasizes the liberty component of the same Amendment’s due-process clause. Though both are misuses, the shift does correspond to the movement of Left-liberalism from concern with economic inequality to absorption with “lifestyle” freedoms.
One result of rampant activism is the decline in the intellectual quality of the Court’s opinions. Grutter and Gratz accepted the transparent false-hoods of the University of Michigan about the need for racial diversity in the student body to provide a quality education, abandoning the constitutional practice of strict scrutiny of racial classifications and utterly ignoring the flat prohibition of racial discrimination in the 1964 Civil Rights Act. Lawrence said little more than that attitudes toward homosexual sodomy have changed in the past 50 years and, citing a decision of the European Court of Human Rights, that Europe now recognizes a right to engage in it.
There is an increasing tendency for the Court to rely upon such decisions of foreign courts in creating the constitutional law of the United States. That, to put it gently, is flabbergasting. What the decisions of foreign courts have to do with what the framers and ratifiers of the U.S. Constitution understood themselves to be doing is not explained, and cannot be explained. The result of this trend, if it continues, as it seems likely to do, will be a homogenized international constitutional law reflecting the trendy views of liberal elites here and abroad.
How grave is the situation? Though ludicrous, it is extremely serious. In these and other judgments, the Court is steadily shrinking the area of self-government without any legitimate authority to do so, in the Constitution or elsewhere. In the process, it is revising the moral and cultural life of the nation. The constitutional law it is producing might as well be written by the ACLU.
That fact alone should make it clear that conservatives do not bear the responsibility; they spend their energies writing splenetic dissents and dyspeptic comments like this one. True, liberals grow apoplectic over Bush v. Gore, which they see as their one chance to convict conservatives of activism. Unfortunately for that tactic, the concurring opinion by Chief Justice Rehnquist (joined by Justices Scalia and Thomas) was solidly based on the Constitution and a federal statute, and two members of the liberal bloc on the Court agreed with the majority that the judgment of the Florida Supreme Court in Gore’s favor had to be reversed. To repeat, activism in our time is a liberal phenomenon.
If judicial activism, which means ruling contrary to the Constitution, is improper, which both sides concede, at least rhetorically, then there is no justification for any court’s reaching beyond the Constitution. Ours is a democratic polity, and the Constitution provides the sole authority any judge has for nullifying democratic choices. When there is a felt need for new law, the legislature is capable of providing it. Reaching beyond constitutional precedents, however, is another matter altogether. Judicial misinterpretation of a statute can be rectified by the legislature, but only a court can overrule an erroneous constitutional decision. Correcting a constitutional error is not judicial activism.
The framers made a fundamental mistake by creating a body of lawyers with uncheckable power. That mistake was understandable, because they had no reason to know what courts could become, but the result is that we have an untethered power that overrides democratic governance whenever the mood strikes it. There is no obvious cure for the situation. Congress’s power to make exceptions to the Supreme Court’s jurisdiction, given in Article III, provides no solution. Jurisdiction would then lodge in the state courts under Article IV and could not be removed. Many state courts have become as unrestrained and trendy as the federal courts. In short, there appears to be no way to contain the imperial judiciary.
There was a time when it was said that the Court’s improper expansion of its powers would be held in check by informed criticism from the legal profession. To the contrary, much of the profession, seeing the Court as its lever of power, urges it on to further adventures. In any case, the Court is impervious to criticism. Its attitude is that of the Arab saying, “The dogs bark but the caravan moves on.”
Few subjects engender more results-oriented hypocrisy than the role of the judiciary in a democracy and the related issues of “states’ rights” and “original intent.”
Conservatives rail against elitist courts that overrule majoritarian decisions only when these conservatives agree with the political majority and disapprove of the actions of the unelected “legislators in robes.” Liberals condemn the activism of judges who strike down legislation of which they approve, or who substitute their own politics for those of the political branches of the government.
Similarly, critics invoke states’ rights when they approve of what the states are doing and disapprove of federal intervention, but these same critics are often quick to praise the federal trumping of states’ rights when they agree with the federal government’s position on the substantive issue. Judges invoke original intent (or their interpretation of it) when doing so serves their ends, and ignore original intent when it contradicts their agendas.
This is an old story harking back to the earliest days of the Republic. It should come as no surprise that few politicians really care about the structural issues governing the division of power among the branches, and between the federal government and the states. Politicians get elected because of the immediate results demanded by their constituents, not the long-term structural arrangements debated by constitution-makers and political theorists.
But what is surprising is how many scholars and professors—with tenure, and with no need to pander to constituencies—likewise elevate results over structure, or, more subtly, use structural arguments to produce substantive results they prefer. Since legal scholars influence judicial decisions in many ways—by providing intellectual ammunition, by justifying and rationalizing decisions of which they approve, by themselves becoming judges—this latter phenomenon is extremely important, and should be studied more critically than it has been.
In my experience, most—though certainly not all—legal academics do construct and support structural arguments that produce substantive results of which they personally and politically approve. When, in the early 20th century, progressive state and federal legislatures were enacting social-welfare laws that were being struck down by conservative courts, progressive academics praised judicial restraint and the “passive virtues” of such doctrines as “standing,” “case and controversy,” “mootness,” and “political question.” Decades later, when liberal courts were striking down conservative legislation—especially in the areas of abortion, religion, criminal justice, and civil rights—liberal academics praised judicial activism, while conservatives condemned it. The Supreme Court’s activist intervention in the 2000 presidential election was condemned by liberal activists who disapproved of the result, and praised by at least some conservatives who approved of the result. Now conservatives are demanding that the federal government deny to the states the power to define marriage so as to include same-sex unions, despite the historical fact that family law has traditionally been the sole province of the states.
In light of this pervasive hypocrisy on all sides, is it actually possible to devise an approach to judicial review that is not politically or personally results-oriented? John Hart Ely, in his classic book Democracy and Distrust (1980), came closest to providing a justification for politically neutral judicial checks on popular democratic actions. The proper function of the judiciary, according to Ely’s theory, is to protect the integrity of the process by (1) clearing away the obstacles to political change erected by the majority and (2) facilitating the representation of minorities in the face of prejudice in the political marketplace. By assigning to the courts the role of opening the channels of democracy and protecting minority groups that, as a result of a “malfunctioning” in the political process, are incapable of protecting themselves, Ely confined issues of constitutional interpretation to questions of participation—rather than to the “substantive merits” of the political choices under attack.
What about original intent? There is a wonderfully resonant story in the Talmud that casts an interesting light on this contentious issue. Rabbi Eliezer was engaged in an acrimonious dispute with his fellow sages about a point of law. Eliezer “brought forward every imaginable argument, but [the others] did not accept them.” Finally, in desperation, he invoked the original intent of the Author of the Torah. Eliezer implored: “If the law agrees with me, let it be proved from heaven!” Whereupon, a heavenly voice cried: “Why do you dispute with Rabbi Eliezer, seeing that . . . the law agrees with him?” But the other rabbis rebuked God for interfering in this human dispute: “You have already written the Torah [and] we pay no heed to a heavenly voice.” The message was clear. God’s children were telling their Father: it is our job to give meaning to the Torah that You gave us. You gave us a document to interpret, and a methodology for interpreting it. Now leave us alone. And, according to the Talmud, God agreed, laughing with joy: “My . . . children have defeated Me in argument.”
No single person drafted the Constitution. Our contemporary rabbis in robes cannot call for a heavenly voice to confirm the correctness of their constructions of such terms as due process, equal protection, freedom of speech, or cruel and unusual punishment. But I wonder whether Jefferson, Madison, and Hamilton would not respond to a contemporary Eliezer’s call for authoritative interpretation by declining to interfere and by saying: “It is a constitution you must expound. We wrote its phrases long ago in a different era. Pay no attention to those who would invoke voices of certainty from the grave or the heavens.”
True, to ignore the intent of the framers would be as simpleminded as pretending to know with certainty the singular meaning of language that was probably selected, at least in part, for its capacity for redefinition over time. The paradox of the American system of judicial review—with its concomitant debate over original intent—is that you cannot live comfortably with it or without it.
An America without judicial review would be unthinkable. Although most nations, even democratic ones with traditions of liberty, do survive in its absence, the power of our courts to declare unconstitutional the actions of the other branches has become an indispensable aspect of our sovereignty.
Taken to an extreme, the power of judicial review can be transformed into an undemocratic veto by an appointed and unaccountable aristocracy. A judiciary whose interpretations of such broad concepts as due process and equal protection of the laws are unrooted in some broad historical purpose can quickly become a super-legislature, simply voting to overrule inferior legislatures and executives. But, on the other hand, a judiciary confined by the narrow visions of a past generation is a judiciary incapable of adapting to new dangers unforeseen by the framers.
There is no perfect solution to the paradox of judicial review, the conundrum of states’ rights in a federal republic, or the mystery of original intent. No one—no scholar, justice, lawyer, or layman—has discerned or devised the perfect rationale, limiting principle, or methodology for judicial review. Even Ely’s process-oriented approach raises nearly as many close questions as it answers. This imperfection has become an invitation to hypocrisy on all sides.
Lino A. Graglia
Recent rulings by the Supreme Court are instances of judicial activism that do indeed subvert the system of government contemplated by the Constitution. But this subversion has been going on for a long time.
The three basic principles of our system of government are democracy (or republicanism—i.e., popular self-government through elected representatives; federalism—i.e., decentralized power, with most social-policy decisions made at the state rather than the national level; and separation of powers. Judicial activism—which for practical purposes may be defined as rulings of unconstitutionality not required by the Constitution—amounts to rule by judges and ultimately the Supreme Court: a committee of nine lawyers, unelected and holding office for life, making policy for the nation as a whole from Washington, D.C. The resulting system of government, totally undemocratic, totally centralized, and with the judiciary performing the legislative function, is in violation of all three constitutional principles.
What has subverted our constitutional order is not just the Court’s most recent rulings but the unprecedented power of judges to invalidate as unconstitutional the acts of other officials of government. The consequences could hardly be more grave. The first significant exercise of the power of judicial review against a federal statute was the 1856 Dred Scott decision; by invalidating a political resolution of the slavery issue, this decision seemed to make the Civil War inevitable. More recent exercises of the power of judicial review have given us a system of criminal justice in which the guilt or innocence of the accused is often the least relevant consideration; busing of children in an attempt to increase racial “balance” in schools; the conversion of the abortion issue from one that was being dealt with on a state-by-state basis, with abortion generally being liberalized, into an extremely divisive topic of national moment.
The central fact about constitutional law is that it has very little to do with the Constitution, a brief document that wisely precludes very few policy choices. The great bulk of constitutional cases involve state, not federal, law. Nearly all of them purport to be based on a single provision, the Fourteenth Amendment, or rather on four words in that amendment: “due process” and “equal protection.” In fact, however, the Court’s decisions on basic issues of social policy turn not on those words at all but on the policy preferences of a majority of the Justices. Those preferences almost always mirror those of a liberal cultural elite of which the Justices are a part and, most importantly, the views of elite law-school faculties.
Virtually every one of the Court’s rulings of unconstitutionality over the past 50 years—on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools, government aid to religious schools, public display of religious symbols, pornography, libel, legislative reapportionment, term limits, discrimination on the basis of sex, illegitimacy, alien status, street demonstrations, the employment of Communist-party members in schools and defense plants, vagrancy control, flag burning, and so on—have reflected the views of this same elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political Left. Appointments to the Supreme Court and even to lower courts are now more contentious than appointments to an administrative agency or even to the Cabinet—matters of political life or death for the cultural elite—because maintaining a liberal activist judiciary is the only means of keeping policymaking out of the control of the American people.
Today’s liberal complaint—that the situation has changed under the current Rehnquist Court—is almost entirely a myth. The Rehnquist Court, constant in membership since 1994, consists of four very reliable liberals: Justices Stevens, Souter, Ginsburg, and Breyer. These four can count on being joined on most issues of basic social policy by either Justice O’Connor or Justice Kennedy or, as in Lawrence, both. Thus, the Rehnquist Court not only reaffirmed the constitutional right to abortion created in Roe v. Wade but extended it to so-called partial-birth abortions; not only refused to overrule the infamous Miranda decision but invalidated a federal statute that would have limited it; not only reaffirmed the constitutional prohibition of state-sponsored prayer in schools but extended it to prohibit a nonsectarian, student-composed invocation of the deity at a high-school graduation ceremony. It found the operation of an all-male military academy to be unconstitutional sex discrimination. In a preview of Lawrence, it overturned a provision of the Colorado constitution adopted by popular referendum that precluded special rights for homosexuals. It has now upheld race preferences and disallowed sodomy laws. If this is a conservative Court, what would a liberal Court do?
The Grutter case, while undoubtedly an important victory for liberals, must be distinguished from Lawrence and Bush v. Gore in that it upheld rather than invalidated the challenged policy choice. Actually, it is unlikely that the Fourteenth Amendment, guaranteeing certain basic civil rights to blacks, was meant to prevent a state from granting preferential treatment to blacks. But the Grutter decision is inconsistent with Brown v. Board of Education, once universally understood as prohibiting all official race discrimination; it is also inconsistent with Title VI of the 1964 Civil Rights Act, which prohibits all racial discrimination by institutions that accept federal funds. The Court’s refusals to apply the Act, first in Bakke (1978) and then in Grutter, cannot be seen as other than acts of judicial bad faith.
Liberal complaints about conservative activism by the Rehnquist Court rest almost entirely on Bush v. Gore, a series of federalism decisions, and the fear, now shown to be unfounded, that the Court would disallow race preferences. The five-to-four decision in Bush v. Gore was undoubtedly activist, but arguably consistent with the Court’s earlier interventions in the political process and justifiable as countering the liberal activism of the Florida Supreme Court. The Court’s federalism decisions, whatever their merits, are not likely to prove successful in limiting federal legislative authority.
If one accepts, along with Churchill, that democracy with all its faults is the best form of government—and even the most ardent defenders of judicial review purport to accept this—one must reject the notion that some issues of basic social policy are better decided by electorally unaccountable officials. In our system, the only rationale for unelected judges to overrule policy choices made by elected representatives is that the judges are effectuating the true will of the people as expressed in the Constitution. To accept that judges may invalidate such policy choices on other grounds is to accept not only that they may act dishonestly but, more significantly, that they are the appropriate policymakers on the issue involved. At the very least, this proposition should be openly defended, not established by a ruse. As for permitting judges to conform domestic law to foreign law, that is to abandon national sovereignty, something almost no political leader would undertake to defend. Finally, the idea of an “emerging democratic consensus” would seem to obviate any need to argue for judicial intervention in the first place.
The claim that the Court’s rulings of unconstitutionality are based on the Constitution has been patently fictional for so long as almost, one might suppose, to achieve a degree of legitimacy. Since no one can actually believe these are the commands of the Constitution, might it not be fair to assume that the Constitution has in effect been amended by popular acquiescence in the Court’s power to assign to itself the final decision on any issue it may choose? That power is, in any event, the present reality, and constitutional scholars have created a cottage industry devising ingenious theories to show that the Court’s decisions result not from indefensible policymaking but from some esoteric form of constitutional interpretation.
The available means of limiting the Court’s power—constitutional amendment, impeachment, limitation of jurisdiction—have for various reasons turned out to be more theoretical than real. Hope once lay in the making of new appointments, but the failure of ten consecutive appointments by four Republican Presidents to change the direction established by the Warren Court has shown this hope, too, to be unreliable. Rule by judges can certainly be solved by abolishing judicial review, but the real problem resides less in judicial review as such than in the Court’s reading of the Fourteenth Amendment as a text without any definite meaning. That problem could be solved either by returning the Fourteenth Amendment to its original meaning or by giving it any definite meaning, thus making it a judicially enforceable rule.
The system of checks and balances set up by the Constitution has broken down where the Supreme Court is concerned; that institution now checks but is not checked by the other branches. President Lincoln dealt with the abuse of judicial power by announcing that although he would not defy the Court’s Dred Scott decision, neither would he accept it as settling the slavery issue. Congress and the President could similarly make clear that contemporary Supreme Court rulings of unconstitutionality without basis in the Constitution deserve not respect but censure. If the political will were there, means could be found to return the country to the experiment in popular self-government in a federalist system with which we began.
Today’s judiciary really is “imperial” and, to a remarkable degree, extra-constitutional. The courts have done serious damage to the American political and social order. They therefore pose a major political problem. But this is a problem that defenders of the constitutional and political order—call us conservatives—have so far failed to deal with successfully.
The failure goes back at least three decades. By the mid-1970’s, the “imperial judiciary” was already understood to be a problem, not just on the far reaches of the political Right, or among the constitutionally fastidious, but in (more or less) mainstream circles like this journal. The federal courts were in the process of imposing a disastrous educational and social policy of forced busing all around the country, based on a claim of an amazingly broad power to make up for alleged past wrongs. Meanwhile, the Supreme Court had in 1972 outlawed the death penalty as it was then administered, and in 1973 had struck down the abortion laws of all 50 states—both startlingly extra-constitutional actions.
But this moment of opportunity to curb the courts was lost. For one thing, Gerald Ford’s appointment of John Paul Stevens in 1975 meant the conservative bloc on the Court would remain a decided minority for the near future. And the Court itself undertook something of a tactical retreat. A narrow majority of Justices refused to extend busing to the suburbs in 1975, and lower courts gradually permitted busing decrees to unwind in subsequent years. The Court backed off on the death penalty in 1976, and even began to backpedal a bit on abortion, allowing for some restrictions. The ambiguous 1978 Bakke decision on racial preferences muddied those particular waters as well. And Jimmy Carter had no opportunity to appoint any new Supreme Court Justices, which perhaps made the whole issue less pressing in the 1980 presidential campaign than would otherwise have been the case.
Still, liberal activist judges were a concern of Ronald Reagan and of his supporters, and it seemed possible in 1981 that a new assault could be launched against the imperial judiciary. But the effort was half-hearted and ineffective. Reagan used his first appointment to add Sandra Day O’Connor to the Supreme Court in 1981. The rhetorical critique of the court by Attorney General Edwin Meese in 1985-86 failed to gain political traction. And then the Supreme Court nomination of Robert H. Bork, the single most prominent critic of the imperial judiciary, went down to defeat in the Senate in 1987.
The Bork defeat remains the most important and decisive setback in the attempt to rein in the imperial judiciary over the last decades. It is not just that Bork failed to get on the Supreme Court, and that Anthony Kennedy went on in his place. It is that critics of the imperial judiciary lost, or were perceived to have lost, the public debate. Anti-Bork Senators—Democrats and Republicans alike—paid no price for opposing him. The Reagan White House showed little interest in dwelling on the defeat, or in drawing public lessons from it. The succeeding Bush administration was even happier to move on.
As was, apparently, everyone else. Attempts to overturn the Court’s flag-burning decision fizzled. For his first vacancy, George H.W. Bush nominated David Souter. Meanwhile, the successful challenges to the Court were coming from the Left. In the late 1980’s, the Court had interpreted certain provisions of the 1964 Civil Rights Act somewhat narrowly. Congress rushed to overrule the Court’s “conservative” statutory interpretations, and, after some resistance, President Bush and the great majority of Republicans acquiesced. This set the pattern for the 1990’s, when, for example, Republican governors and legislators in state after state did little or nothing to restrict the use of racial preferences by state institutions. It thus should have come as no surprise this year that the Court majority was unwilling fundamentally to take on racial preferences, when even conservative elected politicians had shied away.
Meanwhile, although Clarence Thomas (barely) made it on to the Court in 1991, his attackers, too, paid no political price for their assault on his person. Indeed, one of the few Democrats who supported Thomas, Senator Alan Dixon of Illinois, lost in a primary challenge in 1992. Bill Clinton of course won the presidency that fall, and his first Court nominee in 1993 was Ruth Bader Ginsberg, who was every bit as ideological a figure as Bork, and should have been as controversial. The failure of conservatives to raise any appreciable fuss over her nomination spoke volumes about the asymmetry of the larger fight over the courts: the Left has been far more willing to play brutal partisan politics, and since it has also controlled the law schools and the elite media, it can dominate the debate in the circles of “respectable” opinion as well.
In the next few years, the Court struck down federal term limits and the Colorado initiative limiting gay rights. Almost no Republicans succeeded, or even much tried, to make a political issue of these overrulings of democratic choices. Then, in Vermont, the state Supreme Court virtually required the legislature to institute civil unions for homosexuals. The legislature and the governor complied, and any backlash was muted. That governor, Howard Dean, is now the leading Democratic candidate for President, and though he signed the civil-unions legislation in the dark of the night, he now boasts about it before Democratic primary audiences. Meanwhile, the White House visibly heaved a sigh of relief earlier this summer when there was no Supreme Court vacancy, because it was worried about a fight on abortion, race, gay rights—all the issues we have allowed the Court to resolve.
So is a revival of constitutionalism hopeless? Perhaps not. The current, unprecedented Democratic filibusters in the Senate of several certifiably well-qualified Bush appellate-court nominees may prove a key moment of liberal overreaching. Can the Democratic party really sustain the position that no federal judge should be confirmed if he has, as one Democratic Senator complained, “deeply held” (i.e., conservative) moral beliefs—even if the nominee’s legal qualifications are impeccable and his public record distinguished? Furthermore, it is hard to see how the courts, and the Court, can fail to be a big issue in the 2004 presidential election, with the next President likely to be in a position to make at least two appointments, perhaps more. And what if the Massachusetts Supreme Court requires the legalization of gay marriage?
The Bork defeat occurred almost a generation ago. Perhaps the momentum is about to shift. But the obstacles remain great. Since the Left believes law is just politics, it plays judicial politics more ruthlessly than do conservatives. And because the Left is so aware of the judiciary’s key role in enforcing and sustaining left-wing cultural hegemony, and in blocking even minor conservative victories, it will fight bitterly.
Still, if 2002-2003 was, as Michael Greve of AEI has put it, “the term the Constitution died,” maybe now is an opportunity for fresh thinking and bold action to revive constitutionalism. Have the results of ideological and results-oriented liberal jurisprudence—for example, requiring the removal of the Ten Commandments from a state courthouse—finally gotten so out of hand as to make possible, at last, a return to first principles? Could 2004 be the year constitutionalism is reborn? Could a Bush second term transform the judiciary in the way FDR’s second term did?
Not likely. But, perhaps, possible.
I am appalled by a number of recent Supreme Court decisions that adopt an almost antebellum view of “state sovereignty” and limit congressional power to protect vulnerable minorities (such as the disabled). And, of course, there is Bush v. Gore, ably criticized in these pages by Gary Rosen (November 2001). Nonetheless, I am unwilling to accuse the current Court majority of “subverting” the Constitution. I was outraged during the 1980’s by the savagery of some of the criticisms directed at Justice William Brennan. Going well beyond disagreement, some critics implied that he self-consciously subordinated his obligation of constitutional fidelity to his desire to promote his liberal views. This was scandalously unfair. It is equally unfair to level similar accusations at conservative Justices with whom I often disagree. (Bush v. Gore may be an exception.)
There are various legitimate approaches to constitutional interpretation, especially if legitimacy is defined by the actual performance practices of well-trained lawyers and judges, and the current majority’s arguments certainly meet this standard. Honorable people can in good faith disagree, even vehemently, on what the Constitution means. One can oppose a point of view—and, indeed, advocate that the Senate refuse to confirm nominees with objectionable points of view—without suggesting that adherents of such views are “subversive.”
What most angers me about the current Court—and what is most genuinely “innovative”—is its claim to enjoy a monopoly of constitutional wisdom. In my book Constitutional Faith, I distinguish between “catholic” and “protestant” approaches to institutional constitutionalism. A catholic approach emphasizes the hierarchical authority of a given institution. A protestant (or “talmudic”) approach, by contrast, recognizes the existence of multiple interpreters, with constitutional doctrine at any given time being the outcome of a complex conversation among more-or-less equal interpretive partners (and adversaries).
The current Court is “papalist” in the extreme. The late Alexander M. Bickel once spoke of the Court as leading a “vital national seminar,” but our current seminar increasingly consists of a judicial monologue, with grades dependent on agreement with the Court’s own views. Today’s majority displays a barely concealed contempt for the possibility that Congress has some role to play in determining the meaning of the scarcely self-evident words of the Fourteenth Amendment.
Although the claim of exclusive judicial authority has been advanced most insistently in the past decade, it can be traced to a number of important Warren Court cases, including Cooper v. Aaron (the Little Rock school case) and Nixon v. U.S. (the tapes case). There is certainly responsibility to be assigned both to liberal and conservative Justices and, just as relevantly, to their respective academic acolytes.
Both conservatives and liberals are devoted to robust, albeit conflicting, notions of constitutional meaning vigorously enforceable by courts against legislative opposition. No Justices on the current court and relatively few academics adopt the notion of constitutional minimalism (sometimes called “judicial restraint”) identified with Felix Frankfurter (and even Frankfurter, of course, supported the Warren Court’s signature decision in Brown v. Board of Education and signed the opinion in Cooper v. Aaron). A devotee of such restraint might well have upheld both of the Michigan affirmative-action programs and the egregious Texas sodomy law, on the grounds that both policies represent the outcome of relatively democratic political processes and that the Constitution does not speak with sufficient clarity to justify judicial intervention. Not a single Justice adopted such a position; conservative activists would have eliminated affirmative action, even as more liberal activists were unwilling to countenance the legal validity of the Texas statute.
It should go without saying that there are “circumstances in which the Supreme Court is justified in reaching beyond its own precedents.” The most obvious such circumstance is when one believes that the earlier decision was mistaken. Whatever the importance of precedent, no American, liberal or conservative, has ever viewed it as the end-all and be-all of legal argument.
What makes precedent truly interesting as a form of legal argument is that, as Jeremy Bentham noted almost two centuries ago, it seemingly requires adherence to what one believes to be stupid, counterproductive, or otherwise mistaken decisions. If, after all, one admires the earlier decisions, one is not following precedent; one is simply congratulating the earlier Court for having gotten it right. What is truly irrational is to feel tightly bound by precedents, even if one accepts the view that one ought not overrule them lightly.
It is not clear to me what “reaching beyond . . . the Constitution itself” means. If this suggests that legal argument should be conducted entirely within the “four corners” of the text of the Constitution, then there is the obvious embarrassment that well within these corners is language (in both the Ninth and Fourteenth Amendments) directing an interpreter’s attention to unenumerated rights, including the “privileges or immunities” of United States citizenship. If one ignores this language, one is not remaining “within” the Constitution, one is reducing it.
This language is, to be sure, highly indeterminate. The indeterminacy might counsel certain kinds of judicial modesty, but that is an institutionalist argument; it does not signify that the constitutional interpreter as such need not be concerned with the meaning of such terms as “privileges or immunities.” ( To return to my first answer, one of the most objectionable things about the current majority is its impatience with the very idea that Congress might have a useful role to play in providing content to such terms, or to the equally mysterious command of “equal protection of the laws.”)
A last word on going “beyond the Constitution”: Jefferson and Lincoln are only the most prominent Presidents who have in effect defended going beyond the Constitution when great national exigencies demanded it (just as the Philadelphia Convention clearly went beyond the Articles of Confederation in simply ignoring the command that any amendment be by unanimous consent of all of the states). Indeed, no question is more central to the very enterprise of “constitutionalism.”
This is seen most dramatically in contemporary debates about the treatment of American citizens (and others) who have been declared, by little more than fiat, “illegal combatants” and, therefore, deprived of basic features of traditional American justice, including access to a lawyer or the elemental ability to gain evidence relevant to one’s defense. “Disappearances” similar to those that occurred in Chile and Argentina could indeed happen here, and this possibility should scare us far more than anything the Supreme Court has done (unless, of course, the Court chooses to emulate Michael Luttig of the Fourth Circuit and declare that the President is basically above constitutional constraint when fighting the war against terrorism).
As for looking to transnational and international norms in trying to discern what such notions as due process or equal protection might mean, I see no harm in this. One might well say that a clearly expressed “local norm” ought to trump an international norm, but if we view the relevant constitutional text as quite indeterminate, then why should judges not look to other courts to see how they confronted similar issues?
After all, state courts within the United States often look to other state courts—not because a California court believes itself obligated to follow New York law but rather because a properly humble judge finds it useful to see what colleagues elsewhere have done. Similarly, no one suggests that the views of the European courts should be controlling, only that they provide potential insight. We might take a leaf here from the emphasis in The Federalist on “experience” as a guide, and from James Madison’s own emphasis in his writings on comparative government. Publius would undoubtedly have found it unbearably parochial to be told that we in the United States can learn nothing from the experience of other countries. So should we.
I am skeptical of any proposals “to limit the power of the Court” if this means, for example, new jurisdictional constraints. What I do strongly support is eliminating life-tenure for federal judges. Whatever might have been its appeal in the late 18th century, there is almost nothing to be said for it today. Judicial independence could be protected by single, nonrenewable, eighteen-year terms (which would allow a new appointment to the Supreme Court every two years), followed by full pensions. Steady turnover on the Court would guarantee the arrival of new Justices likely, for better and worse, to reflect changes in public opinion, including opinion about the legitimate role of the Court itself.
No one, however, should believe that any process of appointment or jurisdictional limitations would still the often bitter debates about constitutional interpretation. The Constitution is full of what Justice Robert Jackson termed “majestic generalities,” and it is quixotic to expect a consensus on their meaning. Practically speaking, the best ways to guard against judicial imperialism are, first, to assure a greater diversity of judicial perspectives through more frequent appointments and, second, to resist the “papalist” claims of judicial authority that, if taken seriously, would identify the Court with the Constitution.
The hue and cry over our “imperial judiciary” tends to be a post-hoc phenomenon. A wide array of unrelated judicial behaviors is condemned as “imperial,” but, strangely, this condemnation comes only in the wake of very particular court decisions, the results of which are unsatisfying to critics. A quick search on the Internet reveals that in recent months “imperial judiciary” has been invoked to describe at least one of the following four phenomena: an unelected judiciary usurping the role of a popularly elected Congress or state legislature or both, thus subverting the will of the majority; a court decision wholly unmoored from an “originalist” or strict-constructionist interpretation of the Constitution; a court whose members go about the business of judging by advancing their personal agendas and ideologies; elitist, arrogant judges not content merely to interpret and clarify the law but instead acting as a “super-legislature,” making up new law from the bench.
While any one of these sins is enough to get the Jeremiahs steamed up, it is rare to see all four at play in any one case. Indeed, Roe v. Wade notwithstanding, the most egregious example of a jurisprudential grand slam—i.e., a court disregarding the will of the majority and the Constitution, voting personal ideologies and inventing new law—was the Supreme Court majority opinion in Bush v. Gore.
And while Justice Antonin Scalia famously wrote, in his furious dissent in the 1992 abortion case of Planned Parenthood v. Casey, that “the imperial judiciary lives,” he was excoriating his brethren not for any of the above evils but for their unpardonable sin of adhering to stare decisis: the doctrine that cautions courts to avoid overturning established legal precedent. In short, in Casey he used the phrase not to denounce judicial activism but, on the contrary, to criticize jurisprudential restraint.
The real truth is that most courts engage in most of the four named behaviors most of the time. Anyone who tells you differently is either an idealist or Scalia. Only when the legal result is unpleasant do the words “imperial judiciary” get thrown around. A good example is the Supreme Court’s reasoning in the two Michigan affirmative-action cases, Gratz and Grutter. Conservative critics promptly complained of judicial activism: the Court, they said, was ignoring the plain meaning of the anti-discrimination amendments to reify a “diversity” justification for affirmative action. But an alternative reading is equally possible: honoring the conservative doctrine of stare decisis, a majority of the Court respectfully deferred to the will of the state of Michigan—which had found a compelling interest in continuing these programs.
Similarly with Texas v. Lawrence, in which our elite imperialist Justices were quickly characterized as having invented a right to privacy from the ether. But the decision could as readily be viewed as one in which a respectful bench enshrined a right recognized by the majority of the American populace for years now. Had the shoe been on the other foot—to use the Alan Dershowitz test—and had the Court disregarded the overwhelming preferences of the people in the name of the power of constitutional review, critics could more legitimately have cried “imperial judiciary,” just as they did when, in Romer v. Evans (1993), the Court struck down a Colorado state constitutional amendment repealing local gay-rights laws.
It is, in any case, easy to criticize only Gratz, Grutter, and Lawrence as examples of Supreme Court imperialism. Doing so, however, ignores much of the rest of the past term’s astonishingly activist jurisprudence. Take American Library Association v. United States, in which the same Court that has always favored First Amendment rights of free speech over congressional concerns about pornography in Internet cases determined that Congress could do a better job than local librarians at keeping smut out of the hands of children. Or take State Farm v. Campbell, in which Justice Kennedy set about “making law” by explicitly setting a permissible numerical range for compensatory awards for punitive damages. Or Nevada Department of Human Resources v. Hibbs, where the Court put the brakes on its own “federalism revolution” and approved Congress’s authority to enact the Family and Medical Leave Act, thus allowing state employees to sue the states.
Examples abound. Suffice it to say that, in advancing the claim that this is an imperial Supreme Court, one cannot point exclusively to the cases in which liberal results won the day. If we plan to tar and feather the Rehnquist court, let us at least agree to tar all of its civil-liberties decisions with the same brush.
There are two, related, factors behind the sweeping activism of this Rehnquist Court. Justice O’Connor is the first, in that she has become the single most important member of the court. This is so not only because she routinely casts the crucial swing vote in the majority of close cases each year—during the most recent term she cast thirteen out of the fifteen deciding votes in 5-4 cases—but also because she is the architect of this Court’s decidedly unrestrained form of judicial restraint.
O’Connor has become famous for her tendency to decide cases narrowly, more in the manner of a biblical judge than of a Justice forging new precedent. Her case-by-case approach means that, by necessity, there is little “law” that flows from her decisions. There is only what O’Connor thinks in that specific case. Her views on abortion doctrine, church-state doctrine, the gerrymandering cases, and affirmative action all come down to whether the given facts move her. Appellate briefs are written to sway her, oral argument exists to persuade her, and, after an O’Connor opinion has been produced, confusion reigns in whole areas of the law.
By definition, this means that the role of the judiciary becomes elevated. Neither Congress nor the states can know in advance whether they will be smiled upon the next time around. O’Connor knows best. If there is indeed an imperial judiciary, she is its empress.
Feeding into this is the second factor—namely, the myth of the Rehnquist Court’s judicial restraint. Simply because a pack of Court decisions have struck a blow for federalism or states’ rights does not mean that states are more powerful than they once were. What were cases like Lopez or Morrison—federalism decisions invalidating democratically enacted acts of Congress—if not examples of the Rehnquist Court overriding the democratic process by judicial fiat? In fact, this supposedly restrained Court has overridden acts of Congress at twice the rate of the “wildly activist” Warren Court. With its new, Eleventh Amendment jurisprudence immunizing the states from the reach of federal law, the Court has now set itself up as the arbiter of when Congress really really means what it says it means.
The simple laws of zero-sum physics tell us that whenever a Court takes away rights with one hand (from the states, from Congress, or from the lower courts), and gives away rights with the other (to the states, or back to Congress, or back to the courts), it is behaving imperially. Judicial imperialism thus has nothing to do with liberal results in specific cases, and everything to do with the heavy-handed way in which the Supreme Court bosses around the other branches of government.
But is this a crisis for democracy? I doubt it. The system of checks and balances exists to protect against a too-powerful judiciary, just as it corrects for an over-powerful legislature (the fate toward which those seeking to end judicial review are barreling rather heedlessly). Nor is there anything new or radical about the way the Supreme Court is behaving right now. Alexander Hamilton, in Federalist 78, urged that limits on the legislature “can be preserved in practice no other way than through the medium of courts of justice.” Granting the courts the power of constitutional review has been with us since Marbury v. Madison was decided in 1803. As for the fact that the courts decide most of the most pressing social and political issues of the day, Alexis de Tocqueville observed in 1831 that, “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
Indeed, judges have been deciding cases without regard for the law ever since King Solomon ruled that the contending parties should split that baby. What aspect of today’s crisis over the “imperial judiciary” is, therefore, new and terrifying? Nothing, it seems, but the nomenclature.
This magazine has distinguished itself as one of the few conservative journals to denounce judicial activism—by which I mean nothing more than the failure of courts to defer to legislatures—when committed by judges on the Right as well as the Left. From the other side of the political spectrum, my own magazine has tried to be similarly evenhanded in opposing judicial supremacism wherever it occurs. This has a long history. Beginning in the Progressive era, under such editors as Learned Hand and Felix Frankfurter, the New Republic argued consistently for deference to state and federal economic regulation. In the Warren and Burger eras, under Alexander M. Bickel’s guidance, the magazine questioned the excesses of the Court’s interventions in the culture wars—most notably in Roe v. Wade—while remaining politically pro-choice. And for the past decade, during which I have had the privilege of being legal-affairs editor, it has tried to remain true to the same restrained tradition. We have argued for judicial abstinence across the board, regardless of whether we favor the political results, from Casey v. Planned Parenthood and the right-to-die cases to Bush v. Gore and the affirmative-action cases (just how is Grutter an example of judicial activism, anyway?) to the most recent example of judicial imperiousness, Lawrence v. Texas.
What has been striking, and dispiriting, is how few consistent allies have joined the judicial-abstinence crowd in our by now quixotic campaign against the imperial judiciary. As the published reaction in COMMENTARY to Gary Rosen’s article on Bush v. Gore shows (see the March 2002 issue), most conservatives tie themselves in knots to defend judicial activism when they like the results and to denounce it when they do not. And as the reaction to Lawrence and, earlier, to Roe has shown, liberals have been no less selective in their outrage at judicial adventurousness. In short, there does not seem to be a large constituency—neither on the courts, nor in the political arena, nor among law professors—for principled abstinence, and for this unhappy but unsurprising state of affairs both liberals and conservatives deserve more or less equal blame.
Has the Supreme Court’s bipartisan embrace of judicial supremacism “subverted the constitutional order,” the editors ask? This formulation, I think, is a little too extreme. As a descriptive matter, the Supreme Court throughout its history has tended to follow rather than to challenge the broad currents of national opinion. Even during the Warren era, most of the Court’s interventions—most notably in the school-desegregation, school-prayer, obscenity, and sexual-discrimination cases—were popular with the country as a whole and resisted only briefly by Southern outliers who soon admitted defeat. It was not until Congress committed itself to fighting discrimination that meaningful desegregation and sexual integration occurred. The Courts, in other words, have a limited ability to precipitate social change, even when they presume to lead rather than follow.
The Rehnquist Court has been similarly canny both in picking and in conducting its fights, which is why the majority of its decisions have been popular with the country as a whole. When the Court has rooted its most controversial decisions in relatively solid constitutional arguments—as in the school-prayer, obscenity, and anti-miscegenation cases—the losers could understand and eventually accept the constitutional principles at stake, even if they disagreed with particular applications. As for those rulings—from the decision to uphold Roe to the decision to uphold Miranda—defended on thin constitutional grounds, these failed to inspire a national political backlash because they reached results that national majorities accepted.
The two exceptions have been the original Roe decision and Lawrence, both of which rest on especially shaky constitutional grounds. In both cases, the Court reached ahead of national opinion as a whole and triggered important political backlashes. But both Roe and Lawrence also confirm that the courts have limited ability actually to subvert the constitutional order. When a deeply felt current of popular opinion feels thwarted, it can always try to force a judicial retreat.
The conservative counterreaction to Roe ultimately failed in its attempt to force such a retreat because, by 1992, a majority of the country had come to accept the moderate compromise that Roe represented—namely, that early-term abortions had to be protected and late-term abortions could be restricted. The reaction to Lawrence may turn out to be similarly mixed. Although there is no national constituency today for reviving sodomy laws, the expansiveness of Justice Kennedy’s majority opinion, combined with expected lower-court decisions recognizing a right to gay marriage, may put some wind behind the sails of a constitutional amendment to define marriage as the union of a man and a woman. The fate of that amendment, in the end, will be determined not by the courts but by how strongly the American people feel about the issue.
All of this is to say that, ultimately, national majorities will have their way, and the Court cannot obstruct them for very long, regardless of whether or not it acts in a principled fashion.
Was the Court wrong to appeal in Lawrence to an “emerging democratic consensus” in America and Europe? I certainly think so. There may be some role for recognizing a shift in tradition when the shift is overwhelming and undeniable, as in Griswold (1965), where Connecticut was the only state in the Union to forbid the use of contraceptives. Even Justice Scalia has acknowledged that state constitutional amendments might be legitimate evidence of a changing national consensus about what counts as cruel and unusual punishment. But the Court in Lawrence was remarkably freewheeling in detecting an emerging consensus from the fact that only thirteen states continue to ban sodomy today, as opposed to the 26 states that had done so in 1986.
This statistic confuses legislative and judicial repeals. In fact, only four state legislatures chose to repeal the bans during the past two decades, while eight states saw their bans struck down by state courts, often under the same expansive “privacy” reasoning that the Court failed to defend in Lawrence—hardly clear and convincing evidence of an emerging democratic consensus. Last year, in Atkins v. Virginia, the Court was similarly freewheeling when it managed to find a national consensus forbidding the execution of the mentally retarded after noting that fewer than half of the 38 states that allow capital punishment had recently passed laws forbidding the execution of the mentally retarded.
The Court’s glibness in detecting a national consensus before one has actually materialized suggests the special dangers of looking to international authorities for evidence of changing American beliefs. In pluralistic societies, there is so much local variation in opinions on important questions involving the boundaries between the public and private spheres—just compare the American, British, and German attitudes toward surveillance cameras—that abstract appeals to an international consensus threaten to airbrush away the very real differences in people’s values, making democratic evolution through the political process impossible.
As for proposals to limit the power of the Court, these, throughout American history, have tended to come from sore losers. The failed proposal by turn-of-the-20th-century Progressives to require a two-thirds vote when the Court struck down acts of Congress, and to allow supermajorities in Congress to overrule the Court, seemed like a confession of angry despair, much like similar proposals today from the other side of the spectrum. Besides, radical court-stripping reforms are generally unnecessary as well as counterproductive, as FDR learned too late. If the country cares enough about an issue, the Court will retreat on its own.
If there is no constituency for judicial abstinence, what can be done to persuade the courts to restrain themselves? In an ideal world, we could try to reconstruct a principled bipartisan consensus about the virtues of judicial deference to the legislatures. But such a consensus has existed in American history only at times when the Court has actively frustrated the efforts of a majority of the people to pass laws that are important to them. Perhaps the gay-marriage debate will precipitate a similar consensus today, but I fear that at this point, both sides are too tainted by their own opportunistic use of the courts to lay down their arms.
An army of interest groups on the Left and the Right has been mobilized to demand from the courts the victories they are unable to win politically; these groups have distorted the politics of judicial confirmation in a way that makes it highly unlikely a principled defender of abstinence would be appointed to the bench, let alone confirmed. In other words, both liberals and conservatives still expect too much out of the courts to realize that both sides might do better with fair fights in the political arena. In the meantime, enclaves like COMMENTARY and the New Republic can continue our embattled crusade. We need allies. Join us.
Cass R. Sunstein
The Supreme Court was right to uphold the affirmative-action program at the University of Michigan Law School. It was wrong to invalidate the affirmative-action program used by that university at the undergraduate level. The Court overreached in striking down the Texas sodomy law. But it would be hysterical to suggest that the Court has subverted the constitutional order, and there is no reason to take new steps to reduce its authority. Though the Rehnquist Court shows an unmistakable tendency to (mostly) right-wing activism, the situation is hardly grave.
To explain these claims, it is necessary to back up a bit.
Begin with some definitions. A decision reflects judicial restraint if it upholds practices under constitutional attack. A decision reflects judicial activism if it invalidates practices under constitutional attack. By these definitions, a decision that strikes down campaign-finance legislation counts as activist. A decision that upholds restrictions on abortion counts as restrained.
These definitions have a large advantage: neutrality. They are purely descriptive. If we define activism and restraint in these terms, we will not complain that decisions are “activist” only if they depart from our own view about how the Constitution is best interpreted.
Of course, a neutral definition, simply because of its neutrality, will not include any evaluation of what the Court has done. So let us acknowledge the possibility of unjustified activism and unjustified restraint. Unjustified activism occurs when the Court invalidates a practice that should be upheld under the best interpretation of the Constitution. Unjustified restraint occurs when the Court upholds a practice that should be invalidated under that interpretation.
Finally, some decisions of the Court are not merely unjustified; they are illegitimate. A decision is illegitimate if it is not plausibly connected with any of the usual sources of constitutional law: text, structure, history, or precedent. By this definition, some decisions show illegitimate activism, whereas other decisions show illegitimate restraint.
Activism and restraint come in both conservative and liberal forms. In its early-20th-century decisions invalidating maximum-hour and minimum-wage laws, the Court displayed a form of illegitimate conservative activism. The Warren Court displayed liberal activism, sometimes unjustified and sometimes illegitimate. Whether conservative or liberal, illegitimate activism is an extremely serious source of concern.
In Grutter v. Bollinger, the Supreme Court upheld an affirmative-action program for law-school admissions at the University of Michigan. In Gratz v. Bollinger, the Supreme Court invalidated an affirmative-action program for undergraduate admissions at the same university. In Lawrence v. Texas, the Court invalidated a Texas law forbidding sodomy between consenting adults.
The first point to notice here is that of the three opinions, Grutter is the only restrained one. It respects the prerogatives of nonjudicial institutions; it refuses to use judicial power to overturn the decisions of countless educational institutions throughout the nation. The activist decisions are Gratz and Lawrence.
The second point to notice is that, of the nine Justices on the Court, not a single one took the consistent path of restraint, which would have been to uphold the two affirmative-action programs and the Texas sodomy law. The third point to notice is that both activist decisions, Gratz and Lawrence, build on decades of judicial precedent and can be read quite narrowly. Both of them overreach, but they are hardly illegitimate.
The affirmative-action cases present the most obvious ironies. The most conservative members of the Court, Justices Scalia and Thomas, purport to be committed to “originalism” as an approach to constitutional interpretation. They seek to understand the Constitution in accordance with its original meaning. But when it comes to affirmative action, originalism apparently goes down the drain. Neither Scalia nor Thomas bothered to investigate whether the Fourteenth Amendment, as originally understood, forbids affirmative action. Their silence is deafening. In fact, careful historical studies suggest that the drafters and ratifiers of the Fourteenth Amendment were entirely comfortable with race-conscious programs designed to help African-Americans.
Perhaps the historical evidence has been misread. What is stunning is that Scalia and Thomas did not address it. Thomas’s eloquent opinion in Grutter emphasizes the view of only one historical figure: Frederick Douglass. To say the least, Douglass was not a drafter of the Fourteenth Amendment, and his views about racial equality are not a good indicator of the original meaning of the amendment.
Suppose that we reject originalism and adopt some other approach to constitutional interpretation. The problem is that it is hard to identify any approach that would justify a Supreme Court decision forbidding affirmative-action programs as they have been voluntarily adopted by countless institutions, both civilian and military, and at every level of government. The Court was right, in Grutter, to refuse to impose a principle of color-blindness that lacks any constitutional basis. Such a decision would be an extraordinary form of judicial activism, perhaps exceeding that in Roe v. Wade itself. It is ironic indeed that many conservatives have been calling for it.
In principle, there are good reasons to object to affirmative-action programs, some of which fail to promote their intended purposes and do more harm than good. But there is no good argument that courts should invalidate those programs on constitutional grounds. The question of affirmative action is under intense scrutiny at all levels of government. If the elected branches or the people want to do away with such programs, they are entitled to do so.
I do not contend that the Gratz decision was illegitimate. The majority was building, not implausibly, on its own precedents, and Gratz is a narrow ruling that does not foreclose a degree of experimentation at the national, state, and local levels. Nonetheless, the decision was wrong.
In Lawrence, the Court overruled its own 1986 decision in Bowers v. Hardwick and suggested that the Constitution’s due-process clause protects a broad right to engage in consensual sex. The Court referred to evolving social values and to international precedents. As a matter of simple policy, I celebrate the Court’s decision. The criminal prosecution of gays and lesbians has no place in a civilized society. But as a matter of constitutional law, there are serious problems.
Usually the Court is reluctant, and rightly so, to overrule its own precedents. In any case, the Court should be reluctant to use the due-process clause as a basis for invalidating legislation that intrudes on liberty or privacy. There was a narrower and more cautious ground, emphasized by Justice O’Connor, for invalidating the Texas law. The Court could have refused to decide whether sodomy laws are constitutional as such, and ruled on the basis of its recent precedents that, under the equal-protection clause, a state is not permitted to say, as Texas attempted to do, that homosexual sodomy is forbidden while heterosexual sodomy is not.
Alternatively, the Court could have pointed to an especially disturbing feature of sodomy laws. In practice, these laws have been used for rare prosecutions and as instruments for arbitrary and selective harassment by the police. As the legal scholar Alexander M. Bickel urged decades ago, the Court might strike down the use of such laws on purely procedural grounds. It was unnecessary to refer to emerging social values or to judgments in other nations, judgments of unclear relevance to interpretation of our Constitution. In practice, changing values do influence the Court; this has become a part of our constitutional tradition. But the Court should avoid contentious claims of this kind when it is able to do so.
A principled advocate of restraint could conclude that the Court should have upheld the Texas law. But I believe that it would have been best for the Court to strike it down under one of these narrower rationales. In my view, Justice O’Connor was right to say that a criminal law that punishes homosexual sodomy, while permitting heterosexual sodomy, is difficult to justify under the equal-protection clause. Does Lawrence then count as illegitimate? Does it threaten our constitutional order? This seems to me utterly implausible. While the Court overreached, it did not act lawlessly. Aside from Hardwick, the Court’s own precedents provide a great deal of support for the Court’s decision. The Lawrence decision can easily be read narrowly, as a decision to forbid the criminalization of consensual sexual activity, in a way that leaves the most difficult and disputed questions to the democratic process.
The important points are the more general ones. It is crucial to distinguish the Court’s restrained Gratz opinion, upholding the Michigan law school’s affirmative-action program, from its two activist ones in Lawrence and Grutter. In the latter two cases, the Court erred. But we should not overreact. To err is human. What I would like to emphasize here is that it is ironic, and more than a little disappointing, that so few critics of Lawrence are also critics of Grutter—and vice-versa.
Perhaps because I expected nothing better, it is hard for me to get terribly exercised over the Supreme Court’s decisions in Grutter and Gratz, the two affirmative-action cases. Yes, these decisions make little constitutional or political-philosophical sense; in fact, they are unhappy reminders that, on these questions, the Constitution now means whatever Justice O’Connor decides it means at any given moment in her perusal of the signs of the times. Yes, Grutter and Gratz further delay the long-awaited and eminently desirable day (a mere 25 years, Justice O’Connor assures us) when Americans will be judged not by race but by the content of their character and the use they make of their native abilities. And yes, to the degree that Grutter and Gratz further embed race-consciousness in American public life, they damage our political culture.
But Grutter and Gratz do not threaten the moral structure of American democracy. Lawrence v. Texas does.
To put the matter bluntly: among the issues starkly posed by the terms of the Court’s decision in Lawrence is whether religiously grounded moral argument will be permitted any place in our common deliberation over public policy. An over-reaction? I think not. Here is why.
The Court is often (and rightly) accused of making things up as it goes along. Lawrence, however, is different, for Lawrence was predictable, and those who predicted an outcome like this some years ago have been shown to be not hysterics of dubious judgment but prescient patriots. For the hard fact of the matter is that Lawrence‘s core declaration—that the state’s sole interest in sexual matters among consenting adults is to protect the unfettered expression of personal autonomy—makes eminent sense. That is, it makes eminent sense if you believe, with Justices O’Connor, Kennedy, and Souter in their joint opinion in Planned Parenthood v. Casey (1992), that “at the heart of liberty is the right to define one’s concept of existence, of meaning, of the universe, and of the mystery of human life.”
Roundly mocked as a clumsy excursion into metaphysics, this bizarre formulation has been a time bomb waiting to explode for over a decade. With Justice Kennedy’s majority opinion in Lawrence, the explosion has now taken place. For this “sweet-mystery passage” (as Justice Scalia refers to it in his Lawrence dissent) has put tens of millions of faithful Christians and Jews on notice. There is a new and jealous god in the land: the imperial autonomous Self. Those who do not swear fealty to this new god are unwelcome in the deliberations of American public life, and their views and their institutions will be under “strict scrutiny”—the assumption being that they are bigots.
As the public debate since Lawrence has already shown, the first test of the new doctrine will involve marriage law. For to judge not only by Lawrence itself but by the standards the Court now invokes for its decision-making—“emerging” democratic consensus (presumably measured by the Justices and their clerks), evolving “human-rights” jurisprudence in Europe, Canada, and elsewhere (even more imperious than the jurisprudence in our own federal courts)—there is no principled ground on which the ancient understanding of marriage as the stable union of a man and a woman can pass constitutional muster. If the supreme liberty right to be secured by the Constitution is the unfettered expression of sexual autonomy, then on what constitutional grounds are we to “limit” marriage to the stable union of a man and a woman? Why not two men? Indeed, why not any reasonably stable configuration of consenting adults, of whatever sex and number?
Lawrence will also have nasty effects in other arenas of public life. The strict-scrutiny standard means that public education will also be under grave pressure. On what constitutional grounds will a local school district now decline to present heterosexuality and homosexuality as anything other than “lifestyle choices,” of no greater consequence than choosing a Springer spaniel over a parakeet as your family’s pet? Canadian clergy already confront the possibility that preaching classical biblical sexual morality could leave them open to legal action on grounds of indulging in “hate speech,” as their refusal to conduct same-sex “marriages” could render them liable to prosecution for denying a couple its “right to be happy” (in the phrase of a Canadian federal cabinet minister). Given Lawrence‘s logic and its strict-scrutiny standard, it would be foolish to suggest that something similar is out of the question here.
Then, to go back to where I started, there is the matter of where biblically serious Jews and Christians fit into Justice Kennedy’s novus ordo seclorum. Instructive in this regard is the fate of morally and religiously serious Catholics in public life. Consider the recent experience of Alabama Attorney General Bill Pryor. Nominated to the 11th Circuit Court of Appeals, Pryor was pilloried by Democrats on the Senate Judiciary Committee this past summer because he thinks Roe v. Wade was wrongly decided. Pryor had reached that judgment (a judgment once shared by liberal icons like Archibald Cox and Alexander M. Bickel) as a man of logic, an adult knowledgeable about basic science, and a student of constitutional history. His judgment on Roe also coincided with the moral teaching of the Catholic Church, of which he is a devout member. For that reason, Pryor was subjected to an inquisition about his “deeply held beliefs” by Senator Charles Schumer of New York, who seems to think that only his deeply held beliefs about the abortion license created by Roe are to be countenanced.
And how did Schumer come to his position, which suggests that serious Catholics who bring religiously informed moral arguments to public life have no place on the federal bench—even if, like Bill Pryor, they have articulated those arguments in an accessible moral grammar and vocabulary that any serious person can engage? I suggest that Senator Schumer got there via the “sweet mystery of life” passage in Casey and its toxic effect on our public life.
Which means that Bill Pryor is not the only one at risk here. What was done to Alabama’s Catholic attorney general (elected to that office, incidentally, in a state where Catholics make up just 3.5 percent of the population) could as easily happen to an Orthodox Jew or an evangelical Protestant with the same views on Roe. Would a similar trajectory be at work with Lawrence? What would prevent it, if the Court continues to construe liberty as license and then enshrines license as the constitutional trump?
What, then, to do? On the gay-marriage implications of Lawrence, conservatives rightly respectful of the Constitution will be tempted to argue against the proposed Federal Marriage Amendment, on several grounds: that marriage has traditionally been a state matter (and an amendment would further erode federalism); that such an amendment would trivialize the Constitution; that there must be other remedies.
Perhaps there are other remedies. I doubt it, but the burden of proof, post-Lawrence, now rests with those who believe they exist. As for trivializing the Constitution, yes, it is a sadness that things have come to this; but one way or another, the Constitution is going to be amended with respect to marriage, and what is preferable, a Constitution tacitly amended by judicial fiat or a Constitution amended through proper constitutional procedures? As for the further erosion of federalism, that, too, is an unhappy prospect; but the homosexual movement has made no secret of its intention to federalize the question of marriage and has now been given a powerful weapon to do so in Lawrence, which seems likely to buttress claims that gay “marriages” or “civil unions” recognized in one state must be recognized in all states under the “full faith and credit” clause. I see no constitutionally serious way to meet this challenge, absent a Federal Marriage Amendment.
Beyond the marriage issue lies the question of revitalizing the democratic process so that issues like marriage and abortion are decided by the people who should decide them and in the forums in which they should be decided: that is, by the people of the United States, acting through their duly-elected representatives. If we are not to find ourselves in the ludicrous position of having to meet every act of federal judicial activism with yet another constitutional amendment, then surely it is time for a serious discussion of how to invoke Article III’s provision that Congress can declare “exceptions” to the Supreme Court’s appellate jurisdiction, in this case precisely to roll back the hegemony of the imperial judiciary.
I realize that this would take more courage than is usually found on Capitol Hill. But it is not easy to see another remedy that, over the long haul, will prevent the U.S. Constitution’s becoming analogous to the constitution of a banana republic. Happily, taking Article III seriously might just have the blessed effect of restoring a measure of robustness to the noble American experiment in democratic self-governance.
James Q. Wilson
When the Supreme Court renders an important decision, the reasons it gives are often more important than the choice it has made. Nowhere is this clearer than in the recent case of Lawrence v. Texas that struck down that state’s anti-sodomy law. Though I was delighted to see the law disappear, I was disturbed by the reasons the majority supplied for effecting that disappearance. The Court greatly widened the right of privacy, loosely based on the due-process clause of the Constitution, and justified this right with scarcely anything more than rhetorical flourishes.
The majority repeated in 2003 a view it had first expressed in 1992 in Planned Parenthood v. Casey, where it emphasized its commitment to Roe v. Wade in these words: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of life.” It reinforced this view by referring to the decision of the European Court of Human Rights, representing 21 European nations, to strike down an Irish anti-sodomy law. It chose to ignore the hostility to sodomy in nations with far larger populations like China, India, Korea, and most African countries.
That some nations oppose sodomy and others ignore it is, of course, irrelevant to the issue. The central question for an American court is whether liberty means the right to define one’s own concept of existence and of the mystery of life. This issue, contrary to what some may suppose when they read such loose language, is very large. At stake is whether the Court’s majority is now inclined to support the libertarian view that no state has the authority to restrict conduct affecting only one’s self and one’s consenting partner. If so, this would mean that there could be no state law against prostitution, bestiality, heroin consumption, physician-assisted suicide, or gay marriage because all of these behaviors involve private, intimate actions that harm no human outsider. I find it hard to believe that the Court would apply its new-found policy so broadly; after all, it is not indifferent to political realities. (It did, for example, unanimously strike down a state law authorizing physician-assisted suicides. But would it repeat that decision today?) But then, in 1973 I found it even harder to believe that a right to privacy could support a constitutional right to abortion; nevertheless, it did.
Obviously, the behaviors I have named differ in their moral significance. But the Court seems to be more interested in privacy than in morality. The police power of the states is all about morality; the Court’s view is that this concern, along with, presumably, the police power that can give legal effect to it, is unimportant. I think that morality is quite important, though, confronted with a constitutional ban, not all-important. Banning or restricting prostitution makes good sense (one wonders what the Court would have done in the Texas case had one gay man paid the other for his services). Banning bestiality and heroin consumption makes even more sense (I will not make the arguments here, though I wonder at any reader who needs arguments). And allowing states to decide on abortion policy is eminently wise (most large and many smaller states would authorize abortions, albeit with the kinds of restrictions now in place in many European countries).
The Texas sodomy case could well have been decided on grounds that would not have broadened the notion of privacy or weakened the concept of state authority. In her concurring opinion, Justice O’Connor pointed out that the Texas law, since it applied only to homosexuals and not to heterosexuals, could have been struck down for denying to people the equal protection of the laws. Writing in the New Republic, Jeffrey Rosen endorsed her view, and I join him. This would have left the states free to ban sodomy for heterosexuals and homosexuals equally—something that the vast majority of states would, of course, be most reluctant to do—or otherwise use their police powers with respect to many matters of supposedly private conduct, provided only that they did not infringe an explicit provision of the Constitution.
Justice Scalia, in his dissent, rejected not only the majority opinion but O’Connor’s point. Apparently he thinks that the use of the equal-protection clause would open the door to homosexual marriages: if a law tried to prevent such marriages, the Court might later say that the law denied equal protection to gays and lesbians. O’Connor’s (and my) response to Scalia would be this: a law designed to maintain the traditional and near-universal concept of heterosexual marriage, with all that this implies about the complementary relation between the two sexes and the prospect of effective child-rearing, provides a rational basis for making a distinction between heterosexuals and homosexuals with respect to how they live together. And if there is a rational basis for distinguishing between two kinds of activities, then a law making that distinction is not vulnerable to an equal-protection argument.
Scalia was right, however, to observe that a majority of the Court had in this case joined the culture war, “departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed.” What now remains is to discover whether, given the Court’s position on some matters, a democratic engagement is even possible.
I have no wish to punish gays and lesbians; it makes great sense to abolish laws that hinder their private conduct. But surely this could have been accomplished on more economical grounds, ones that would not have opened the door to broader appeals asserting that anything that seems private must be legitimate. This argument, redolent of what Christopher Jencks has called a laissez-fair culture, is eating at what ties Americans together—eating, that is, at our view that we can reconcile individual liberty and social mores in ways that keep the country great.
Even when the right of privacy was being invented by the Supreme Court, it reserved special consideration for heterosexual marriage. The case that authorized the sale of contraceptive materials (Griswold v. Connecticut, decided in 1965) was about marital privacy, not human privacy. Even after the next case, Eisenstadt v. Baird (1972), broadened access to contraceptives for unmarried persons, the Court held that the state could still treat extramarital sex and nonmarital sex as evils. After Lawrence, all of those genuflections toward marriage have become moot.
The implication of the Lawrence case is that we have to find ways of defending heterosexual marriage against the claim, sure to arise, that anybody, under any circumstances, can be “married,” provided only that this is the act of mature, consenting adults. One can make a decent, though to me ultimately unpersuasive, case for homosexual marriages. But one cannot, I think, make that case so effectively as to require it to be imposed by judicial order.
We imposed abortion by judicial order, and at a time when some states, like New York, had already legalized it. What we got was endless acrimony, because the judicial order was not the result of balancing competing political interests or adapting laws to the needs and preferences of different states. European nations allowed abortion, but because this was done by parliaments rather than by courts, the laws that were put in place called for various forms of medical consent and parental approval and in some cases imposed strict time limits.
We may commit the same kind of judicial suicide if the Court chooses (as, given the Lawrence case, it logically must choose) in favor of homosexual marriages. Endless public debate will be stirred up even though the number of gay or lesbian marriages is likely to be rather small. (In the Netherlands, which legalized same-sex marriages in 2001, fewer than 10 percent of an estimated 50,000 same-sex couples have chosen marriage. In 2002 there were 1,900 such marriages, compared with 85,500 male-female ones.) When Vermont legalized same-sex unions, Vermonters probably adjusted with rather little fussing. But if the Court says that the Vermont practice—or, worse, one that uses the word “marriage”—must become a national norm, the country will be divided deeply and fight about it for years to come.
The Defense of Marriage Act passed by many states will provide no barrier to a Court decision; such acts will become unconstitutional. So now there will be a fight over a Federal Marriage Amendment to the U.S. Constitution. The odds are very great against its passing; although a majority of the country favors reserving marriage for heterosexual couples, it is not an overwhelming majority. The Court is marching us toward the Netherlands—only there, at least, politicians and not six robed jurists made the decisions.
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Has the Supreme Court Gone Too Far?
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t can be said that the Book of Samuel launched the American Revolution. Though antagonistic to traditional faith, Thomas Paine understood that it was not Montesquieu, or Locke, who was inscribed on the hearts of his fellow Americans. Paine’s pamphlet Common Sense is a biblical argument against British monarchy, drawing largely on the text of Samuel.
Today, of course, universal biblical literacy no longer exists in America, and sophisticated arguments from Scripture are all too rare. It is therefore all the more distressing when public intellectuals, academics, or religious leaders engage in clumsy acts of exegesis and political argumentation by comparing characters in the Book of Samuel to modern political leaders. The most common victim of this tendency has been the central character in the Book of Samuel: King David.
Most recently, this tendency was made manifest in the writings of Dennis Prager. In a recent defense of his own praise of President Trump, Prager wrote that “as a religious Jew, I learned from the Bible that God himself chose morally compromised individuals to accomplish some greater good. Think of King David, who had a man killed in order to cover up the adultery he committed with the man’s wife.” Prager similarly argued that those who refuse to vote for a politician whose positions are correct but whose personal life is immoral “must think God was pretty flawed in voting for King David.”
Prager’s invocation of King David was presaged on the left two decades ago. The records of the Clinton Presidential Library reveal that at the height of the Lewinsky scandal, an email from Dartmouth professor Susannah Heschel made its way into the inbox of an administration policy adviser with a similar comparison: “From the perspective of Jewish history, we have to ask how Jews can condemn President Clinton’s behavior as immoral, when we exalt King David? King David had Batsheva’s husband, Uriah, murdered. While David was condemned and punished, he was never thrown off the throne of Israel. On the contrary, he is exalted in our Jewish memory as the unifier of Israel.”
One can make the case for supporting politicians who have significant moral flaws. Indeed, America’s political system is founded on an awareness of the profound tendency to sinfulness not only of its citizens but also of its statesmen. “If men were angels, no government would be necessary,” James Madison informs us in the Federalist. At the same time, anyone who compares King David to the flawed leaders of our own age reveals a profound misunderstanding of the essential nature of David’s greatness. David was not chosen by God despite his moral failings; rather, David’s failings are the lens that reveal his true greatness. It is in the wake of his sins that David emerges as the paradigmatic penitent, whose quest for atonement is utterly unlike that of any other character in the Bible, and perhaps in the history of the world.
While the precise nature of David’s sins is debated in the Talmud, there is no question that they are profound. Yet it is in comparing David to other faltering figures—in the Bible or today—that the comparison falls flat. This point is stressed by the very Jewish tradition in whose name Prager claimed to speak.
It is the rabbis who note that David’s predecessor, Saul, lost the kingship when he failed to fulfill God’s command to destroy the egregiously evil nation of Amalek, whereas David commits more severe sins and yet remains king. The answer, the rabbis suggest, lies not in the sin itself but in the response. Saul, when confronted by the prophet Samuel, offers obfuscations and defensiveness. David, meanwhile, is similarly confronted by the prophet Nathan: “Thou hast killed Uriah the Hittite with the sword, and hast taken his wife to be thy wife, and hast slain him with the sword of the children of Ammon.” David’s immediate response is clear and complete contrition: “I have sinned against the Lord.” David’s penitence, Jewish tradition suggests, sets him apart from Saul. Soon after, David gave voice to what was in his heart at the moment, and gave the world one of the most stirring of the Psalms:
Have mercy upon me, O God, according to thy lovingkindness: according unto the multitude of thy tender mercies blot out my transgressions.
Wash me thoroughly from mine iniquity, and cleanse me from my sin. For I acknowledge my transgressions: and my sin is ever before me.
. . . Deliver me from bloodguiltiness, O God, thou God of my salvation: and my tongue shall sing aloud of thy righteousness.
O Lord, open thou my lips; and my mouth shall shew forth thy praise.
For thou desirest not sacrifice; else would I give it: thou delightest not in burnt offering.
The sacrifices of God are a broken spirit: a broken and a contrite heart, O God, thou wilt not despise.
The tendency to link David to our current age lies in the fact that we know more about David than any other biblical figure. The author Thomas Cahill has noted that in a certain literary sense, David is the only biblical figure that is like us at all. Prior to the humanist autobiographies of the Renaissance, he notes, “we can count only a few isolated instances of this use of ‘I’ to mean the interior self. But David’s psalms are full of I’s.” In David’s Psalms, Cahill writes, we “find a unique early roadmap to the inner spirit—previously mute—of ancient humanity.”
At the same time, a study of the Book of Samuel and of the Psalms reveals how utterly incomparable David is to anyone alive today. Haym Soloveitchik has noted that even the most observant of Jews today fail to feel a constant intimacy with God that the simplest Jew of the premodern age might have felt, that “while there are always those whose spirituality is one apart from that of their time, nevertheless I think it safe to say that the perception of God as a daily, natural force is no longer present to a significant degree in any sector of modern Jewry, even the most religious.” Yet for David, such intimacy with the divine was central to his existence, and the Book of Samuel and the Psalms are an eternal testament to this fact. This is why simple comparisons between David and ourselves, as tempting as they are, must be resisted. David Wolpe, in his book about David, attempts to make the case as to why King David’s life speaks to us today: “So versatile and enduring is David in our culture that rare is the week that passes without some public allusion to his life…We need to understand David better because we use his life to comprehend our own.”
The truth may be the opposite. We need to understand David better because we can use his life to comprehend what we are missing, and how utterly unlike our lives are to his own. For even the most religious among us have lost the profound faith and intimacy with God that David had. It is therefore incorrect to assume that because of David’s flaws it would have been, as Amos Oz has written, “fitting for him to reign in Tel Aviv.” The modern State of Israel was blessed with brilliant leaders, but to which of its modern warriors or statesmen should David be compared? To Ben Gurion, who stripped any explicit invocation of the Divine from Israel’s Declaration of Independence? To Moshe Dayan, who oversaw the reconquest of Jerusalem, and then immediately handed back the Temple Mount, the locus of King David’s dreams and desires, to the administration of the enemies of Israel? David’s complex humanity inspires comparison to modern figures, but his faith, contrition, and repentance—which lie at the heart of his story and success—defy any such engagement.
And so, to those who seek comparisons to modern leaders from the Bible, the best rule may be: Leave King David out of it.
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Three attacks in Britain highlight the West’s inability to see the threat clearly
This lack of seriousness manifests itself in several ways. It’s perhaps most obvious in the failure to reform Britain’s chaotic immigration and dysfunctional asylum systems. But it’s also abundantly clear from the grotesque underfunding and under-resourcing of domestic intelligence. In MI5, Britain has an internal security service that is simply too small to do its job effectively, even if it were not handicapped by an institutional culture that can seem willfully blind to the ideological roots of the current terrorism problem.
In 2009, Jonathan Evans, then head of MI5, confessed at a parliamentary hearing about the London bus and subway attacks of 2005 that his organization only had sufficient resources to “hit the crocodiles close to the boat.” It was an extraordinary metaphor to use, not least because of the impression of relative impotence that it conveys. MI5 had by then doubled in size since 2001, but it still boasted a staff of only 3,500. Today it’s said to employ between 4,000 and 5,000, an astonishingly, even laughably, small number given a UK population of 65 million and the scale of the security challenges Britain now faces. (To be fair, the major British police forces all have intelligence units devoted to terrorism, and the UK government’s overall counterterrorism strategy involves a great many people, including social workers and schoolteachers.)
You can also see that unseriousness at work in the abject failure to coerce Britain’s often remarkably sedentary police officers out of their cars and stations and back onto the streets. Most of Britain’s big-city police forces have adopted a reactive model of policing (consciously rejecting both the New York Compstat model and British “bobby on the beat” traditions) that cripples intelligence-gathering and frustrates good community relations.
If that weren’t bad enough, Britain’s judiciary is led by jurists who came of age in the 1960s, and who have been inclined since 2001 to treat terrorism as an ordinary criminal problem being exploited by malign officials and politicians to make assaults on individual rights and to take part in “illegal” foreign wars. It has long been almost impossible to extradite ISIS or al-Qaeda–linked Islamists from the UK. This is partly because today’s English judges believe that few if any foreign countries—apart from perhaps Sweden and Norway—are likely to give terrorist suspects a fair trial, or able to guarantee that such suspects will be spared torture and abuse.
We have a progressive metropolitan media elite whose primary, reflexive response to every terrorist attack, even before the blood on the pavement is dry, is to express worry about an imminent violent anti-Muslim “backlash” on the part of a presumptively bigoted and ignorant indigenous working class. Never mind that no such “backlash” has yet occurred, not even when the young off-duty soldier Lee Rigby was hacked to death in broad daylight on a South London street in 2013.
Another sign of this lack of seriousness is the choice by successive British governments to deal with the problem of internal terrorism with marketing and “branding.” You can see this in the catchy consultant-created acronyms and pseudo-strategies that are deployed in place of considered thought and action. After every atrocity, the prime minister calls a meeting of the COBRA unit—an acronym that merely stands for Cabinet Office Briefing Room A but sounds like a secret organization of government superheroes. The government’s counterterrorism strategy is called CONTEST, which has four “work streams”: “Prevent,” “Pursue,” “Protect,” and “Prepare.”
Perhaps the ultimate sign of unseriousness is the fact that police, politicians, and government officials have all displayed more fear of being seen as “Islamophobic” than of any carnage that actual terror attacks might cause. Few are aware that this short-term, cowardly, and trivial tendency may ultimately foment genuine, dangerous popular Islamophobia, especially if attacks continue.R
ecently, three murderous Islamist terror attacks in the UK took place in less than a month. The first and third were relatively primitive improvised attacks using vehicles and/or knives. The second was a suicide bombing that probably required relatively sophisticated planning, technological know-how, and the assistance of a terrorist infrastructure. As they were the first such attacks in the UK, the vehicle and knife killings came as a particular shock to the British press, public, and political class, despite the fact that non-explosive and non-firearm terror attacks have become common in Europe and are almost routine in Israel.
The success of all three plots indicates troubling problems in British law-enforcement practice and culture, quite apart from any other failings on the parts of the state in charge of intelligence, border control, and the prevention of radicalization. At the time of writing, the British media have been full of encomia to police courage and skill, not least because it took “only” eight minutes for an armed Metropolitan Police team to respond to and confront the bloody mayhem being wrought by the three Islamist terrorists (who had ploughed their rented van into people on London Bridge before jumping out to attack passersby with knives). But the difficult truth is that all three attacks would be much harder to pull off in Manhattan, not just because all NYPD cops are armed, but also because there are always police officers visibly on patrol at the New York equivalents of London’s Borough Market on a Saturday night. By contrast, London’s Metropolitan police is a largely vehicle-borne, reactive force; rather than use a physical presence to deter crime and terrorism, it chooses to monitor closed-circuit street cameras and social-media postings.
Since the attacks in London and Manchester, we have learned that several of the perpetrators were “known” to the police and security agencies that are tasked with monitoring potential terror threats. That these individuals were nevertheless able to carry out their atrocities is evidence that the monitoring regime is insufficient.
It also seems clear that there were failures on the part of those institutions that come under the leadership of the Home Office and are supposed to be in charge of the UK’s border, migration, and asylum systems. Journalists and think tanks like Policy Exchange and Migration Watch have for years pointed out that these systems are “unfit for purpose,” but successive governments have done little to take responsible control of Britain’s borders. When she was home secretary, Prime Minister Theresa May did little more than jazz up the name, logo, and uniforms of what is now called the “Border Force,” and she notably failed to put in place long-promised passport checks for people flying out of the country. This dereliction means that it is impossible for the British authorities to know who has overstayed a visa or whether individuals who have been denied asylum have actually left the country.
It seems astonishing that Youssef Zaghba, one of the three London Bridge attackers, was allowed back into the country. The Moroccan-born Italian citizen (his mother is Italian) had been arrested by Italian police in Bologna, apparently on his way to Syria via Istanbul to join ISIS. When questioned by the Italians about the ISIS decapitation videos on his mobile phone, he declared that he was “going to be a terrorist.” The Italians lacked sufficient evidence to charge him with a crime but put him under 24-hour surveillance, and when he traveled to London, they passed on information about him to MI5. Nevertheless, he was not stopped or questioned on arrival and had not become one of the 3,000 official terrorism “subjects of interest” for MI5 or the police when he carried out his attack. One reason Zaghba was not questioned on arrival may have been that he used one of the new self-service passport machines installed in UK airports in place of human staff after May’s cuts to the border force. Apparently, the machines are not yet linked to any government watch lists, thanks to the general chaos and ineptitude of the Home Office’s efforts to use information technology.
The presence in the country of Zaghba’s accomplice Rachid Redouane is also an indictment of the incompetence and disorganization of the UK’s border and migration authorities. He had been refused asylum in 2009, but as is so often the case, Britain’s Home Office never got around to removing him. Three years later, he married a British woman and was therefore able to stay in the UK.
But it is the failure of the authorities to monitor ringleader Khuram Butt that is the most baffling. He was a known and open associate of Anjem Choudary, Britain’s most notorious terrorist supporter, ideologue, and recruiter (he was finally imprisoned in 2016 after 15 years of campaigning on behalf of al-Qaeda and ISIS). Butt even appeared in a 2016 TV documentary about ISIS supporters called The Jihadist Next Door. In the same year, he assaulted a moderate imam at a public festival, after calling him a “murtad” or apostate. The imam reported the incident to the police—who took six months to track him down and then let him off with a caution. It is not clear if Butt was one of the 3,000 “subjects of interest” or the additional 20,000 former subjects of interest who continue to be the subject of limited monitoring. If he was not, it raises the question of what a person has to do to get British security services to take him seriously as a terrorist threat; if he was in fact on the list of “subjects of interest,” one has to wonder if being so designated is any barrier at all to carrying out terrorist atrocities. It’s worth remembering, as few do here in the UK, that terrorists who carried out previous attacks were also known to the police and security services and nevertheless enjoyed sufficient liberty to go at it again.B
ut the most important reason for the British state’s ineffectiveness in monitoring terror threats, which May addressed immediately after the London Bridge attack, is a deeply rooted institutional refusal to deal with or accept the key role played by Islamist ideology. For more than 15 years, the security services and police have chosen to take note only of people and bodies that explicitly espouse terrorist violence or have contacts with known terrorist groups. The fact that a person, school, imam, or mosque endorses the establishment of a caliphate, the stoning of adulterers, or the murder of apostates has not been considered a reason to monitor them.
This seems to be why Salman Abedi, the Manchester Arena suicide bomber, was not being watched by the authorities as a terror risk, even though he had punched a girl in the face for wearing a short skirt while at university, had attended the Muslim Brotherhood-controlled Didsbury Mosque, was the son of a Libyan man whose militia is banned in the UK, had himself fought against the Qaddafi regime in Libya, had adopted the Islamist clothing style (trousers worn above the ankle, beard but no moustache), was part of a druggy gang subculture that often feeds individuals into Islamist terrorism, and had been banned from a mosque after confronting an imam who had criticized ISIS.
It was telling that the day after the Manchester Arena suicide-bomb attack, you could hear security officials informing radio and TV audiences of the BBC’s flagship morning-radio news show that it’s almost impossible to predict and stop such attacks because the perpetrators “don’t care who they kill.” They just want to kill as many people as possible, he said.
Surely, anyone with even a basic familiarity with Islamist terror attacks over the last 15 or so years and a nodding acquaintance with Islamist ideology could see that the terrorist hadn’t just chosen the Ariana Grande concert in Manchester Arena because a lot of random people would be crowded into a conveniently small area. Since the Bali bombings of 2002, nightclubs, discotheques, and pop concerts attended by shameless unveiled women and girls have been routinely targeted by fundamentalist terrorists, including in Britain. Among the worrying things about the opinion offered on the radio show was that it suggests that even in the wake of the horrific Bataclan attack in Paris during a November 2015 concert, British authorities may not have been keeping an appropriately protective eye on music venues and other places where our young people hang out in their decadent Western way. Such dereliction would make perfect sense given the resistance on the part of the British security establishment to examining, confronting, or extrapolating from Islamist ideology.
The same phenomenon may explain why authorities did not follow up on community complaints about Abedi. All too often when people living in Britain’s many and diverse Muslim communities want to report suspicious behavior, they have to do so through offices and organizations set up and paid for by the authorities as part of the overall “Prevent” strategy. Although criticized by the left as “Islamophobic” and inherently stigmatizing, Prevent has often brought the government into cooperative relationships with organizations even further to the Islamic right than the Muslim Brotherhood. This means that if you are a relatively secular Libyan émigré who wants to report an Abedi and you go to your local police station, you are likely to find yourself speaking to a bearded Islamist.
From its outset in 2003, the Prevent strategy was flawed. Its practitioners, in their zeal to find and fund key allies in “the Muslim community” (as if there were just one), routinely made alliances with self-appointed community leaders who represented the most extreme and intolerant tendencies in British Islam. Both the Home Office and MI5 seemed to believe that only radical Muslims were “authentic” and would therefore be able to influence young potential terrorists. Moderate, modern, liberal Muslims who are arguably more representative of British Islam as a whole (not to mention sundry Shiites, Sufis, Ahmmadis, and Ismailis) have too often found it hard to get a hearing.
Sunni organizations that openly supported suicide-bomb attacks in Israel and India and that justified attacks on British troops in Iraq and Afghanistan nevertheless received government subsidies as part of Prevent. The hope was that in return, they would alert the authorities if they knew of individuals planning attacks in the UK itself.
It was a gamble reminiscent of British colonial practice in India’s northwest frontier and elsewhere. Not only were there financial inducements in return for grudging cooperation; the British state offered other, symbolically powerful concessions. These included turning a blind eye to certain crimes and antisocial practices such as female genital mutilation (there have been no successful prosecutions relating to the practice, though thousands of cases are reported every year), forced marriage, child marriage, polygamy, the mass removal of girls from school soon after they reach puberty, and the epidemic of racially and religiously motivated “grooming” rapes in cities like Rotherham. (At the same time, foreign jihadists—including men wanted for crimes in Algeria and France—were allowed to remain in the UK as long as their plots did not include British targets.)
This approach, simultaneously cynical and naive, was never as successful as its proponents hoped. Again and again, Muslim chaplains who were approved to work in prisons and other institutions have sometimes turned out to be Islamist extremists whose words have inspired inmates to join terrorist organizations.
Much to his credit, former Prime Minister David Cameron fought hard to change this approach, even though it meant difficult confrontations with his home secretary (Theresa May), as well as police and the intelligence agencies. However, Cameron’s efforts had little effect on the permanent personnel carrying out the Prevent strategy, and cooperation with Islamist but currently nonviolent organizations remains the default setting within the institutions on which the United Kingdom depends for security.
The failure to understand the role of ideology is one of imagination as well as education. Very few of those who make government policy or write about home-grown terrorism seem able to escape the limitations of what used to be called “bourgeois” experience. They assume that anyone willing to become an Islamist terrorist must perforce be materially deprived, or traumatized by the experience of prejudice, or provoked to murderous fury by oppression abroad. They have no sense of the emotional and psychic benefits of joining a secret terror outfit: the excitement and glamor of becoming a kind of Islamic James Bond, bravely defying the forces of an entire modern state. They don’t get how satisfying or empowering the vengeful misogyny of ISIS-style fundamentalism might seem for geeky, frustrated young men. Nor can they appreciate the appeal to the adolescent mind of apocalyptic fantasies of power and sacrifice (mainstream British society does not have much room for warrior dreams, given that its tone is set by liberal pacifists). Finally, they have no sense of why the discipline and self-discipline of fundamentalist Islam might appeal so strongly to incarcerated lumpen youth who have never experienced boundaries or real belonging. Their understanding is an understanding only of themselves, not of the people who want to kill them.
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Review of 'White Working Class' By Joan C. Williams
Williams is a prominent feminist legal scholar with degrees from Yale, MIT, and Harvard. Unbending Gender, her best-known book, is the sort of tract you’d expect to find at an intersectionality conference or a Portlandia bookstore. This is why her insightful, empathic book comes as such a surprise.
Books and essays on the topic have accumulated into a highly visible genre since Donald Trump came on the American political scene; J.D. Vance’s Hillbilly Elegy planted itself at the top of bestseller lists almost a year ago and still isn’t budging. As with Vance, Williams’s interest in the topic is personal. She fell “madly in love with” and eventually married a Harvard Law School graduate who had grown up in an Italian neighborhood in pre-gentrification Brook-lyn. Williams, on the other hand, is a “silver-spoon girl.” Her father’s family was moneyed, and her maternal grandfather was a prominent Reform rabbi.
The author’s affection for her “class-migrant” spouse and respect for his family’s hardships—“My father-in-law grew up on blood soup,” she announces in her opening sentence—adds considerable warmth to what is at bottom a political pamphlet. Williams believes that elite condescension and “cluelessness” played a big role in Trump’s unexpected and dreaded victory. Enlightening her fellow elites is essential to the task of returning Trump voters to the progressive fold where, she is sure, they rightfully belong.
Liberals were not always so dense about the working class, Williams observes. WPA murals and movies like On the Waterfront showed genuine fellow feeling for the proletariat. In the 1970s, however, the liberal mood changed. Educated boomers shifted their attention to “issues of peace, equal rights, and environmentalism.” Instead of feeling the pain of Arthur Miller and John Steinbeck characters, they began sneering at the less enlightened. These days, she notes, elite sympathies are limited to the poor, people of color (POC), and the LGBTQ population. Despite clear evidence of suffering—stagnant wages, disappearing manufacturing jobs, declining health and well-being—the working class gets only fly-over snobbery at best and, more often, outright loathing.
Williams divides her chapters into a series of explainers to questions she has heard from her clueless friends and colleagues: “Why Does the Working Class Resent the Poor?” “Why Does the Working Class Resent Professionals but Admire the Rich?” “Why Doesn’t the Working Class Just Move to Where the Jobs Are?” “Is the Working Class Just Racist?” She weaves her answers into a compelling picture of a way of life and worldview foreign to her targeted readers. Working-class Americans have had to struggle for whatever stability and comfort they have, she explains. Clocking in for midnight shifts year after year, enduring capricious bosses, plant closures, and layoffs, they’re reliant on tag-team parenting and stressed-out relatives for child care. The campus go-to word “privileged” seems exactly wrong.
Proud of their own self-sufficiency and success, however modest, they don’t begrudge the self-made rich. It’s snooty professionals and the dysfunctional poor who get their goat. From their vantage point, subsidizing the day care for a welfare mother when they themselves struggle to manage care on their own dime mocks both their hard work and their beliefs. And since, unlike most professors, they shop in the same stores as the dependent poor, they’ve seen that some of them game the system. Of course that stings.
White Working Class is especially good at evoking the alternate economic and mental universe experienced by Professional and Managerial Elites, or “PMEs.” PMEs see their non-judgment of the poor, especially those who are “POC,” as a mark of their mature understanding that we live in an unjust, racist system whose victims require compassion regardless of whether they have committed any crime. At any rate, their passions lie elsewhere. They define themselves through their jobs and professional achievements, hence their obsession with glass ceilings.
Williams tells the story of her husband’s faux pas at a high-school reunion. Forgetting his roots for a moment, the Ivy League–educated lawyer asked one of his Brooklyn classmates a question that is the go-to opener in elite social settings: “What do you do?” Angered by what must have seemed like deliberate humiliation by this prodigal son, the man hissed: “I sell toilets.”
Instead of stability and backyard barbecues with family and long-time neighbors and maybe the occasional Olive Garden celebration, PMEs are enamored of novelty: new foods, new restaurants, new friends, new experiences. The working class chooses to spend its leisure in comfortable familiarity; for the elite, social life is a lot like networking. Members of the professional class may view themselves as sophisticated or cosmopolitan, but, Williams shows, to the blue-collar worker their glad-handing is closer to phony social climbing and their abstract, knowledge-economy jobs more like self-important pencil-pushing.
White Working Class has a number of proposals for creating the progressive future Williams would like to see. She wants to get rid of college-for-all dogma and improve training for middle-skill jobs. She envisions a working-class coalition of all races and ethnicities bolstered by civics education with a “distinctly celebratory view of American institutions.” In a saner political environment, some of this would make sense; indeed, she echoes some of Marco Rubio’s 2016 campaign themes. It’s little wonder White Working Class has already gotten the stink eye from liberal reviewers for its purported sympathies for racists.
Alas, impressive as Williams’s insights are, they do not always allow her to transcend her own class loyalties. Unsurprisingly, her own PME biases mostly come to light in her chapters on race and gender. She reduces immigration concerns to “fear of brown people,” even as she notes elsewhere that a quarter of Latinos also favor a wall at the southern border. This contrasts startlingly with her succinct observation that “if you don’t want to drive working-class whites to be attracted to the likes of Limbaugh, stop insulting them.” In one particularly obtuse moment, she asserts: “Because I study social inequality, I know that even Malia and Sasha Obama will be disadvantaged by race, advantaged as they are by class.” She relies on dubious gender theories to explain why the majority of white women voted for Trump rather than for his unfairly maligned opponent. That Hillary Clinton epitomized every elite quality Williams has just spent more than a hundred pages explicating escapes her notice. Williams’s own reflexive retreat into identity politics is itself emblematic of our toxic divisions, but it does not invalidate the power of this astute book.
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When music could not transcend evil
he story of European classical music under the Third Reich is one of the most squalid chapters in the annals of Western culture, a chronicle of collective complaisance that all but beggars belief. Without exception, all of the well-known musicians who left Germany and Austria in protest when Hitler came to power in 1933 were either Jewish or, like the violinist Adolf Busch, Rudolf Serkin’s father-in-law, had close family ties to Jews. Moreover, most of the small number of non-Jewish musicians who emigrated later on, such as Paul Hindemith and Lotte Lehmann, are now known to have done so not out of principle but because they were unable to make satisfactory accommodations with the Nazis. Everyone else—including Karl Böhm, Wilhelm Furtwängler, Walter Gieseking, Herbert von Karajan, and Richard Strauss—stayed behind and served the Reich.
The Berlin and Vienna Philharmonics, then as now Europe’s two greatest orchestras, were just as willing to do business with Hitler and his henchmen, firing their Jewish members and ceasing to perform the music of Jewish composers. Even after the war, the Vienna Philharmonic was notorious for being the most anti-Semitic orchestra in Europe, and it was well known in the music business (though never publicly discussed) that Helmut Wobisch, the orchestra’s principal trumpeter and its executive director from 1953 to 1968, had been both a member of the SS and a Gestapo spy.
The management of the Berlin Philharmonic made no attempt to cover up the orchestra’s close relationship with the Third Reich, no doubt because the Nazi ties of Karajan, who was its music director from 1956 until shortly before his death in 1989, were a matter of public record. Yet it was not until 2007 that a full-length study of its wartime activities, Misha Aster’s The Reich’s Orchestra: The Berlin Philharmonic 1933–1945, was finally published. As for the Vienna Philharmonic, its managers long sought to quash all discussion of the orchestra’s Nazi past, steadfastly refusing to open its institutional archives to scholars until 2008, when Fritz Trümpi, an Austrian scholar, was given access to its records. Five years later, the Viennese, belatedly following the precedent of the Berlin Philharmonic, added a lengthy section to their website called “The Vienna Philharmonic Under National Socialism (1938–1945),” in which the damning findings of Trümpi and two other independent scholars were made available to the public.
Now Trümpi has published The Political Orchestra: The Vienna and Berlin Philharmonics During the Third Reich, in which he tells how they came to terms with Nazism, supplying pre- and postwar historical context for their transgressions.1 Written in a stiff mixture of academic jargon and translatorese, The Political Orchestra is ungratifying to read. Even so, the tale that it tells is both compelling and disturbing, especially to anyone who clings to the belief that high art is ennobling to the spirit.U
nlike the Vienna Philharmonic, which has always doubled as the pit orchestra for the Vienna State Opera, the Berlin Philharmonic started life in 1882 as a fully independent, self-governing entity. Initially unsubsidized by the state, it kept itself afloat by playing a grueling schedule of performances, including “popular” non-subscription concerts for which modest ticket prices were levied. In addition, the orchestra made records and toured internationally at a time when neither was common.
These activities made it possible for the Berlin Philharmonic to develop into an internationally renowned ensemble whose fabled collective virtuosity was widely seen as a symbol of German musical distinction. Furtwängler, the orchestra’s principal conductor, declared in 1932 that the German music in which it specialized was “one of the very few things that actually contribute to elevating [German] prestige.” Hence, he explained, the need for state subsidy, which he saw as “a matter of [national] prestige, that is, to some extent a requirement of national prudence.” By then, though, the orchestra was already heavily subsidized by the city of Berlin, thus paving the way for its takeover by the Nazis.
The Vienna Philharmonic, by contrast, had always been subsidized. Founded in 1842 when the orchestra of what was then the Vienna Court Opera decided to give symphonic concerts on its own, it performed the Austro-German classics for an elite cadre of longtime subscribers. By restricting membership to local players and their pupils, the orchestra cultivated what Furtwängler, who spent as much time conducting in Vienna as in Berlin, described as a “homogeneous and distinct tone quality.” At once dark and sweet, it was as instantly identifiable—and as characteristically Viennese—as the strong, spicy bouquet of a Gewürztraminer wine.
Unlike the Berlin Philharmonic, which played for whoever would pay the tab and programmed new music as a matter of policy, the Vienna Philharmonic chose not to diversify either its haute-bourgeois audience or its conservative repertoire. Instead, it played Beethoven, Brahms, Haydn, Mozart, and Schubert (and, later, Bruckner and Richard Strauss) in Vienna for the Viennese. Starting in the ’20s, the orchestra’s recordings consolidated its reputation as one of the world’s foremost instrumental ensembles, but its internal culture remained proudly insular.
What the two orchestras had in common was a nationalistic ethos, a belief in the superiority of Austro-German musical culture that approached triumphalism. One of the darkest manifestations of this ethos was their shared reluctance to hire Jews. The Berlin Philharmonic employed only four Jewish players in 1933, while the Vienna Philharmonic contained only 11 Jews at the time of the Anschluss, none of whom was hired after 1920. To be sure, such popular Jewish conductors as Otto Klemperer and Bruno Walter continued to work in Vienna for as long as they could. Two months before the Anschluss, Walter led and recorded a performance of the Ninth Symphony of Gustav Mahler, his musical mentor and fellow Jew, who from 1897 to 1907 had been the director of the Vienna Court Opera and one of the Philharmonic’s most admired conductors. But many members of both orchestras were open supporters of fascism, and not a few were anti-Semites who ardently backed Hitler. By 1942, 62 of the 123 active members of the Vienna Philharmonic were Nazi party members.
The admiration that Austro-German classical musicians had for Hitler is not entirely surprising since he was a well-informed music lover who declared in 1938 that “Germany has become the guardian of European culture and civilization.” He made the support of German art, music very much included, a key part of his political program. Accordingly, the Berlin Philharmonic was placed under the direct supervision of Joseph Goebbels, who ensured the cooperation of its members by repeatedly raising their salaries, exempting them from military service, and guaranteeing their old-age pensions. But there had never been any serious question of protest, any more than there would be among the members of the Vienna Philharmonic when the Nazis gobbled up Austria. Save for the Jews and one or two non-Jewish players who were fired for reasons of internal politics, the musicians went along unhesitatingly with Hitler’s desires.
With what did they go along? Above all, they agreed to the scrubbing of Jewish music from their programs and the dismissal of their Jewish colleagues. Some Jewish players managed to escape with their lives, but seven of the Vienna Philharmonic’s 11 Jews were either murdered by the Nazis or died as a direct result of official persecution. In addition, both orchestras performed regularly at official government functions and made tours and other public appearances for propaganda purposes, and both were treated as gems in the diadem of Nazi culture.
As for Furtwängler, the most prominent of the Austro-German orchestral conductors who served the Reich, his relationship to Nazism continues to be debated to this day. He had initially resisted the firing of the Berlin Philharmonic’s Jewish members and protected them for as long as he could. But he was also a committed (if woolly-minded) nationalist who believed that German music had “a different meaning for us Germans than for other nations” and notoriously declared in an open letter to Goebbels that “we all welcome with great joy and gratitude . . . the restoration of our national honor.” Thereafter he cooperated with the Nazis, by all accounts uncomfortably but—it must be said—willingly. A monster of egotism, he saw himself as the greatest living exponent of German music and believed it to be his duty to stay behind and serve a cause higher than what he took to be mere party politics. “Human beings are free wherever Wagner and Beethoven are played, and if they are not free at first, they are freed while listening to these works,” he naively assured a horrified Arturo Toscanini in 1937. “Music transports them to regions where the Gestapo can do them no harm.”O
nce the war was over, the U.S. occupation forces decided to enlist the Berlin Philharmonic in the service of a democratic, anti-Soviet Germany. Furtwängler and Herbert von Karajan, who succeeded him as principal conductor, were officially “de-Nazified” and their orchestra allowed to function largely undisturbed, though six Nazi Party members were fired. The Vienna Philharmonic received similarly privileged treatment.
Needless to say, there was more to this decision than Cold War politics. No one questioned the unique artistic stature of either orchestra. Moreover, the Vienna Philharmonic, precisely because of its insularity, was now seen as a living museum piece, a priceless repository of 19th-century musical tradition. Still, many musicians and listeners, Jews above all, looked askance at both orchestras for years to come, believing them to be tainted by Nazism.
Indeed they were, so much so that they treated many of their surviving Jewish ex-members in a way that can only be described as vicious. In the most blatant individual case, the violinist Szymon Goldberg, who had served as the Berlin Philharmonic’s concertmaster under Furtwängler, was not allowed to reassume his post in 1945 and was subsequently denied a pension. As for the Vienna Philharmonic, the fact that it made Helmut Wobisch its executive director says everything about its deep-seated unwillingness to face up to its collective sins.
Be that as it may, scarcely any prominent musicians chose to boycott either orchestra. Leonard Bernstein went so far as to affect a flippant attitude toward the morally equivocal conduct of the Austro-German artists whom he encountered in Europe after the war. Upon meeting Herbert von Karajan in 1954, he actually told his wife Felicia that he had become “real good friends with von Karajan, whom you would (and will) adore. My first Nazi.”
At the same time, though, Bernstein understood what he was choosing to overlook. When he conducted the Vienna Philharmonic for the first time in 1966, he wrote to his parents:
I am enjoying Vienna enormously—as much as a Jew can. There are so many sad memories here; one deals with so many ex-Nazis (and maybe still Nazis); and you never know if the public that is screaming bravo for you might contain someone who 25 years ago might have shot me dead. But it’s better to forgive, and if possible, forget. The city is so beautiful, and so full of tradition. Everyone here lives for music, especially opera, and I seem to be the new hero.
Did Bernstein sell his soul for the opportunity to work with so justly renowned an orchestra—and did he get his price by insisting that its members perform the symphonies of Mahler, with which he was by then closely identified? It is a fair question, one that does not lend itself to easy answers.
Even more revealing is the case of Bruno Walter, who never forgave Furtwängler for staying behind in Germany, informing him in an angry letter that “your art was used as a conspicuously effective means of propaganda for the regime of the Devil.” Yet Walter’s righteous anger did not stop him from conducting in Vienna after the war. Born in Berlin, he had come to identify with the Philharmonic so closely that it was impossible for him to seriously consider quitting its podium permanently. “Spiritually, I was a Viennese,” he wrote in Theme and Variations, his 1946 autobiography. In 1952, he made a second recording with the Vienna Philharmonic of Mahler’s Das Lied von der Erde, whose premiere he had conducted in 1911 and which he had recorded in Vienna 15 years earlier. One wonders what Walter, who had converted to Christianity but had been driven out of both his native lands for the crime of being Jewish, made of the text of the last movement: “My friend, / On this earth, fortune has not been kind to me! / Where do I go?”
As for the two great orchestras of the Third Reich, both have finally acknowledged their guilt and been forgiven, at least by those who know little of their past. It would occur to no one to decline on principle to perform with either group today. Such a gesture would surely be condemned as morally ostentatious, an exercise in what we now call virtue-signaling. Yet it is impossible to forget what Samuel Lipman wrote in 1993 in Commentary apropos the wartime conduct of Furtwängler: “The ultimate triumph of totalitarianism, I suppose it can be said, is that under its sway only a martyred death can be truly moral.” For the only martyrs of the Berlin and Vienna Philharmonics were their Jews. The orchestras themselves live on, tainted and beloved.
Choose your plan and pay nothing for six Weeks!
He knows what to reveal and what to conceal, understands the importance of keeping the semblance of distance between oneself and the story of the day, and comprehends the ins and outs of anonymous sourcing. Within days of his being fired by President Trump on May 9, for example, little green men and women, known only as his “associates,” began appearing in the pages of the New York Times and Washington Post to dispute key points of the president’s account of his dismissal and to promote Comey’s theory of the case.
“In a Private Dinner, Trump Demanded Loyalty,” the New York Times reported on May 11. “Comey Demurred.” The story was a straightforward narrative of events from Comey’s perspective, capped with an obligatory denial from the White House. The next day, the Washington Post reported, “Comey associates dispute Trump’s account of conversations.” The Post did not identify Comey’s associates, other than saying that they were “people who have worked with him.”
Maybe they were the same associates who had gabbed to the Times. Or maybe they were different ones. Who can tell? Regardless, the story these particular associates gave to the Post was readable and gripping. Comey, the Post reported, “was wary of private meetings and discussions with the president and did not offer the assurance, as Trump has claimed, that Trump was not under investigation as part of the probe into Russian interference in last year’s election.”
On May 16, Michael S. Schmidt of the Times published his scoop, “Comey Memo Says Trump Asked Him to End Flynn Investigation.” Schmidt didn’t see the memo for himself. Parts of it were read to him by—you guessed it—“one of Mr. Comey’s associates.” The following day, Robert Mueller was appointed special counsel to oversee the Russia investigation. On May 18, the Times, citing “two people briefed” on a call between Comey and the president, reported, “Comey, Unsettled by Trump, Is Said to Have Wanted Him Kept at a Distance.” And by the end of that week, Comey had agreed to testify before the Senate Intelligence Committee.
As his testimony approached, Comey’s people became more aggressive in their criticisms of the president. “Trump Should Be Scared, Comey Friend Says,” read the headline of a CNN interview with Brookings Institution fellow Benjamin Wittes. This “Comey friend” said he was “very shocked” when he learned that President Trump had asked Comey for loyalty. “I have no doubt that he regarded the group of people around the president as dishonorable,” Wittes said.
Comey, Wittes added, was so uncomfortable at the White House reception in January honoring law enforcement—the one where Comey lumbered across the room and Trump whispered something in his ear—that, as CNN paraphrased it, he “stood in a position so that his blue blazer would blend in with the room’s blue drapes in an effort for Trump to not notice him.” The integrity, the courage—can you feel it?
On June 6, the day before Comey’s prepared testimony was released, more “associates” told ABC that the director would “not corroborate Trump’s claim that on three separate occasions Comey told the president he was not under investigation.” And a “source with knowledge of Comey’s testimony” told CNN the same thing. In addition, ABC reported that, according to “a source familiar with Comey’s thinking,” the former director would say that Trump’s actions stopped short of obstruction of justice.
Maybe those sources weren’t as “familiar with Comey’s thinking” as they thought or hoped? To maximize the press coverage he already dominated, Comey had authorized the Senate Intelligence Committee to release his testimony ahead of his personal interview. That testimony told a different story than what had been reported by CNN and ABC (and by the Post on May 12). Comey had in fact told Trump the president was not under investigation—on January 6, January 27, and March 30. Moreover, the word “obstruction” did not appear at all in his written text. The senators asked Comey if he felt Trump obstructed justice. He declined to answer either way.
My guess is that Comey’s associates lacked Comey’s scalpel-like, almost Jesuitical ability to make distinctions, and therefore misunderstood what he was telling them to say to the press. Because it’s obvious Comey was the one behind the stories of Trump’s dishonesty and bad behavior. He admitted as much in front of the cameras in a remarkable exchange with Senator Susan Collins of Maine.
Comey said that, after Trump tweeted on May 12 that he’d better hope there aren’t “tapes” of their conversations, “I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.”
Collins asked whether that friend had been Wittes, known to cable news junkies as Comey’s bestie. Comey said no. The source for the New York Times article was “a good friend of mine who’s a professor at Columbia Law School,” Daniel Richman.
Every time I watch or read that exchange, I am amazed. Here is the former director of the FBI just flat-out admitting that, for months, he wrote down every interaction he had with the president of the United States because he wanted a written record in case the president ever fired or lied about him. And when the president did fire and lie about him, that director set in motion a series of public disclosures with the intent of not only embarrassing the president, but also forcing the appointment of a special counsel who might end up investigating the president for who knows what. And none of this would have happened if the president had not fired Comey or tweeted about him. He told the Senate that if Trump hadn’t dismissed him, he most likely would still be on the job.
Rarely, in my view, are high officials so transparent in describing how Washington works. Comey revealed to the world that he was keeping a file on his boss, that he used go-betweens to get his story into the press, that “investigative journalism” is often just powerful people handing documents to reporters to further their careers or agendas or even to get revenge. And as long as you maintain some distance from the fallout, and stick to the absolute letter of the law, you will come out on top, so long as you have a small army of nightingales singing to reporters on your behalf.
“It’s the end of the Comey era,” A.B. Stoddard said on Special Report with Bret Baier the other day. On the contrary: I have a feeling that, as the Russia investigation proceeds, we will be hearing much more from Comey. And from his “associates.” And his “friends.” And persons “familiar with his thinking.”
Choose your plan and pay nothing for six Weeks!
In April, COMMENTARY asked a wide variety of writers,
thinkers, and broadcasters to respond to this question: Is free speech under threat in the United States? We received twenty-seven responses. We publish them here in alphabetical order.
Floyd AbramsFree expression threatened? By Donald Trump? I guess you could say so.
When a president engages in daily denigration of the press, when he characterizes it as the enemy of the people, when he repeatedly says that the libel laws should be “loosened” so he can personally commence more litigation, when he says that journalists shouldn’t be allowed to use confidential sources, it is difficult even to suggest that he has not threatened free speech. And when he says to the head of the FBI (as former FBI director James Comey has said that he did) that Comey should consider “putting reporters in jail for publishing classified information,” it is difficult not to take those threats seriously.
The harder question, though, is this: How real are the threats? Or, as Michael Gerson put it in the Washington Post: Will Trump “go beyond mere Twitter abuse and move against institutions that limit his power?” Some of the president’s threats against the institution of the press, wittingly or not, have been simply preposterous. Surely someone has told him by now that neither he nor Congress can “loosen” libel laws; while each state has its own libel law, there is no federal libel law and thus nothing for him to loosen. What he obviously takes issue with is the impact that the Supreme Court’s 1964 First Amendment opinion in New York Times v. Sullivan has had on state libel laws. The case determined that public officials who sue for libel may not prevail unless they demonstrate that the statements made about them were false and were made with actual knowledge or suspicion of that falsity. So his objection to the rules governing libel law is to nothing less than the application of the First Amendment itself.
In other areas, however, the Trump administration has far more power to imperil free speech. We live under an Espionage Act, adopted a century ago, which is both broad in its language and uncommonly vague in its meaning. As such, it remains a half-open door through which an administration that is hostile to free speech might walk. Such an administration could initiate criminal proceedings against journalists who write about defense- or intelligence-related topics on the basis that classified information was leaked to them by present or former government employees. No such action has ever been commenced against a journalist. Press lawyers and civil-liberties advocates have strong arguments that the law may not be read so broadly and still be consistent with the First Amendment. But the scope of the Espionage Act and the impact of the First Amendment upon its interpretation remain unknown.
A related area in which the attitude of an administration toward the press may affect the latter’s ability to function as a check on government relates to the ability of journalists to protect the identity of their confidential sources. The Obama administration prosecuted more Espionage Act cases against sources of information to journalists than all prior administrations combined. After a good deal of deserved press criticism, it agreed to expand the internal guidelines of the Department of Justice designed to limit the circumstances under which such source revelation is demanded. But the guidelines are none too protective and are, after all, simply guidelines. A new administration is free to change or limit them or, in fact, abandon them altogether. In this area, as in so many others, it is too early to judge the ultimate treatment of free expression by the Trump administration. But the threats are real, and there is good reason to be wary.
Floyd Abrams is the author of The Soul of the First Amendment (Yale University Press, 2017).
Ayaan Hirsi AliFreedom of speech is being threatened in the United States by a nascent culture of hostility to different points of view. As political divisions in America have deepened, a conformist mentality of “right thinking” has spread across the country. Increasingly, American universities, where no intellectual doctrine ought to escape critical scrutiny, are some of the most restrictive domains when it comes to asking open-ended questions on subjects such as Islam.
Legally, speech in the United States is protected to a degree unmatched in almost any industrialized country. The U.S. has avoided unpredictable Canadian-style restrictions on speech, for example. I remain optimistic that as long as we have the First Amendment in the U.S., any attempt at formal legal censorship will be vigorously challenged.
Culturally, however, matters are very different in America. The regressive left is the forerunner threatening free speech on any issue that is important to progressives. The current pressure coming from those who call themselves “social-justice warriors” is unlikely to lead to successful legislation to curb the First Amendment. Instead, censorship is spreading in the cultural realm, particularly at institutions of higher learning.
The way activists of the regressive left achieve silence or censorship is by creating a taboo, and one of the most pernicious taboos in operation today is the word “Islamophobia.” Islamists are similarly motivated to rule any critical scrutiny of Islamic doctrine out of order. There is now a university center (funded by Saudi money) in the U.S. dedicated to monitoring and denouncing incidences of “Islamophobia.”
The term “Islamophobia” is used against critics of political Islam, but also against progressive reformers within Islam. The term implies an irrational fear that is tainted by hatred, and it has had a chilling effect on free speech. In fact, “Islamophobia” is a poorly defined term. Islam is not a race, and it is very often perfectly rational to fear some expressions of Islam. No set of ideas should be beyond critical scrutiny.
To push back in this cultural realm—in our universities, in public discourse—those favoring free speech should focus more on the message of dawa, the set of ideas that the Islamists want to promote. If the aims of dawa are sufficiently exposed, ordinary Americans and Muslim Americans will reject it. The Islamist message is a message of divisiveness, misogyny, and hatred. It’s anachronistic and wants people to live by tribal norms dating from the seventh century. The best antidote to Islamic extremism is the revelation of what its primary objective is: a society governed by Sharia. This is the opposite of censorship: It is documenting reality. What is life like in Saudi Arabia, Iran, the Northern Nigerian States? What is the true nature of Sharia law?
Islamists want to hide the true meaning of Sharia, Jihad, and the implications for women, gays, religious minorities, and infidels under the veil of “Islamophobia.” Islamists use “Islamophobia” to obfuscate their vision and imply that any scrutiny of political Islam is hatred and bigotry. The antidote to this is more exposure and more speech.
As pressure on freedom of speech increases from the regressive left, we must reject the notions that only Muslims can speak about Islam, and that any critical examination of Islamic doctrines is inherently “racist.”
Instead of contorting Western intellectual traditions so as not to offend our Muslim fellow citizens, we need to defend the Muslim dissidents who are risking their lives to promote the human rights we take for granted: equality for women, tolerance of all religions and orientations, our hard-won freedoms of speech and thought.
It is by nurturing and protecting such speech that progressive reforms can emerge within Islam. By accepting the increasingly narrow confines of acceptable discourse on issues such as Islam, we do dissidents and progressive reformers within Islam a grave disservice. For truly progressive reforms within Islam to be possible, full freedom of speech will be required.
Ayaan Hirsi Ali is a research fellow at the Hoover Institution, Stanford University, and the founder of the AHA Foundation.
Lee C. BollingerI know it is too much to expect that political discourse mimic the measured, self-questioning, rational, footnoting standards of the academy, but there is a difference between robust political debate and political debate infected with fear or panic. The latter introduces a state of mind that is visceral and irrational. In the realm of fear, we move beyond the reach of reason and a sense of proportionality. When we fear, we lose the capacity to listen and can become insensitive and mean.
Our Constitution is well aware of this fact about the human mind and of its negative political consequences. In the First Amendment jurisprudence established over the past century, we find many expressions of the problematic state of mind that is produced by fear. Among the most famous and potent is that of Justice Brandeis in Whitney v. California in 1927, one of the many cases involving aggravated fears of subversive threats from abroad. “It is the function of (free) speech,” he said, “to free men from the bondage of irrational fears.” “Men feared witches,” Brandeis continued, “and burned women.”
Today, our “witches” are terrorists, and Brandeis’s metaphorical “women” include the refugees (mostly children) and displaced persons, immigrants, and foreigners whose lives have been thrown into suspension and doubt by policies of exclusion.
The same fears of the foreign that take hold of a population inevitably infect our internal interactions and institutions, yielding suppression of unpopular and dissenting voices, victimization of vulnerable groups, attacks on the media, and the rise of demagoguery, with its disdain for facts, reason, expertise, and tolerance.
All of this poses a very special obligation on those of us within universities. Not only must we make the case in every venue for the values that form the core of who we are and what we do, but we must also live up to our own principles of free inquiry and fearless engagement with all ideas. This is why recent incidents on a handful of college campuses disrupting and effectively censoring speakers is so alarming. Such acts not only betray a basic principle but also inflame a rising prejudice against the academic community, and they feed efforts to delegitimize our work, at the very moment when it’s most needed.
I do not for a second support the view that this generation has an unhealthy aversion to engaging differences of opinion. That is a modern trope of polarization, as is the portrayal of universities as hypocritical about academic freedom and political correctness. But now, in this environment especially, universities must be at the forefront of defending the rights of all students and faculty to listen to controversial voices, to engage disagreeable viewpoints, and to make every effort to demonstrate our commitment to the sort of fearless and spirited debate that we are simultaneously asking of the larger society. Anyone with a voice can shout over a speaker; but being able to listen to and then effectively rebut those with whom we disagree—particularly those who themselves peddle intolerance—is one of the greatest skills our education can bestow. And it is something our democracy desperately needs more of. That is why, I say to you now, if speakers who are being denied access to other campuses come here, I will personally volunteer to introduce them, and listen to them, however much I may disagree with them. But I will also never hesitate to make clear why I disagree with them.
Lee C. Bollinger is the 19th president of Columbia University and the author of Uninhibited, Robust, and Wide-Open: A Free Press for a New Century. This piece has been excerpted from President Bollinger’s May 17 commencement address.
Richard A. Epstein
Today, the greatest threat to the constitutional protection of freedom of speech comes from campus rabble-rousers who invoke this very protection. In their book, the speech of people like Charles Murray and Heather Mac Donald constitutes a form of violence, bordering on genocide, that receives no First Amendment protection. Enlightened protestors are both bound and entitled to shout them down, by force or other disruptive actions, if their universities are so foolish as to extend them an invitation to speak. Any indignant minority may take the law into its own hands to eradicate the intellectual cancer before it spreads on their own campus.
By such tortured logic, a new generation of vigilantes distorts the First Amendment doctrine: Speech becomes violence, and violence becomes heroic acts of self-defense. The standard First Amendment interpretation emphatically rejects that view. Of course, the First Amendment doesn’t let you say what you want when and wherever you want to. Your freedom of speech is subject to the same limitations as your freedom of action. So you have no constitutional license to assault other people, to lie to them, or to form cartels to bilk them in the marketplace. But folks such as Murray, Mac Donald, and even Yiannopoulos do not come close to crossing into that forbidden territory. They are not using, for example, “fighting words,” rightly limited to words or actions calculated to provoke immediate aggression against a known target. Fighting words are worlds apart from speech that provokes a negative reaction in those who find your speech offensive solely because of the content of its message.
This distinction is central to the First Amendment. Fighting words have to be blocked by well-tailored criminal and civil sanctions lest some people gain license to intimidate others from speaking or peaceably assembling. The remedy for mere offense is to speak one’s mind in response. But it never gives anyone the right to block the speech of others, lest everyone be able to unilaterally increase his sphere of action by getting really angry about the beliefs of others. No one has the right to silence others by working himself into a fit of rage.
Obviously, it is intolerable to let mutual animosity generate factional warfare, whereby everyone can use force to silence rivals. To avoid this war of all against all, each side claims that only its actions are privileged. These selective claims quickly degenerate into a form of viewpoint discrimination, which undermines one of the central protections that traditional First Amendment law erects: a wall against each and every group out to destroy the level playing field on which robust political debate rests. Every group should be at risk for having its message fall flat. The new campus radicals want to upend that understanding by shutting down their adversaries if their universities do not. Their aggression must be met, if necessary, by counterforce. Silence in the face of aggression is not an acceptable alternative.
Richard A. Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law.
David FrenchWe’re living in the midst of a troubling paradox. At the exact same time that First Amendment jurisprudence has arguably never been stronger and more protective of free expression, millions of Americans feel they simply can’t speak freely. Indeed, talk to Americans living and working in the deep-blue confines of the academy, Hollywood, and the tech sector, and you’ll get a sense of palpable fear. They’ll explain that they can’t say what they think and keep their jobs, their friends, and sometimes even their families.
The government isn’t cracking down or censoring; instead, Americans are using free speech to destroy free speech. For example, a social-media shaming campaign is an act of free speech. So is an economic boycott. So is turning one’s back on a public speaker. So is a private corporation firing a dissenting employee for purely political reasons. Each of these actions is largely protected from government interference, and each one represents an expression of the speaker’s ideas and values.
The problem, however, is obvious. The goal of each of these kinds of actions isn’t to persuade; it’s to intimidate. The goal isn’t to foster dialogue but to coerce conformity. The result is a marketplace of ideas that has been emptied of all but the approved ideological vendors—at least in those communities that are dominated by online thugs and corporate bullies. Indeed, this mindset has become so prevalent that in places such as Portland, Berkeley, Middlebury, and elsewhere, the bullies and thugs have crossed the line from protected—albeit abusive—speech into outright shout-downs and mob violence.
But there’s something else going on, something that’s insidious in its own way. While politically correct shaming still has great power in deep-blue America, its effect in the rest of the country is to trigger a furious backlash, one characterized less by a desire for dialogue and discourse than by its own rage and scorn. So we’re moving toward two Americas—one that ruthlessly (and occasionally illegally) suppresses dissenting speech and the other that is dangerously close to believing that the opposite of political correctness isn’t a fearless expression of truth but rather the fearless expression of ideas best calculated to enrage your opponents.
The result is a partisan feedback loop where right-wing rage spurs left-wing censorship, which spurs even more right-wing rage. For one side, a true free-speech culture is a threat to feelings, sensitivities, and social justice. The other side waves high the banner of “free speech” to sometimes elevate the worst voices to the highest platforms—not so much to protect the First Amendment as to infuriate the hated “snowflakes” and trigger the most hysterical overreactions.
The culturally sustainable argument for free speech is something else entirely. It reminds the cultural left of its own debt to free speech while reminding the political right that a movement allegedly centered around constitutional values can’t abandon the concept of ordered liberty. The culture of free speech thrives when all sides remember their moral responsibilities—to both protect the right of dissent and to engage in ideological combat with a measure of grace and humility.
David French is a senior writer at National Review.
Pamela GellerThe real question isn’t whether free speech is under threat in the United States, but rather, whether it’s irretrievably lost. Can we get it back? Not without war, I suspect, as is evidenced by the violence at colleges whenever there’s the shamefully rare event of a conservative speaker on campus.
Free speech is the soul of our nation and the foundation of all our other freedoms. If we can’t speak out against injustice and evil, those forces will prevail. Freedom of speech is the foundation of a free society. Without it, a tyrant can wreak havoc unopposed, while his opponents are silenced.
With that principle in mind, I organized a free-speech event in Garland, Texas. The world had recently been rocked by the murder of the Charlie Hebdo cartoonists. My version of “Je Suis Charlie” was an event here in America to show that we can still speak freely and draw whatever we like in the Land of the Free. Yet even after jihadists attacked our event, I was blamed—by Donald Trump among others—for provoking Muslims. And if I tried to hold a similar event now, no arena in the country would allow me to do so—not just because of the security risk, but because of the moral cowardice of all intellectual appeasers.
Under what law is it wrong to depict Muhammad? Under Islamic law. But I am not a Muslim, I don’t live under Sharia. America isn’t under Islamic law, yet for standing for free speech, I’ve been:
- Prevented from running our advertisements in every major city in this country. We have won free-speech lawsuits all over the country, which officials circumvent by prohibiting all political ads (while making exceptions for ads from Muslim advocacy groups);
- Shunned by the right, shut out of the Conservative Political Action Conference;
- Shunned by Jewish groups at the behest of terror-linked groups such as the Council on American-Islamic Relations;
- Blacklisted from speaking at universities;
- Prevented from publishing books, for security reasons and because publishers fear shaming from the left;
- Banned from Britain.
A Seattle court accused me of trying to shut down free speech after we merely tried to run an FBI poster on global terrorism, because authorities had banned all political ads in other cities to avoid running ours. Seattle blamed us for that, which was like blaming a woman for being raped because she was wearing a short skirt.
This kind of vilification and shunning is key to the left’s plan to shut down all dissent from its agenda—they make legislation restricting speech unnecessary.
The same refusal to allow our point of view to be heard has manifested itself elsewhere. The foundation of my work is individual rights and equality for all before the law. These are the foundational principles of our constitutional republic. That is now considered controversial. Truth is the new hate speech. Truth is going to be criminalized.
The First Amendment doesn’t only protect ideas that are sanctioned by the cultural and political elites. If “hate speech” laws are enacted, who would decide what’s permissible and what’s forbidden? The government? The gunmen in Garland?
There has been an inversion of the founding premise of this nation. No longer is it the subordination of might to right, but right to might. History is repeatedly deformed with the bloody consequences of this transition.
Pamela Geller is the editor in chief of the Geller Report and president of the American Freedom Defense Initiative.
Jonah GoldbergOf course free speech is under threat in America. Frankly, it’s always under threat in America because it’s always under threat everywhere. Ronald Reagan was right when he said in 1961, “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”
This is more than political boilerplate. Reagan identified the source of the threat: human nature. God may have endowed us with a right to liberty, but he didn’t give us all a taste for it. As with most finer things, we must work to acquire a taste for it. That is what civilization—or at least our civilization—is supposed to do: cultivate attachments to certain ideals. “Cultivate” shares the same Latin root as “culture,” cultus, and properly understood they mean the same thing: to grow, nurture, and sustain through labor.
In the past, threats to free speech have taken many forms—nationalist passion, Comstockery (both good and bad), political suppression, etc.—but the threat to free speech today is different. It is less top-down and more bottom-up. We are cultivating a generation of young people to reject free speech as an important value.
One could mark the beginning of the self-esteem movement with Nathaniel Branden’s 1969 paper, “The Psychology of Self-Esteem,” which claimed that “feelings of self-esteem were the key to success in life.” This understandable idea ran amok in our schools and in our culture. When I was a kid, Saturday-morning cartoons were punctuated with public-service announcements telling kids: “The most important person in the whole wide world is you, and you hardly even know you!”
The self-esteem craze was just part of the cocktail of educational fads. Other ingredients included multiculturalism, the anti-bullying crusade, and, of course, that broad phenomenon known as “political correctness.” Combined, they’ve produced a generation that rejects the old adage “sticks and stones can break my bones but words can never harm me” in favor of the notion that “words hurt.” What we call political correctness has been on college campuses for decades. But it lacked a critical mass of young people who were sufficiently receptive to it to make it a fully successful ideology. The campus commissars welcomed the new “snowflakes” with open arms; truly, these are the ones we’ve been waiting for.
“Words hurt” is a fashionable concept in psychology today. (See Psychology Today: “Why Words Can Hurt at Least as Much as Sticks and Stones.”) But it’s actually a much older idea than the “sticks and stones” aphorism. For most of human history, it was a crime to say insulting or “injurious” things about aristocrats, rulers, the Church, etc. That tendency didn’t evaporate with the Divine Right of Kings. Jonathan Haidt has written at book length about our natural capacity to create zones of sanctity, immune from reason.
And that is the threat free speech faces today. Those who inveigh against “hate speech” are in reality fighting “heresy speech”—ideas that do “violence” to sacred notions of self-esteem, racial or gender equality, climate change, and so on. Put whatever label you want on it, contemporary “social justice” progressivism acts as a religion, and it has no patience for blasphemy.
When Napoleon’s forces converted churches into stables, the clergy did not object on the grounds that regulations regarding the proper care and feeding of animals had been violated. They complained of sacrilege and blasphemy. When Charles Murray or Christina Hoff Summers visits college campuses, the protestors are behaving like the zealous acolytes of St. Jerome. Appeals to the First Amendment have as much power over the “antifa” fanatics as appeals to Odin did to champions of the New Faith.
That is the real threat to free speech today.
Jonah Goldberg is a senior editor at National Review and a fellow at the American Enterprise Institute.
KC JohnsonIn early May, the Washington Post urged universities to make clear that “racist signs, symbols, and speech are off-limits.” Given the extraordinarily broad definition of what constitutes “racist” speech at most institutions of higher education, this demand would single out most right-of-center (and, in some cases, even centrist and liberal) discourse on issues of race or ethnicity. The editorial provided the highest-profile example of how hostility to free speech, once confined to the ideological fringe on campus, has migrated to the liberal mainstream.
The last few years have seen periodic college protests—featuring claims that significant amounts of political speech constitute “violence,” thereby justifying censorship—followed by even more troubling attempts to appease the protesters. After the mob scene that greeted Charles Murray upon his visit to Middlebury College, for instance, the student government criticized any punishment for the protesters, and several student leaders wanted to require that future speakers conform to the college’s “community standard” on issues of race, gender, and ethnicity. In the last few months, similar attempts to stifle the free exchange of ideas in the name of promoting diversity occurred at Wesleyan, Claremont McKenna, and Duke. Offering an extreme interpretation of this point of view, one CUNY professor recently dismissed dialogue as “inherently conservative,” since it reinforced the “relations of power that presently exist.”
It’s easy, of course, to dismiss campus hostility to free speech as affecting only a small segment of American public life—albeit one that trains the next generation of judges, legislators, and voters. But, as Jonathan Chait observed in 2015, denying “the legitimacy of political pluralism on issues of race and gender” has broad appeal on the left. It is only most apparent on campus because “the academy is one of the few bastions of American life where the political left can muster the strength to impose its political hegemony upon others.” During his time in office, Barack Obama generally urged fellow liberals to support open intellectual debate. But the current campus environment previews the position of free speech in a post-Obama Democratic Party, increasingly oriented around identity politics.
Waning support on one end of the ideological spectrum for this bedrock American principle should provide a political opening for the other side. The Trump administration, however, seems poorly suited to make the case. Throughout his public career, Trump has rarely supported free speech, even in the abstract, and has periodically embraced legal changes to facilitate libel lawsuits. Moreover, the right-wing populism that motivates Trump’s base has a long tradition of ideological hostility to civil liberties of all types. Even in campus contexts, conservatives have defended free speech inconsistently, as seen in recent calls that CUNY disinvite anti-Zionist fanatic Linda Sarsour as a commencement speaker.
In a sharply polarized political environment, awash in dubiously-sourced information, free speech is all the more important. Yet this same environment has seen both sides, most blatantly elements of the left on campuses, demand restrictions on their ideological foes’ free speech in the name of promoting a greater good.
KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.
Laura KipnisI find myself with a strange-bedfellows problem lately. Here I am, a left-wing feminist professor invited onto the pages of Commentary—though I’d be thrilled if it were still 1959—while fielding speaking requests from right-wing think tanks and libertarians who oppose child-labor laws.
Somehow I’ve ended up in the middle of the free-speech-on-campus debate. My initial crime was publishing a somewhat contentious essay about campus sexual paranoia that put me on the receiving end of Title IX complaints. Apparently I’d created a “hostile environment” at my university. I was investigated (for 72 days). Then I wrote up what I’d learned about these campus inquisitions in a second essay. Then I wrote about it all some more, in a book exposing the kangaroo-court elements of the Title IX process—and the extra-legal gag orders imposed on everyone caught in its widening snare.
I can’t really comment on whether more charges have been filed against me over the book. I’ll just say that writing about being a Title IX respondent could easily become a life’s work. I learned, shortly after writing this piece, that I and my publisher were being sued for defamation, among other things.
Is free speech under threat on American campuses? Yes. We know all about student activists who wish to shut down talks by people with opposing views. I got smeared with a bit of that myself, after a speaking invitation at Wellesley—some students made a video protesting my visit before I arrived. The talk went fine, though a group of concerned faculty circulated an open letter afterward also protesting the invitation: My views on sexual politics were too heretical, and might have offended students.
I didn’t take any of this too seriously, even as right-wing pundits crowed, with Wellesley as their latest outrage bait. It was another opportunity to mock student activists, and the fact that I was myself a feminist rather than a Charles Murray or a Milo Yiannopoulos, made them positively gleeful.
I do find myself wondering where all my new free-speech pals were when another left-wing professor, Steven Salaita, was fired (or if you prefer euphemism, “his job offer was withdrawn”) from the University of Illinois after he tweeted criticism of Israel’s Gaza policy. Sure the tweets were hyperbolic, but hyperbole and strong opinions are protected speech, too.
I guess free speech is easy to celebrate until it actually challenges something. Funny, I haven’t seen Milo around lately—so beloved by my new friends when he was bashing minorities and transgender kids. Then he mistakenly said something authentic (who knew he was capable of it!), reminiscing about an experience a lot of gay men have shared: teenage sex with older men. He tried walking it back—no, no, he’d been a victim, not a participant—but his fan base was shrieking about pedophilia and fleeing in droves. Gee, they were all so against “political correctness” a few minutes before.
It’s easy to be a free-speech fan when your feathers aren’t being ruffled. No doubt what makes me palatable to the anti-PC crowd is having thus far failed to ruffle them enough. I’m just going to have to work harder.
Laura Kipnis’s latest book is Unwanted Advances: Sexual Paranoia Comes to Campus.
Eugene KontorovichThe free and open exchange of views—especially politically conservative or traditionally religious ones—is being challenged. This is taking place not just at college campuses but throughout our public spaces and cultural institutions. James Watson was fired from the lab he led since 1968 and could not speak at New York University because of petty, censorious students who would not know DNA from LSD. Our nation’s founders and heroes are being “disappeared” from public commemoration, like Trotsky from a photograph of Soviet rulers.
These attacks on “free speech” are not the result of government action. They are not what the First Amendment protects against. The current methods—professional and social shaming, exclusion, and employment termination—are more inchoate, and their effects are multiplied by self-censorship. A young conservative legal scholar might find himself thinking: “If the late Justice Antonin Scalia can posthumously be deemed a ‘bigot’ by many academics, what chance have I?”
Ironically, artists and intellectuals have long prided themselves on being the first defenders of free speech. Today, it is the institutions of both popular and high culture that are the censors. Is there one poet in the country who would speak out for Ann Coulter?
The inhibition of speech at universities is part of a broader social phenomenon of making longstanding, traditional views and practices sinful overnight. Conservatives have not put up much resistance to this. To paraphrase Martin Niemöller’s famous dictum: “First they came for Robert E. Lee, and I said nothing, because Robert E. Lee meant nothing to me.”
The situation with respect to Israel and expressions of support for it deserves separate discussion. Even as university administrators give political power to favored ideologies by letting them create “safe spaces” (safe from opposing views), Jews find themselves and their state at the receiving end of claims of apartheid—modern day blood libels. It is not surprising if Jewish students react by demanding that they get a safe space of their own. It is even less surprising if their parents, paying $65,000 a year, want their children to have a nicer time of it. One hears Jewish groups frequently express concern about Jewish students feeling increasingly isolated and uncomfortable on campus.
But demanding selective protection from the new ideological commissars is unlikely to bring the desired results. First, this new ideology, even if it can be harnessed momentarily to give respite to harassed Jews on campus, is ultimately illiberal and will be controlled by “progressive” forces. Second, it is not so terrible for Jews in the Diaspora to feel a bit uncomfortable. It has been the common condition of Jews throughout the millennia. The social awkwardness that Jews at liberal arts schools might feel in being associated with Israel is of course one of the primary justifications for the Jewish State. Facing the snowflakes incapable of hearing a dissonant view—but who nonetheless, in the grip of intersectional ecstasy, revile Jewish self-determination—Jewish students should toughen up.
Eugene Kontorovich teaches constitutional law at Northwestern University and heads the international law department of the Kohelet Policy Forum in Jerusalem.
Nicholas LemannThere’s an old Tom Wolfe essay in which he describes being on a panel discussion at Princeton in 1965 and provoking the other panelists by announcing that America, rather than being in crisis, is in the middle of a “happiness explosion.” He was arguing that the mass effects of 20 years of post–World War II prosperity made for a larger phenomenon than the Vietnam War, the racial crisis, and the other primary concerns of intellectuals at the time.
In the same spirit, I’d say that we are in the middle of a free-speech explosion, because of 20-plus years of the Internet and 10-plus years of social media. If one understands speech as disseminated individual opinion, then surely we live in the free-speech-est society in the history of the world. Anybody with access to the unimpeded World Wide Web can say anything to a global audience, and anybody can hear anything, too. All threats to free speech should be understood in the context of this overwhelmingly reality.
It is a comforting fantasy that a genuine free-speech regime will empower mainly “good,” but previously repressed, speech. Conversely, repressive regimes that are candid enough to explain their anti-free-speech policies usually say that they’re not against free speech, just “bad” speech. We have to accept that more free speech probably means, in the aggregate, more bad speech, and also a weakening of the power, authority, and economic support for information professionals such as journalists. Welcome to the United States in 2017.
I am lucky enough to live and work on the campus of a university, Columbia, that has been blessedly free of successful attempts to repress free speech. Just in the last few weeks, Charles Murray and Dinesh D’Souza have spoken here without incident. But, yes, the evidently growing popularity of the idea that “hate speech” shouldn’t be permitted on campuses is a problem, especially, it seems, at small private liberal-arts colleges. We should all do our part, and I do, by frequently and publicly endorsing free-speech principles. Opposing the BDS movement falls squarely into that category.
It’s not just on campuses that free-speech vigilance is needed, though. The number-one threat to free speech, to my mind, is that the wide-open Web has been replaced by privately owned platforms such as Facebook and Google as the way most people experience the public life of the Internet. These companies are committed to banning “hate speech,” and they are eager to operate freely in countries, like China, that don’t permit free political speech. That makes for a far more consequential constrained environment than any campus’s speech code.
Also, Donald Trump regularly engages in presidentially unprecedented rhetoric demonizing people who disagree with him. He seems to think this is all in good fun, but, as we have already seen at his rallies, not everybody hears it that way. The place where Trumpism will endanger free speech isn’t in the center—the White House press room—but at the periphery, for example in the way that local police handle bumptious protestors and the journalists covering them. This is already happening around the country. If Trump were as disciplined and knowledgeable as Vladimir Putin or Recep Tayyip Erdogan, which so far he seems not to be, then free speech could be in even more serious danger from government, which in most places is its usual main enemy.
Nicholas Lemann is a professor at Columbia Journalism School and a staff writer for the New Yorker.
Michael J. LewisFree speech is a right but it is also a habit, and where the habit shrivels so will the right. If free speech today is in headlong retreat—everywhere threatened by regulation, organized harassment, and even violence—it is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats.
Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious. Since the time of Pericles, deliberative democracy has been predicated on the art of persuasion, which demands the forceful clarity of thought and expression without which no one has ever been persuaded. But a legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance. It has been decades since any presidential debate has seen any sustained give and take over a matter of policy. If there is any suspense at all, it is only the possibility that a fatigued or peeved candidate might blurt out that tactless shard of truth known as a gaffe.
A generation accustomed to hearing platitudes smoothly dispensed from behind a teleprompter will find the speech of a fearless extemporaneous speaker to be startling, even disquieting; unfamiliar ideas always are. Unhappily, they have been taught to interpret that disquiet as an injury done to them, rather than as a premise offered to them to consider. All this would not have happened—certainly not to this extent—had not our deliberative democracy decided a generation ago that it preferred the security of incumbency to the risks of unshackled debate. The compulsory contraction of free speech on college campuses is but the logical extension of the voluntary contraction of free speech in our political culture.
Michael J. Lewis’s new book is City of Refuge: Separatists and Utopian Town Planning (Princeton University Press).
Heather Mac DonaldThe answer to the symposium question depends on how powerful the transmission belt is between academia and the rest of the country. On college campuses, violence and brute force are silencing speakers who challenge left-wing campus orthodoxies. These totalitarian outbreaks have been met with listless denunciations by college presidents, followed by . . . virtually nothing. As of mid-May, the only discipline imposed for 2017’s mass attacks on free speech at UC Berkeley, Middlebury, and Clare-mont McKenna College was a letter of reprimand inserted—sometimes only temporarily—into the files of several dozen Middlebury students, accompanied by a brief period of probation. Previous outbreaks of narcis-sistic incivility, such as the screaming-girl fit at Yale and the assaults on attendees of Yale’s Buckley program, were discreetly ignored by college administrators.
Meanwhile, the professoriate unapologetically defends censorship and violence. After the February 1 riot in Berkeley to prevent Milo Yiannapoulos from speaking, Déborah Blocker, associate professor of French at UC Berkeley, praised the rioters. They were “very well-organized and very efficient,” Blocker reported admiringly to her fellow professors. “They attacked property but they attacked it very sparingly, destroying just enough University property to obtain the cancellation order for the MY event and making sure no one in the crowd got hurt” (emphasis in original). (In fact, perceived Milo and Donald Trump supporters were sucker-punched and maced; businesses downtown were torched and vandalized.) New York University’s vice provost for faculty, arts, humanities, and diversity, Ulrich Baer, displayed Orwellian logic by claiming in a New York Times op-ed that shutting down speech “should be understood as an attempt to ensure the conditions of free speech for a greater group of people.”
Will non-academic institutions take up this zeal for outright censorship? Other ideological products of the left-wing academy have been fully absorbed and operationalized. Racial victimology, which drives much of the campus censorship, is now standard in government and business. Corporate diversity trainers counsel that bias is responsible for any lack of proportional racial representation in the corporate ranks. Racial disparities in school discipline and incarceration are universally attributed to racism rather than to behavior. Public figures have lost jobs for violating politically correct taboos.
Yet Americans possess an instinctive commitment to the First Amendment. Federal judges, hardly an extension of the Federalist Society, have overwhelmingly struck down campus speech codes. It is hard to imagine that they would be any more tolerant of the hate-speech legislation so prevalent in Europe. So the question becomes: At what point does the pressure to conform to the elite worldview curtail freedom of thought and expression, even without explicit bans on speech?
Social stigma against conservative viewpoints is not the same as actual censorship. But the line can blur. The Obama administration used regulatory power to impose a behavioral conformity on public and private entities. School administrators may have technically still possessed the right to dissent from novel theories of gender, but they had to behave as if they were fully on board with the transgender revolution when it came to allowing boys to use girls’ bathrooms and locker rooms.
Had Hillary Clinton had been elected president, the federal bureaucracy would have mimicked campus diversocrats with even greater zeal. That threat, at least, has been avoided. Heresies against left-wing dogma may still enter the public arena, if only by the back door. The mainstream media have lurched even further left in the Trump era, but the conservative media, however mocked and marginalized, are expanding (though Twitter and Facebook’s censorship of conservative speakers could be a harbinger of more official silencing).
Outside the academy, free speech is still legally protected, but its exercise requires ever greater determination.
Heather Mac Donald is a fellow at the Manhattan Institute and the author of The War on Cops.
John McWhorterThere is a certain mendacity, as Brick put it in Cat on a Hot Tin Roof, in our discussion of free speech on college campuses. Namely, none of us genuinely wish that absolutely all issues be aired in the name of education and open-mindedness. To insist so is to pretend that civilized humanity makes nothing we could call advancement in philosophical consensus.
I doubt we need “free speech” on issues such as whether slavery and genocide are okay, whether it has been a mistake to view women as men’s equals, or to banish as antique the idea that whites are a master race while other peoples represent a lower rung on the Darwinian scale. With all due reverence of John Stuart Mill’s advocacy for the regular airing of even noxious views in order to reinforce clarity on why they were rejected, we are also human beings with limited time. A commitment to the Enlightenment justifiably will decree that certain views are, indeed, no longer in need of discussion.
However, our modern social-justice warriors are claiming that this no-fly zone of discussion is vaster than any conception of logic or morality justifies. We are being told that questions regarding the modern proposals about cultural appropriation, about whether even passing infelicitous statements constitute racism in the way that formalized segregation and racist disparagement did, or about whether social disparities can be due to cultural legacies rather than structural impediments, are as indisputably egregious, backwards, and abusive as the benighted views of the increasingly distant past.
That is, the new idea is not only that discrimination and inequality still exist, but that to even question the left’s utopian expectation on such matters justifies the same furious, sloganistic and even physically violent resistance that was once levelled against those designated heretics by a Christian hegemony.
Of course the protesters in question do not recognize themselves in a portrait as opponents of something called heresy. They suppose that Galileo’s opponents were clearly wrong but that they, today, are actually correct in a way that no intellectual or moral argument could coherently deny.
As such, we have students allowed to decree college campuses as “racist” when they are the least racist spaces on the planet—because they are, predictably given the imperfection of humans, not perfectly free of passingly unsavory interactions. Thinkers invited to talk for a portion of an hour from the right rather than the left and then have dinner with a few people and fly home are treated as if they were reanimated Hitlers. The student of color who hears a few white students venturing polite questions about the leftist orthodoxy is supported in fashioning these questions as “racist” rhetoric.
The people on college campuses who openly and aggressively spout this new version of Christian (or even Islamist) crusading—ironically justifying it as a barricade against “fascist” muzzling of freedom when the term applies ominously well to the regime they are fostering—are a minority. However, the sawmill spinning blade of their rhetoric has succeeding in rendering opposition as risky as espousing pedophilia, such that only those natively open to violent criticism dare speak out. The latter group is small. The campus consensus thereby becomes, if only at moralistic gunpoint à la the ISIS victim video, a strangled hard-leftism.
Hence freedom of speech is indeed threatened on today’s college campuses. I have lost count of how many of my students, despite being liberal Democrats (many of whom sobbed at Hillary Clinton’s loss last November), have told me that they are afraid to express their opinions about issues that matter, despite the fact that their opinions are ones that any liberal or even leftist person circa 1960 would have considered perfectly acceptable.
Something has shifted of late, and not in a direction we can legitimately consider forwards.
John McWhorter teaches linguistics, philosophy, and music history at Columbia University and is the author of The Language Hoax, Words on the Move, and Talking Back, Talking Black.
Kate Bachelder OdellIt’s 2021, and Harvard Square has devolved into riots: Some 120 people are injured in protests, and the carnage includes fire-consumed cop cars and smashed-in windows. The police discharge canisters of tear gas, and, after apprehending dozens of protesters, enforce a 1:45 A.M. curfew. Anyone roaming the streets after hours is subject to arrest. About 2,000 National Guardsmen are prepared to intervene. Such violence and disorder is also roiling Berkeley and other elite and educated areas.
Oh, that’s 1970. The details are from the Harvard Crimson’s account of “anti-war” riots that spring. The episode is instructive in considering whether free speech is under threat in the United States. Almost daily, there’s a new YouTube installment of students melting down over viewpoints of speakers invited to one campus or another. Even amid speech threats from government—for example, the IRS’s targeting of political opponents—nothing has captured the public’s attention like the end of free expression at America’s institutions of higher learning.
Yet disruption, confusion, and even violence are not new campus phenomena. And it’s hard to imagine that young adults who deployed brute force in the 1960s and ’70s were deeply committed to the open and peaceful exchange of ideas.
There may also be reason for optimism. The rough and tumble on campus in the 1960s and ’70s produced a more even-tempered ’80s and ’90s, and colleges are probably heading for another course correction. In covering the ruckuses at Yale, Missouri, and elsewhere, I’ve talked to professors and students who are figuring out how to respond to the illiberalism, even if the reaction is delayed. The University of Chicago put out a set of free-speech principles last year, and others schools such as Princeton and Purdue have endorsed them.
The NARPs—Non-Athletic Regular People, as they are sometimes known on campus—still outnumber the social-justice warriors, who appear to be overplaying their hand. Case in point is the University of Missouri, which experienced a precipitous drop in enrollment after instructor Melissa Click and her ilk stoked racial tensions last spring. The college has closed dorms and trimmed budgets. Which brings us to another silver lining: The economic model of higher education (exorbitant tuition to pay ever more administrators) may blow up traditional college before the fascists can.
Note also that the anti-speech movement is run by rich kids. A Brookings Institution analysis from earlier this year discovered that “the average enrollee at a college where students have attempted to restrict free speech comes from a family with an annual income $32,000 higher than that of the average student in America.” Few rank higher in average income than those at Middlebury College, where students evicted scholar Charles Murray in a particularly ugly scene. (The report notes that Murray was received respectfully at Saint Louis University, “where the median income of students’ families is half Middlebury’s.”) The impulses of over-adulated 20-year-olds may soon be tempered by the tyranny of having to show up for work on a daily basis.
None of this is to suggest that free speech is enjoying some renaissance either on campus or in America. But perhaps as the late Wall Street Journal editorial-page editor Robert Bartley put it in his valedictory address: “Things could be worse. Indeed, they have been worse.”
Kate Bachelder Odell is an editorial writer for the Wall Street Journal.
Jonathan RauchIs free speech under threat? The one-syllable answer is “yes.” The three-syllable answer is: “Yes, of course.” Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive. “You mean to say that speech that is offensive, untruthful, malicious, seditious, antisocial, blasphemous, heretical, misguided, or all of the above deserves government protection?” That seemingly bizarre proposition is defensible only on the grounds that the marketplace of ideas turns out to be the most powerful engine of knowledge, prosperity, liberty, social peace, and moral advancement that our species has had the good fortune to discover.
Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it. At discouraging moments, it is helpful to remember that the country has made great strides toward free speech since 1798, when the Adams administration arrested and jailed its political critics; and since the 1920s, when the U.S. government banned and burned James Joyce’s great novel Ulysses; and since 1954, when the government banned ONE, a pioneering gay journal. (The cover article was a critique of the government’s indecency censors, who censored it.) None of those things could happen today.
I suppose, then, the interesting question is: What kind of threat is free speech under today? In the present age, direct censorship by government bodies is rare. Instead, two more subtle challenges hold sway, especially, although not only, on college campuses. The first is a version of what I called, in my book Kindly Inquisitors, the humanitarian challenge: the idea that speech that is hateful or hurtful (in someone’s estimation) causes pain and thus violates others’ rights, much as physical violence does. The other is a version of what I called the egalitarian challenge: the idea that speech that denigrates minorities (again, in someone’s estimation) perpetuates social inequality and oppression and thus also is a rights violation. Both arguments call upon administrators and other bureaucrats to defend human rights by regulating speech rights.
Both doctrines are flawed to the core. Censorship harms minorities by enforcing conformity and entrenching majority power, and it no more ameliorates hatred and injustice than smashing thermometers ameliorates global warming. If unwelcome words are the equivalent of bludgeons or bullets, then the free exchange of criticism—science, in other words—is a crime. I could go on, but suffice it to say that the current challenges are new variations on ancient themes—and they will be followed, in decades and centuries to come, by many, many other variations. Memo to free-speech advocates: Our work is never done, but the really amazing thing, given the proposition we are tasked to defend, is how well we are doing.
Jonathan Rauch is a senior fellow at the Brookings Institution and the author of Kindly Inquisitors: The New Attacks on Free Thought.
Nicholas Quinn RosenkranzSpeech is under threat on American campuses as never before. Censorship in various forms is on the rise. And this year, the threat to free speech on campus took an even darker turn, toward actual violence. The prospect of Milo Yiannopoulos speaking at Berkeley provoked riots that caused more than $100,000 worth of property damage on the campus. The prospect of Charles Murray speaking at Middlebury led to a riot that put a liberal professor in the hospital with a concussion. Ann Coulter’s speech at Berkeley was cancelled after the university determined that none of the appropriate venues could be protected from “known security threats” on the date in question.
The free-speech crisis on campus is caused, at least in part, by a more insidious campus pathology: the almost complete lack of intellectual diversity on elite university faculties. At Yale, for example, the number of registered Republicans in the economics department is zero; in the psychology department, there is one. Overall, there are 4,410 faculty members at Yale, and the total number of those who donated to a Republican candidate during the 2016 primaries was three.
So when today’s students purport to feel “unsafe” at the mere prospect of a conservative speaker on campus, it may be easy to mock them as “delicate snowflakes,” but in one sense, their reaction is understandable: If students are shocked at the prospect of a Republican behind a university podium, perhaps it is because many of them have never before laid eyes on one.
To see the connection between free speech and intellectual diversity, consider the recent commencement speech of Harvard President Drew Gilpin Faust:
Universities must be places open to the kind of debate that can change ideas….Silencing ideas or basking in intellectual orthodoxy independent of facts and evidence impedes our access to new and better ideas, and it inhibits a full and considered rejection of bad ones. . . . We must work to ensure that universities do not become bubbles isolated from the concerns and discourse of the society that surrounds them. Universities must model a commitment to the notion that truth cannot simply be claimed, but must be established—established through reasoned argument, assessment, and even sometimes uncomfortable challenges that provide the foundation for truth.
Faust is exactly right. But, alas, her commencement audience might be forgiven a certain skepticism. After all, the number of registered Republicans in several departments at Harvard—e.g., history and psychology—is exactly zero. In those departments, the professors themselves may be “basking in intellectual orthodoxy” without ever facing “uncomfortable challenges.” This may help explain why some students will do everything in their power to keep conservative speakers off campus: They notice that faculty hiring committees seem to do exactly the same thing.
In short, it is a promising sign that true liberal academics like Faust have started speaking eloquently about the crucial importance of civil, reasoned disagreement. But they will be more convincing on this point when they hire a few colleagues with whom they actually disagree.
Nicholas Quinn Rosenkranz is a professor of law at Georgetown. He serves on the executive committee of Heterodox Academy, which he co-founded, on the board of directors of the Federalist Society, and on the board of directors of the Foundation for Individual Rights in Education (FIRE).
Ben ShapiroIn February, I spoke at California State University in Los Angeles. Before my arrival, professors informed students that a white supremacist would be descending on the school to preach hate; threats of violence soon prompted the administration to cancel the event. I vowed to show up anyway. One hour before the event, the administration backed down and promised to guarantee that the event could go forward, but police officers were told not to stop the 300 students, faculty, and outside protesters who blocked and assaulted those who attempted to attend the lecture. We ended up trapped in the auditorium, with the authorities telling students not to leave for fear of physical violence. I was rushed from campus under armed police guard.
Is free speech under assault?
Of course it is.
On campus, free speech is under assault thanks to a perverse ideology of intersectionality that claims victim identity is of primary value and that views are a merely secondary concern. As a corollary, if your views offend someone who outranks you on the intersectional hierarchy, your views are treated as violence—threats to identity itself. On campus, statements that offend an individual’s identity have been treated as “microaggressions”–actual aggressions against another, ostensibly worthy of violence. Words, students have been told, may not break bones, but they will prompt sticks and stones, and rightly so.
Thus, protesters around the country—leftists who see verbiage as violence—have, in turn, used violence in response to ideas they hate. Leftist local authorities then use the threat of violence as an excuse to ideologically discriminate against conservatives. This means public intellectuals like Charles Murray being run off of campus and his leftist professorial cohort viciously assaulted; it means Ann Coulter being targeted for violence at Berkeley; it means universities preemptively banning me and Ayaan Hirsi Ali and Condoleezza Rice and even Jason Riley.
The campus attacks on free speech are merely the most extreme iteration of an ideology that spans from left to right: the notion that your right to free speech ends where my feelings begin. Even Democrats who say that Ann Coulter should be allowed to speak at Berkeley say that nobody should be allowed to contribute to a super PAC (unless you’re a union member, naturally).
Meanwhile, on the right, the president’s attacks on the press have convinced many Republicans that restrictions on the press wouldn’t be altogether bad. A Vanity Fair/60 Minutes poll in late April found that 36 percent of Americans thought freedom of the press “does more harm than good.” Undoubtedly, some of that is due to the media’s obvious bias. CNN’s Jeff Zucker has targeted the Trump administration for supposedly quashing journalism, but he was silent when the Obama administration’s Department of Justice cracked down on reporters from the Associated Press and Fox News, and when hacks like Deputy National Security Adviser Ben Rhodes openly sold lies regarding Iran. But for some on the right, the response to press falsities hasn’t been to call for truth, but to instead echo Trumpian falsehoods in the hopes of damaging the media. Free speech is only important when people seek the truth. Leftists traded truth for tribalism long ago; in response, many on the right seem willing to do the same. Until we return to a common standard under which facts matter, free speech will continue to rest on tenuous grounds.
Ben Shapiro is the editor in chief of The Daily Wire and the host of The Ben Shapiro Show.
Judith ShulevitzIt’s tempting to blame college and university administrators for the decline of free speech in America, and for years I did just that. If the guardians of higher education won’t inculcate the habits of mind required for serious thinking, I thought, who will? The unfettered but civil exchange of ideas is the basic operation of education, just as addition is the basic operation of arithmetic. And universities have to teach both the unfettered part and the civil part, because arguing in a respectful manner isn’t something anyone does instinctively.
So why change my mind now? Schools still cling to speech codes, and there still aren’t enough deans like the one at the University of Chicago who declared his school a safe-space-free zone. My alma mater just handed out prizes for “enhancing race and/or ethnic relations” to two students caught on video harassing the dean of their residential college, one screaming at him that he’d created “a space for violence to happen,” the other placing his face inches away from the dean’s and demanding, “Look at me.” All this because they deemed a thoughtful if ill-timed letter about Halloween costumes written by the dean’s wife to be an act of racist aggression. Yale should discipline students who behave like that, even if they’re right on the merits (I don’t think they were, but that’s not the point). They certainly don’t deserve awards. I can’t believe I had to write that sentence.
But in abdicating their responsibilites, the universities have enabled something even worse than an attack on free speech. They’ve unleashed an assault on themselves. There’s plenty of free speech around; we know that because so much bad speech—low-minded nonsense—tests our constitutional tolerance daily, and that’s holding up pretty well. (As Nicholas Lemann observes elsewhere in this symposium, Facebook and Google represent bigger threats to free speech than students and administrators.) What’s endangered is good speech.
Universities were setting themselves up to be used. Provocateurs exploit the atmosphere on campus to goad overwrought students, then gleefully trash the most important bastion of our crumbling civil society. Higher education and everything it stands for—logical argument, the scientific method, epistemological rigor—start to look illegitimate. Voters perceive tenure and research and higher education itself as hopelessly partisan and unworthy of taxpayers’ money.
The press is a secondary victim of this process of delegitimization. If serious inquiry can be waved off as ideology, then facts won’t be facts and reporting can’t be trusted. All journalism will be equal to all other journalism, and all journalists will be reduced to pests you can slam to the ground with near impunity. Politicians will be able to say anything and do just about anything and there will be no countervailing authority to challenge them. I’m pretty sure that that way lies Putinism and Erdoganism. And when we get to that point, I’m going to start worrying about free speech again.
Judith Shulevitz is a critic in New York.
Harvey SilverglateFree speech is, and has always been, threatened. The title of Nat Hentoff’s 1993 book Free Speech for Me – but Not for Thee is no less true today than at any time, even as the Supreme Court has accorded free speech a more absolute degree of protection than in any previous era.
Since the 1980s, the high court has decided most major free-speech cases in favor of speech, with most of the major decisions being unanimous or nearly so.
Women’s-rights advocates were turned back by the high court in 1986 when they sought to ban the sale of printed materials that, because deemed pornographic by some, were alleged to promote violence against women. Censorship in the name of gender–based protection thus failed to gain traction.
Despite the demands of civil-rights activists, the Supreme Court in 1992 declared cross-burning to be a protected form of expression in R.A.V. v. City of St. Paul, a decision later refined to strengthen a narrow exception for when cross-burning occurs primarily as a physical threat rather than merely an expression of hatred.
Other attempts at First Amendment circumvention have been met with equally decisive rebuff. When the Reverend Jerry Falwell sued Hustler magazine publisher Larry Flynt for defamation growing out of a parody depicting Falwell’s first sexual encounter as a drunken tryst with his mother in an outhouse, a unanimous Supreme Court lectured on the history of parody as a constitutionally protected, even if cruel, form of social and political criticism.
When the South Boston Allied War Veterans, sponsor of Boston’s Saint Patrick’s Day parade, sought to exclude a gay veterans’ group from marching under its own banner, the high court unanimously held that as a private entity, even though marching in public streets, the Veterans could exclude any group marching under a banner conflicting with the parade’s socially conservative message, notwithstanding public-accommodations laws. The gay group could have its own parade but could not rain on that of the conservatives.
Despite such legal clarity, today’s most potent attacks on speech are coming, ironically, from liberal-arts colleges. Ubiquitous “speech codes” limit speech that might insult, embarrass, or “harass,” in particular, members of “historically disadvantaged” groups. “Safe spaces” and “trigger warnings” protect purportedly vulnerable students from hearing words and ideas they might find upsetting. Student demonstrators and threats of violence have forced the cancellation of controversial speakers, left and right.
It remains unclear how much campus censorship results from politically correct faculty, control-obsessed student-life administrators, or students socialized and indoctrinated into intolerance. My experience suggests that the bureaucrats are primarily, although not entirely, to blame. When sued, colleges either lose or settle, pay a modest amount, and then return to their censorious ways.
This trend threatens the heart and soul of liberal education. Eventually it could infect the entire society as these students graduate and assume influential positions. Whether a resulting flood of censorship ultimately overcomes legal protections and weakens democracy remains to be seen.
Harvey Silverglate, a Boston-based lawyer and writer, is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (Free Press, 1998). He co-founded the Foundation for Individual Rights in Education in 1999 and is on FIRE’s board of directors. He spent some three decades on the board of the ACLU of Massachusetts, two of those years as chairman. Silverglate taught at Harvard Law School for a semester during a sabbatical he took in the mid-1980s.
Christina Hoff SommersWhen Heather Mac Donald’s “blue lives matter” talk was shut down by a mob at Claremont McKenna College, the president of neighboring Pomona College sent out an email defending free speech. Twenty-five students shot back a response: “Heather Mac Donald is a fascist, a white supremacist . . . classist, and ignorant of interlocking systems of domination that produce the lethal conditions under which oppressed peoples are forced to live.”
Some blame the new campus intolerance on hypersensitive, over-trophied millennials. But the students who signed that letter don’t appear to be fragile. Nor do those who recently shut down lectures at Berkeley, Middlebury, DePaul, and Cal State LA. What they are is impassioned. And their passion is driven by a theory known as intersectionality.
Intersectionality is the source of the new preoccupation with microaggressions, cultural appropriation, and privilege-checking. It’s the reason more than 200 colleges and universities have set up Bias Response Teams. Students who overhear potentially “otherizing” comments or jokes are encouraged to make anonymous reports to their campus BRTs. A growing number of professors and administrators have built their careers around intersectionality. What is it exactly?
Intersectionality is a neo-Marxist doctrine that views racism, sexism, ableism, heterosexism, and all forms of “oppression” as interconnected and mutually reinforcing. Together these “isms” form a complex arrangement of advantages and burdens. A white woman is disadvantaged by her gender but advantaged by her race. A Latino is burdened by his ethnicity but privileged by his gender. According to intersectionality, American society is a “matrix of domination,” with affluent white males in control. Not only do they enjoy most of the advantages, they also determine what counts as “truth” and “knowledge.”
But marginalized identities are not without resources. According to one of intersectionality’s leading theorists, Patricia Collins (former president of the American Sociology Association), disadvantaged groups have access to deeper, more liberating truths. To find their voice, and to enlighten others to the true nature of reality, they require a safe space—free of microaggressive put-downs and imperious cultural appropriations. Here they may speak openly about their “lived experience.” Lived experience, according to intersectional theory, is a better guide to the truth than self-serving Western and masculine styles of thinking. So don’t try to refute intersectionality with logic or evidence: That only proves that you are part of the problem it seeks to overcome.
How could comfortably ensconced college students be open to a convoluted theory that describes their world as a matrix of misery? Don’t they flinch when they hear intersectional scholars like bell hooks refer to the U.S. as an “imperialist, white-supremacist, capitalist patriarchy”? Most take it in stride because such views are now commonplace in high-school history and social studies texts. And the idea that knowledge comes from lived experience rather than painstaking study and argument is catnip to many undergrads.
Silencing speech and forbidding debate is not an unfortunate by-product of intersectionality—it is a primary goal. How else do you dismantle a lethal system of oppression? As the protesting students at Claremont McKenna explained in their letter: “Free speech . . . has given those who seek to perpetuate systems of domination a platform to project their bigotry.” To the student activists, thinkers like Heather MacDonald and Charles Murray are agents of the dominant narrative, and their speech is “a form of violence.”
It is hard to know how our institutions of higher learning will find their way back to academic freedom, open inquiry, and mutual understanding. But as long as intersectional theory goes unchallenged, campus fanaticism will intensify.
Christina Hoff Sommers is a resident scholar at the American Enterprise Institute. She is the author of several books, including Who Stole Feminism? and The War Against Boys. She also hosts The Factual Feminist, a video blog. @Chsommers
John StosselYes, some college students do insane things. Some called police when they saw “Trump 2016” chalked on sidewalks. The vandals at Berkeley and the thugs who assaulted Charles Murray are disgusting. But they are a minority. And these days people fight back.
Someone usually videotapes the craziness. Yale’s “Halloween costume incident” drove away two sensible instructors, but videos mocking Yale’s snowflakes, like “Silence U,” make such abuse less likely. Groups like Young America’s Foundation (YAF) publicize censorship, and the Foundation for Individual Rights in Education (FIRE) sues schools that restrict speech.
Consciousness has been raised. On campus, the worst is over. Free speech has always been fragile. I once took cameras to Seton Hall law school right after a professor gave a lecture on free speech. Students seemed to get the concept. Sean, now a lawyer, said, “Protect freedom for thought we hate; otherwise you never have a society where ideas clash, and we come up with the best idea.” So I asked, “Should there be any limits?” Students listed “fighting words,” “shouting fire in a theater,” malicious libel, etc.— reasonable court-approved exceptions. But then they went further. Several wanted bans on “hate” speech, “No value comes out of hate speech,” said Javier. “It inevitably leads to violence.”
No it doesn’t, I argued, “Also, doesn’t hate speech bring ideas into the open, so you can better argue about them, bringing you to the truth?”
“No,” replied Floyd, “With hate speech, more speech is just violence.”
So I pulled out a big copy of the First Amendment and wrote, “exception: hate speech.”
Two students wanted a ban on flag desecration “to respect those who died to protect it.”
One wanted bans on blasphemy:
“Look at the gravity of the harm versus the value in blasphemy—the harm outweighs the value.”
Several wanted a ban on political speech by corporations because of “the potential for large corporations to improperly influence politicians.”
Finally, Jillian, also now a lawyer, wanted hunting videos banned.
“It encourages harm down the road.”
I asked her, incredulously, “you’re comfortable locking up people who make a hunting film?”
“Oh, yeah,” she said. “It’s unnecessary cruelty to feeling and sentient beings.”
So, I picked up my copy of the Bill of Rights again. After “no law . . . abridging freedom of speech,” I added: “Except hate speech, flag burning, blasphemy, corporate political speech, depictions of hunting . . . ”
That embarrassed them. “We may have gone too far,” said Sean. Others agreed. One said, “Cross out the exceptions.” Free speech survived, but it was a close call. Respect for unpleasant speech will always be thin. Then-Senator Hillary Clinton wanted violent video games banned. John McCain and Russ Feingold tried to ban political speech. Donald Trump wants new libel laws, and if you burn a flag, he tweeted, consequences might be “loss of citizenship or a year in jail!” Courts or popular opinion killed those bad ideas.
Free speech will survive, assuming those of us who appreciate it use it to fight those who would smother it.
John Stossel is a FOX News/FOX Business Network Contributor.
Warren TreadgoldEven citizens of dictatorships are free to praise the regime and to talk about the weather. The only speech likely to be threatened anywhere is the sort that offends an important and intolerant group. What is new in America today is a leftist ideology that threatens speech precisely because it offends certain important and intolerant groups: feminists and supposedly oppressed minorities.
So far this new ideology is clearly dominant only in colleges and universities, where it has become so strong that most controversies concern outside speakers invited by students, not faculty speakers or speakers invited by administrators. Most academic administrators and professors are either leftists or have learned not to oppose leftism; otherwise they would probably never have been hired. Administrators treat even violent leftist protestors with respect and are ready to prevent conservative and moderate outsiders from speaking rather than provoke protests. Most professors who defend conservative or moderate speakers argue that the speakers’ views are indeed noxious but say that students should be exposed to them to learn how to refute them. This is very different from encouraging a free exchange of ideas.
Although the new ideology began on campuses in the ’60s, it gained authority outside them largely by means of several majority decisions of the Supreme Court, from Roe (1973) to Obergefell (2015). The Supreme Court decisions that endanger free speech are based on a presumed consensus of enlightened opinion that certain rights favored by activists have the same legitimacy as rights explicitly guaranteed by the Constitution—or even more legitimacy, because the rights favored by activists are assumed to be so fundamental that they need no grounding in specific constitutional language. The Court majorities found restricting abortion rights or homosexual marriage, as large numbers of Americans wish to do, to be constitutionally equivalent to restricting black voting rights or interracial marriage. Any denial of such equivalence therefore opposes fundamental constitutional rights and can be considered hate speech, advocating psychological and possibly physical harm to groups like women seeking abortions or homosexuals seeking approval. Such speech may still be constitutionally protected, but acting upon it is not.
This ideology of forbidding allegedly offensive speech has spread to most of the Democratic Party and the progressive movement. Rather than seeing themselves as taking one side in a free debate, progressives increasingly argue (for example) that opposing abortion is offensive to women and supporting the police is offensive to blacks. Some politicians object so strongly to such speech that despite their interest in winning votes, they attack voters who disagree with them as racists or sexists. Expressing views that allegedly discriminate against women, blacks, homosexuals, and various other minorities can now be grounds for a lawsuit.
Speech that supposedly offends women or minorities has already cost some people their careers, their businesses, and their opportunities to deliver or hear speeches. Such intimidation is the intended result of an ideology that threatens free speech.
Warren Treadgold is a professor of history at Saint Louis University.
Matt WelchLike a sullen zoo elephant rocking back and forth from leg to leg, there is an oversized paradox we’d prefer not to see standing smack in the sightlines of most our policy debates. Day by day, even minute by minute, America simultaneously gets less free in the laboratory, but more free in the field. Individuals are constantly expanding the limits and applications of their own autonomy, even as government transcends prior restraints on how far it can reach into our intimate business.
So it is that the Internal Revenue Service can charge foreign banks with collecting taxes on U.S. citizens (therefore causing global financial institutions to shun many of the estimated 6 million-plus Americans who live abroad), even while block-chain virtuosos make illegal transactions wholly undetectable to authorities. It has never been easier for Americans to travel abroad, and it’s never been harder to enter the U.S. without showing passports, fingerprints, retinal scans, and even social-media passwords.
What’s true for banking and tourism is doubly true for free speech. Social media has given everyone not just a platform but a megaphone (as unreadable as our Facebook timelines have all become since last November). At the same time, the federal government during this unhappy 21st century has continuously ratcheted up prosecutorial pressure against leakers, whistleblowers, investigative reporters, and technology companies.
A hopeful bulwark against government encroachment unique to the free-speech field is the Supreme Court’s very strong First Amendment jurisprudence in the past decade or two. Donald Trump, like Hillary Clinton before him, may prattle on about locking up flag-burners, but Antonin Scalia and the rest of SCOTUS protected such expression back in 1990. Barack Obama and John McCain (and Hillary Clinton—she’s as bad as any recent national politician on free speech) may lament the Citizens United decision, but it’s now firmly legal to broadcast unfriendly documentaries about politicians without fear of punishment, no matter the electoral calendar.
But in this very strength lies what might be the First Amendment’s most worrying vulnerability. Barry Friedman, in his 2009 book The Will of the People, made the persuasive argument that the Supreme Court typically ratifies, post facto, where public opinion has already shifted. Today’s culture of free speech could be tomorrow’s legal framework. If so, we’re in trouble.
For evidence of free-speech slippage, just read around you. When both major-party presidential nominees react to terrorist attacks by calling to shut down corners of the Internet, and when their respective supporters are actually debating the propriety of sucker punching protesters they disagree with, it’s hard to escape the conclusion that our increasingly shrill partisan sorting is turning the very foundation of post-1800 global prosperity into just another club to be swung in our national street fight.
In the eternal cat-and-mouse game between private initiative and government control, the former is always advantaged by the latter’s fundamental incompetence. But what if the public willingly hands government the power to muzzle? It may take a counter-cultural reformation to protect this most noble of American experiments.
Matt Welch is the editor at large of Reason.
Adam. J. WhiteFree speech is indeed under threat on our university campuses, but the threat did not begin there and it will not end there. Rather, the campus free-speech crisis is a particularly visible symptom of a much more fundamental crisis in American culture.
The problem is not that some students, teachers, and administrators reject traditional American values and institutions, or even that they are willing to menace or censor others who defend those values and institutions. Such critics have always existed, and they can be expected to use the tools and weapons at their disposal. The problem is that our country seems to produce too few students, teachers, and administrators who are willing or able to respond to them.
American families produce children who arrive on campus unprepared for, or uninterested in, defending our values and institutions. For our students who are focused primarily on their career prospects (if on anything at all), “[c]ollege is just one step on the continual stairway of advancement,” as David Brooks observed 16 years ago. “They’re not trying to buck the system; they’re trying to climb it, and they are streamlined for ascent. Hence they are not a disputatious group.”
Meanwhile, parents bear incomprehensible financial burdens to get their kids through college, without a clear sense of precisely what their kids will get out of these institutions in terms of character formation or civic virtue. With so much money at stake, few can afford for their kids to pursue more than career prospects.
Those problems are not created on campus, but they are exacerbated there, as too few college professors and administrators see their institutions as cultivators of American culture and republicanism. Confronted with activists’ rage, they offer no competing vision of higher education—let alone a compelling one.
Ironically, we might borrow a solution from the Left. Where progressives would leverage state power in service of their health-care agenda, we could do the same for education. State legislatures and governors, recognizing the present crisis, should begin to reform and renegotiate the fundamental nature of state universities. By making state universities more affordable, more productive, and more reflective of mainstream American values, they will attract students—and create incentives for competing private universities to follow suit.
Let’s hope they do it soon, for what’s at stake is much more than just free speech on campus, or even free speech writ large. In our time, as in Tocqueville’s, “the instruction of the people powerfully contributes to the support of a democratic republic,” especially “where instruction which awakens the understanding is not separated from moral education which amends the heart.” We need our colleges to cultivate—not cut down—civic virtue and our capacity for self-government. “Republican government presupposes the existence of these qualities in a higher degree than any other form,” Madison wrote in Federalist 55. If “there is not sufficient virtue among men for self-government,” then “nothing less than the chains of despotism” can restrain us “from destroying and devouring one another.”
Adam J. White is a research fellow at the Hoover Institution.
Cathy YoungA writer gets expelled from the World Science Fiction Convention for criticizing the sci-fi community’s preoccupation with racial and gender “inclusivity” while moderating a panel. An assault on free speech, or an exercise of free association? How about when students demand the disinvitation of a speaker—or disrupt the speech? When a critic of feminism gets banned from a social-media platform for unspecified “abuse”?
Such questions are at the heart of many recent free-speech controversies. There is no censorship by government; but how concerned should we be when private actors effectively suppress unpopular speech? Even in the freest society, some speech will—and should—be considered odious and banished to unsavory fringes. No one weeps for ostracized Holocaust deniers or pedophilia apologists.
But shunned speech needs to remain a narrow exception—or acceptable speech will inexorably shrink. As current Federal Communications Commission chairman Ajit Pai cautioned last year, First Amendment protections will be hollowed out unless undergirded by cultural values that support a free marketplace of ideas.
Sometimes, attacks on speech come from the right. In 2003, an Iraq War critic, reporter Chris Hedges, was silenced at Rockford College in Illinois by hecklers who unplugged the microphone and rushed the stage; some conservative pundits defended this as robust protest. Yet the current climate on the left—in universities, on social media, in “progressive” journalism, in intellectual circles—is particularly hostile to free expression. The identity-politics left, fixated on subtle oppressions embedded in everyday attitudes and language, sees speech-policing as the solution.
Is hostility to free-speech values on the rise? New York magazine columnist Jesse Singal argues that support for restrictions on public speech offensive to minorities has remained steady, and fairly high, since the 1970s. Perhaps. But the range of what qualifies as offensive—and which groups are to be shielded—has expanded dramatically. In our time, a leading liberal magazine, the New Republic, can defend calls to destroy a painting of lynching victim Emmett Till because the artist is white and guilty of “cultural appropriation,” and a feminist academic journal can be bullied into apologizing for an article on transgender issues that dares to mention “male genitalia.”
There is also a distinct trend of “bad” speech being squelched by coercion, not just disapproval. That includes the incidents at Middlebury College in Vermont and at Claremont McKenna in California, where mobs not only prevented conservative speakers—Charles Murray and Heather Mac Donald—from addressing audiences but physically threatened them as well. It also includes the use of civil-rights legislation to enforce goodthink in the workplace: Businesses may face stiff fines if they don’t force employees to call a “non-binary” co-worker by the singular “they,” even when talking among themselves.
These trends make a mockery of liberalism and enable the kind of backlash we have seen with Donald Trump’s election. But the backlash can bring its own brand of authoritarianism. It’s time to start rebuilding the culture of free speech across political divisions—a project that demands, above all, genuine openness and intellectual consistency. Otherwise it will remain, as the late, great Nat Hentoff put it, a call for “free speech for me, but not for thee.”
Cathy Young is a contributing editor at Reason.
Robert J. ZimmerFree speech is not a natural feature of human society. Many people are comfortable with free expression for views they agree with but would withhold this privilege for those they deem offensive. People justify such restrictions by various means: the appeal to moral certainty, political agendas, demand for change, opposing change, retaining power, resisting authority, or, more recently, not wanting to feel uncomfortable. Moral certainty about one’s views or a willingness to indulge one’s emotions makes it easy to assert that others are doing true damage or creating unacceptable offense simply by presenting a fundamentally different perspective.
The resulting challenges to free expression may come in the form of laws, threats, pressure (whether societal, group, or organizational), or self-censorship in the face of a prevailing consensus. Specific forms of challenge may be more or less pronounced as circumstances vary. But the widespread temptation to consider the silencing of “objectionable” viewpoints as acceptable implies that the challenge to free expression is always present.
The United States today is no exception. We benefit from the First Amendment, which asserts that the government shall make no law abridging the freedom of speech. However, fostering a society supporting free expression involves matters far beyond the law. The ongoing and increasing demonization of one group by another creates a political and social environment conducive to suppressing speech. Even violent acts opposing speech can become acceptable or encouraged. Such behavior is evident at both political rallies and university events. Our greatest current threat to free expression is the emergence of a national culture that accepts the legitimacy of suppression of speech deemed objectionable by a segment of the population.
University and college campuses present a particularly vivid instance of this cultural shift. There have been many well-publicized episodes of speakers being disinvited or prevented from speaking because of their views. However, the problem is much deeper, as there is significant self-censorship on many campuses. Both faculty and students sometimes find themselves silenced by social and institutional pressures to conform to “acceptable” views. Ironically, the very mission of universities and colleges to provide a powerful and deeply enriching education for their students demands that they embrace and protect free expression and open discourse. Failing to do so significantly diminishes the quality of the education they provide.
My own institution, the University of Chicago, through the words and actions of its faculty and leaders since its founding, has asserted the importance of free expression and its essential role in embracing intellectual challenge. We continue to do so today as articulated by the Chicago Principles, which strongly affirm that “the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.” It is only in such an environment that universities can fulfill their own highest aspirations and provide leadership by demonstrating the value of free speech within society more broadly. A number of universities have joined us in reinforcing these values. But it remains to be seen whether the faculty and leaders of many institutions will truly stand up for these values, and in doing so provide a model for society as a whole.
Robert J. Zimmer is the president of the University of Chicago.