April 11, 2020
IT BEGINS WITH MISUNDERSTANDING REPUBLICAN LIBERTY:
'I Think the Protection of Liberty Is a Common Good': The Dispatch's David French on the value of liberalism and the problems with the new nationalist right (STEPHANIE SLADE, THE MAY 2020, reason)
The thing that has come to exemplify everything that's wrong with modernity for this crowd, as you well know, is Drag Queen Story Hour. Tell us what those words mean and then give me the Frenchian position on it.Drag Queen Story Hour is a small movement of drag queens and friends of drag queens who will host, in public libraries scattered around this country, small gatherings of people who will listen to a drag queen read a children's book. Children come to Drag Queen Story Hour. They see the drag queens and they interact with the drag queens. It's come to symbolize the advance of the sexual revolution and, particularly, the way that the sexual revolution touches the lives of children. So the argument that was made was that classical liberalism is inadequate to address the threat of Drag Queen Story Hour, and that Drag Queen Story Hour is the product of liberty unrestrained. This is what happens when people are given too much liberty: Drag queens read books to kids.My argument about this was really pretty simple. I don't like Drag Queen Story Hour. I would not take my children to Drag Queen Story Hour. But I don't have to go to Drag Queen Story Hour, and unless they violate anti-obscenity or indecency statutes or otherwise applicable and constitutionally appropriate laws, they enjoy all the protections of the First Amendment that everybody else enjoys. In fact, that open access to the use of public facilities has been a boon to social conservative groups like Christian organizations. There are thousands of churches that conduct worship services in empty classrooms and gymnasiums and cafeterias across this country, who have access to library facilities and other public buildings. They utilize those to say and preach and teach things that the common good conservatives would very much like and very much endorse. And you cannot have a legal system that allows the government to dictate which preferred viewpoint gets access to its facilities. If you embrace such a system, you're not going to like the outcome.The idea is that if conservatives can stop Drag Queen Story Hour from happening at the library, then why can't progressives stop--They can and will stop church services, Bible studies, Tea Party meetings, GOP gatherings. I mean, once you lift the [requirement of] viewpoint neutrality in access to public facilities, you lift it. It's gone. And you better be in charge of everything, or you're going to see your preferred viewpoint locked out of the public square.Now, that's a pragmatic response. I tend to think that liberty has independent value. A lot of [common good conservatives] think there is no independent value in liberty unless liberty is used for virtue. But I think the protection of liberty is a common good.It's true, though, that people on the left increasingly are trying to use the power of the state to impose their values on conservatives.Oh, sure.So why isn't it true that at some point you have to fight fire with fire?The fact of the matter is that we have systems in place that protect individual liberty increasingly effectively. This is something a lot of people miss. People who just started following politics recently tend to think that religious liberty is under unprecedented siege, when the reality is religious liberty has more protections right now from government interference than it has had in the last 25 years. People tend to think that free speech is under unprecedented attack, when right now people are more free from the threat of government censorship than they have been perhaps anytime in the whole history of the United States of America. There is an enormous advance of legal protection from censorship from the government over the last 25-30 years that is completely underappreciated.What we face now isn't so much the government imposing its values but private actors using the power that they have, whether financial or cultural, to try to crowd out competing voices from the public square. That would be, for example, when the Oscars doesn't let Kevin Hart be a host. That's one private entity telling a private citizen he can't host their gathering. I am concerned about the culture of censorship that exists in a lot of these private actions. But it's just a fundamentally different thing from the formal censorship that happens at the point of the government's bayonet.
Mr. French gets at why it is a fact that the Right rejects the Founding altogether and hates America as it is. The goal of the Constitution is to establish a republic in order to secure liberty; and republican liberty has a certain historical form. It is essentially the right to be free from arbitrary control by others, a right that requires a participatory government--so that all who are to be bound by laws have a say in them--and completely equal application of the limits (laws) adopted.
At various times and in various places--which accord almost precisely with which party is in power--folks have objected to all three factors implicated here: that liberty is explicitly not freedom; that lawmaking must be a democratic process; and that laws must be applied equally to all to be legitimate.
John Jay anticipated the first objection:
"Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers." (Federalist No. 2)
The text anticipated the second, putting the legislative, and most democratic, branch in Article 1. :
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
And while we struggled with the third for quite some time--driven largely by the need to buy-off the slave-holding South--the 14th Amendment made the implicit explicit:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When you wish to claim a particular freedom, which your fellow citizens overwhelmingly reject, you tend to insist that "natural rights" can not be limited by liberty.
When you can not get a proposed law passed via the democratic process you tend to claim that the Executive and/or Judicial branch has the power to legislate.
And when you either wish your group to receive special treatment or seek to punish another group, you claim that laws need not be equal.
It is obvious on its face that a private entity like the Academy can ban anyone they want from the Oscars, or Twitter from tweeting, etc., without in any way running afoul of the Republic. The attempt to impose the structure above to them is simply a non-sequitor.
But once we introduce public institutions to the equation we do bump up against the framework of republican liberty. Consider the case of Drag Queen Story Hour. In the first instance, we must ask whether the library involved is public or private. Only if public need we go further in examining the activity. If public, we would next examine whether there is an existing volunteer story hour which welcomes any group that wishes to participate, in which case there is a presumption that all such groups ought be treated equally. After all, if a library with such a program sought to ban Chinese-Americans from reading we would know something had gone wrong. On the other hand, if a public library has no such program and tells a volunteer group that proposes one that they don't care to institute, there is no equal protection problem. Finally, it will be appropriate to look at the status of the children being read to: are they required by law or by some public institution to attend? Are they school children in detention? Or is it a choice by them and their parents to attend said readings? If attendance is voluntary, it is not apparent that we need even consider the matter at all. Will not just the Right but conservative and religious Americans find the decision of libraries and parents to participate in the program to be troublesome as a moral matter? Undoubtedly. Does that, therefore, make it a matter where a Common Good jurisprudence dictates the Court intervene? Only if, as is the case, we now propose that the right adopt exactly the same sort of activist theory of the Judiciary branch that we always, correctly, objected to when the left adopted it. When the interlocutor above asks if we don't need to fight fire with fire it is the republican Constitutional order that we are talking about burning down. And while Right and Left have ample reason for such nihilism--since they hate the America we live in--it is no reason for believers in well-ordered liberty and lovers of the American Republic to join in the bonfire.
Posted by Orrin Judd at April 11, 2020 7:50 AM