When Tocqueville toured America he observed that the New England Town Hall was the nursery of democracy. This direct participation in democratic life prepared citizens not only to exercise their votes responsibly, but to engage in the deliberative processes that determined the contours of their lives. It disciplined their inclinations and interests. Tocqueville’s observations draw our attention to the scale of democratic life: the near-at-hand should always command more of our attention and our allegiance than the distant. When some far-off place becomes the seat of power, and if those running it overwhelm the acts of citizens participating in local governance—if indeed power displaces those of us who voted these representatives into those distant seats in the first place—then voting, along with paying taxes, becomes not only the preeminent act of citizenship but the sole one. In other words, voting then compromises citizenship, if not destroys it altogether.

Worse yet: when power is distant, as in our day it is, then we can’t possibly know our representatives except in mediated form: through corporately-owned news sources and campaign ads, both of which are mendacious and untrustworthy. This is as much to say that we cannot know our representatives at all, and this problem intensifies at the presidential level, where our ignorance and intensity completely diverge. At its nadir it results in anti-votes: I don’t like either candidate, but I will vote against the one I dislike most.

We no longer operate democratically if by “democracy” we understand people having some sort of direct say in and control of the decisions that affect their lives. The central role of speech in democratic life refers to our ability to voice our preferences and have that voice be recognized and respected, which means in turn that our voices are heard and not drowned out in the roars of mass democracy.

One important paradox of our current politics results from the fact that we consider our votes important precisely at the time they have become devalued. This claim may seem controversial to readers, many of whom may recall the just and noble struggle for the franchise that defined previous ages. I am not arguing against voting, I am rather arguing against the various forces that have led to its devaluation, including our tendency to think that by having voted we have performed the ultimate act of civic duty rather than a minimal one.

What sorts of factors devalue the vote? One is when we make decisions based on imperfect or distorted information. Political campaigns are essentially exercises in sophistry, and the pervasive negativity and lying of campaigns undermine public confidence not only in the results but in the resulting structures of governance. Why should we trust “experts” when they tell us elections are safe and secure (which I believe they are) when they are wrong about so much else? Why should we believe that someone will work cooperatively with the other party when that person just spent the last year calling his or her opponent alternately a fascist or a communist? Why should we expect someone who approves ads full of smears and lies to be suddenly trustworthy once the election concludes?

Another way to devalue the vote is to offer people meaningless choices. There are different ways of accomplishing this. Having candidates who so closely resemble each other that voters conclude “there isn’t a dime’s worth of difference” between them will lead voters, reasonably, to opt out of the process. Or, if people perceive actors behind the scenes actually run things, and the candidate is merely a puppet of those hidden forces, then voters might decide they don’t want to play charades. Or, if people are presented with a stark choice but regard both candidates as more or less equally objectionable, they might still vote but not feel good about it and hold their nose while they do it. In this, yet another “most important election of our lifetime,” we have two candidates neither of whom the majority of Americans view favorably. What does that do to our sense of connection to the whole system, other than make us think that somehow the thing is rigged against our interests?

The Antifederalists understood this problem well, for they thought voting mattered when we voted for people we knew and held in high esteem. Only by having engaged citizens in all other areas of life could elected officials show themselves worthy of our trust. As importantly, only if representatives would reconnect with those citizens by returning to the places they represented (for they don’t represent only people) could the people remain confident that what mattered to them, mattered. Our system is in crisis mainly because government officials, both elected and non-elected, do not share in the fate and (mis)fortunes of those over whom they govern; and those people in turn, reasonably, assume that those who govern don’t really care.

We also devalue the vote when we treat all ballots as if they are equal, especially a problem in a system that values secret ballots. Not everyone who votes is equally well-informed, equally committed to the public good, equally contributing to public life in other ways, or driven by an equally significant set of interests. The fact that bad citizens can cancel the vote of the ideal citizen casts some doubt on the intelligence of the whole system. It upholds the principle of equality before the law, but at a price. Because bad voters water down the votes of good voters, Jason Brennan in his The Ethics of Voting argued we have a moral obligation not to encourage ill-informed or narrowly interested people to vote. A low-voter turnout rate may be the salutary consequence of such deterrence. Indeed, it may even signal moral rectitude for those who opt-out. This deficit of knowing results from an inability of people in our complex and hypermobile system to attend to one another, distracted as we are by space and gadgets.

We haven’t yet touched on the most significant means for devaluing the vote, which is the way we devalue anything: by making more of it. The math is pretty simple. If I am one of three votes, my vote carries a lot of weight. For every person I add to the deliberation, I diminish the value of my vote in the process. Dennis Mueller, a leading advocate of public choice theory, observed that you have an equal chance of being run over by a car on the way to the poll as your vote is the decisive one in a presidential election. So unless your candidate’s losing is a bigger issue to you than being killed by a car, it makes no rational sense to vote.

The essence of citizenship is not voting but participation—voting is but one mode of participation. Neighbors working shoulder to shoulder building and maintaining parks and playgrounds, making their streets safe, running their local schools, lending a helping hand to the disadvantaged, responding to each other’s needs in emergencies, watching out for one another’s children, caring for their little corner of the world as if those places mattered, which they do—these are the essential practices of citizenship because they’re moral practices. Good citizens realize that their obligations don’t resolve in delegating political or social agency to someone else, especially if, as in our Constitutional system, one assumes that agents will seldom act in the principal’s best interests. This problem worsens when we consider that we often choose between deputized agents we don’t know and, more importantly, can’t trust. So how is delegating our authority to such persons a moral act?

All this relates to the republican argument that democratic practices do not scale well. Citizens are connected to the federal government on their end by the thin and fragile thread of voting, but the central government covers citizens’ lives with a thick web of often indiscernible and unintelligible rules and regulations. This asymmetry is a central problem of our so-called democracy. What does it say when only 15-27 percent of citizens will vote in local elections, where their vote has the most mathematical weight and they vote on the issues of greatest importance to them, while 70 percent of them will cast a vote for a person they don’t know to run a sprawling bureaucracy they don’t understand? Is this what we would expect in a healthy democracy? If part of the justification for voting is that it creates accountability, why do we have a powerful centralized administrative state that is neither transparent nor responsive to the will of voters?

None of this is an argument for not voting; rather, it is an argument for voting from the bottom of the ballot up. Seeing and paying attention to things immediately visible and then and only then casting our vision to the horizon is not only good sense, it is how we are built. Our sight fades at a distance, objects become blurred and indistinct. Only by paying attention to the near-at-hand does the relationship between voting and citizenship become clear, that we are to attend to the concerns of our community and one another fully and completely and attentively, and not only in November, and not by designating someone else to act on our behalf.

The post Democracy From the Bottom Up appeared first on Law & Liberty.

Editor’s Note: This is part of Law & Liberty‘s series of Faultline Essays, in which authors offer different perspectives on a given topic and respond to one another. Alexander Salter and Jeffrey Polet reflect on the relevance of the 1984 collection Freedom and Virtue for the current debate over conservatism and liberty.

Ever since John Stuart Mill dismissed conservatives as architects of “the stupid party,” we have had to deal with sneering dismissal by progressives. As bad as that is, there is our own inability to create a coherent and unified movement. One would think that in the face of the progressive rout of conservatism we would be more intent on highlighting our agreements than our disagreements.

Conservatives have never been united enough to be any kind of party. The factions coalesced around opposition to leftist ideology, but otherwise demonstrated disagreements. After the end of the Cold War, the paleo-cons, neo-cons, libertarians, religious conservatives, and other groups had turned on each other. The fissures in the movement were fully revealed with the invasion of Iraq.

We live in a similar moment. As progressives took control of our most important institutions and used that control to promulgate and impose a radical ideology, conservatives continued their crack-up. One of the central conservative principles that had united the movement from 1932 on—suspicion of federal bureaucratic power and the concomitant defense of the federalist principle—has given way to a new and aggressive national conservatism. Even as conservatives defended many of the principles of classical liberalism, with its emphasis on limited government and freedom of conscience, post-liberals began to arise within their midst. Many of the early writers for National Review, First Things, and other conservative outlets were Catholics taking up John Courtney Murray’s project of reconciling Catholicism to the American project. Against that effort has risen the new tide of integralism.

On the other hand, many libertarians seem perfectly comfortable with the reconstitution of familial and social life that conservatives regard as vital to a well-ordered society. Old-time conservatives of the Russell Kirk variety, to the degree they are taken seriously, seem to be on the margins of the movement. Alexander Salter shrewdly reviews the Meyer-Bozell debate as a forerunner to some of these current debates; as I make clear below, I am closer to Bozell than I am to Meyer.

All the while, the culture wars have only intensified. But this time around, the conflicts are taking place after the hollowing out of America’s middle class and its attendant bourgeois virtues. These bourgeois virtues were instrumental in holding the nation together and provided the foundation upon which America’s impressive economic and political achievements found their footing. These virtues are very different from those meant for “signaling.” Those so-called virtues—compassion, inclusion, sensitivity, empathy—are abstract and sentimental in nature and require very little of us; the bourgeois virtues—hard work, frugality, self-restraint, self-reliance—are concrete and active in nature and require sacrifice from us.

George Carey’s 1984 collection Freedom and Virtue: The Conservative/Libertarian Debate still speaks to our moment. Re-reading those essays now impresses on the reader the overlap between the libertarian and conservative positions, and subsequent events make the libertarian position both more and less attractive than it was then. On the one hand, given the coercion taking place in and by many of our institutions, the fundamental impulse of the libertarian to resist all coercion seems admirable and, Salter argues, necessary. Reading Salter’s fine essay almost convinced me that I’m a fusionist, but only if one keeps in mind that fusionism, as Meyer understood it, requires a grounding in moral theories and conceptions of the person that differs widely from libertarian assumptions. It’s hard to fuse your views with those that you believe are wrong in their essentials.

The left had long defended its most radical social changes with two claims: it’s not hurting anyone, and it won’t affect you. The first is contestable—the debate over which has long been the issue between libertarians and conservatives—and the second is now proven to be a lie. What is tolerated often becomes prescribed. Conservatives consider the libertarian embrace of the harm principle as little different from progressive reformers, and libertarians regard the conservative suspicion of the harm principle as making them likely to embrace progressive coercion. Can there be a new kind of fusionism that will allow America’s non-progressive core, which still makes up the majority of Americans, to unite in their opposition to the obvious overreach of the left? I think that Salter is right when he says “a neat, rationalistic ‘solution’ is unnecessary,” but I’m not as convinced that fusionism “just is the American Tradition,” even as he rightly emphasizes the dialectic between freedom and order.

Some conservatives have indeed become too comfortable with embracing the coercive power of the state with the intent of shaping citizens to a particular notion of what is good. To this tendency, I think, libertarian skepticism seems well placed. One can be, like Socrates, an epistemological skeptic without being a metaphysical one. To the degree that libertarians are metaphysical skeptics, their thinking will be of little value to conservatives—the charge of relativism being consistently leveled by conservatives in the Carey collection. Nor will conservatives get anywhere by aping the Progressive obsession with power, as Salter indicates.

The main conservative criticism of libertarianism is that libertarianism is too abstract and too rationalistic. Conservatives don’t particularly care for rational-choice theory because it doesn’t accurately reflect what we are as human beings. We don’t like objectivism because we find it immoral. We don’t like the formal emphasis on choice because it brackets the ends. We agree with Bozell that there must be a higher principle for politics than free choice. We don’t like libertarian individualism because it doesn’t sufficiently account for the role of community and mediating institutions in human flourishing.

Another way to say this is that while libertarians tend toward a more formal and individualized consideration of decision-making, conservatives are equally concerned about the social ecology. We are concerned both about what ends are chosen and about the context within which choosing takes place—what Richard Weaver referred to as an “antecedent morality.” This is so for two reasons. First of all, conservatives disagree with libertarians over their idea of human nature. Tibor Machan wrote that “when conservatives claim that man has a ‘proclivity toward violence and sin,’ the libertarian would have to object.” The conservative would eagerly provide an abundance of historical evidence for the claim. In other words, we cannot share in the libertarian’s optimism either about individual choosers in particular or about human beings in general. After all, “What is government itself but the greatest of all reflections on human nature?”

Secondly, this difference will result in competing understandings of government. Thus the conservative will not endorse the libertarian “night watchman” view of government in part because the conservative believes that one cannot eliminate government coercion (the libertarian writers in the Carey volume are strangely silent about taxation and conscription), in part because the conservative believes that all government policies involve some sort of moral deliberation, and in part, because the conservative believes that republican government has an interest in the formation of good citizens.

The conservative is therefore more likely to endorse our constitutional system. We have long been familiar with progressive frustration with our constitutional traditions, but traditional conservatism is now pinched between a libertarian wing that seeks to make government small enough that it can drown it in a bathtub, and an integralist/nationalist wing that would happily reject the Constitution as a relic of a discredited liberalism. The conservative tradition I mean to defend seeks to avoid both extremes. As Salter points out, “there’s no other game in town,” and the constitutionalism he defends is very much in the spirit of Orestes Brownson, public engagement with whom might benefit “post-liberalism.”

Furthermore, it defends a Constitution that, as Madison said in Federalist #57, assumes virtue “to a higher degree than any other.” The main libertarian mistake is assuming that virtue cannot be virtuous, or cannot partake of virtue, if it is at all coerced. The conservative assumes that it is better to do the right thing for the wrong reasons than it is to do the wrong thing for the right reasons.

Conservatives thus believe that libertarianism doesn’t give a full enough accounting of virtue. Any act of virtue has at least two parties: the one performing the act, and the one who is the recipient of the act. Virtue doesn’t operate in the abstract but only relationally (which is why Salter rightly uses the word “person” rather than “individual”). The object of the act is typically indifferent to the motives of the subject; for him, what matters most is that the right thing is done. Any act of virtue must strive diligently to preserve the dignity of the recipient, which is why reciprocity matters. But not only reciprocity—for our act to be actually virtuous we have to know something about the person upon whom the act is being visited. Without such intimate knowledge, our efforts could soon fall into error. Attention to the recipient creates the proper scale of action, for only then can we see the full range of the effects of our actions, learn from them, and do better in the future.

In addition to the parties of the act, there is the act itself. This act consists of at least three parts: the good at which it is aimed, the means chosen for achieving that good, and the intention of the person engaged in so choosing. Of those three, the first is the most important and the last is the least important, although a fully virtuous act will satisfy the requirements of all three. That’s a high bar, and most of us fail at some level on all three counts.

Libertarians rightly draw our attention to confusion about ends. The authors in the Carey volume highlight a real-world problem: namely, we see through a glass darkly. For this reason, libertarians, when discussing the idea of a common good, will raise the sensible question of who is going to be in charge of defining and implementing it. Any self-proclaimed guardian of the common good probably can’t be trusted with its implied powers. However, referring back to Plato, without a class to the manner born, an aristocracy will soon devolve into an oligarchy, and if that, then power will be distributed on the basis of wealth alone. The suspicion of hereditary rule as well as our confidence in the ability of markets to “sort out” the population means the libertarian impulses more nearly fit our oligarchic age than the aristocratic instincts of conservatives. This aristocratic urge has always been an uncomfortable fit in American democracy, as demonstrated by thinkers such as John Adams and Alexis de Tocqueville, as well as Russell Kirk.

Confusion about ends not only results from the limitations of the chooser, but from the ends themselves. We do not typically choose between good and evil but between competing goods (or sometimes lesser evils), and for that reason the tragic is always part of the human condition. That said, we are not helpless in the task, for experience brings wisdom; and, as Burke noted, while the individual is foolish, the species is wise. For that reason, conservatives are skeptical of Mill’s effort to replace tradition and social approbation with the harm principle. As much as I liked Salter’s essay, I find myself wishing he had discussed the centrality of the harm principle.

If confusion about the good perplexes, clarity about the proper means bedevils further. Sometimes we have to choose questionable means. None of us can fully anticipate the range of effects that any of our actions will have. Usually, in life, we don’t know exactly what the right thing to do is, even if we know what outcome we desire. Consider happening upon a homeless person: we believe it is not a good thing for a person to starve, and if we can prevent or ameliorate that person’s condition, then we have an obligation to do so. Are sins of omission even “harms” in the libertarian lexicon? Now we must deliberate: what is the best means to achieving that end? Do we support a government program with our votes? Do we contribute to non-profits that seek to feed the hungry? Do we take that person out to dinner? Do we buy that person a sandwich? Do we simply drop a buck in their cup? The answer to that is not clear, although we suspect that the action won’t be fully moral if we have chosen the easiest way out.

Nor should it be the case that we choose the means that enable us to feel best about ourselves. The end of the moral action becomes obscured if our purpose is to make others think we are a good person, simply to become self-satisfied. This fact indicates that there are distinctions to be made when it comes to the intention behind an act. Here, too, we are dealing with knowledge deficits, for we have an infinite capacity for self-deception. We don’t always know why we do what we do, and it would be atypical for our motives to be pure and of one piece.

We thus need guidance when it comes to engaging in virtue. How we learn virtue is a question of enormous personal import, just as how we form virtuous citizens is a question of significant political import. Aristotle identified a number of means by which virtue is learned, but did not neglect to mention the role of the law in doing so. But here, Salter offers a significant challenge. “It comes down to this: Can the state, through its police powers, promote ethical habits by taking bad options off the table? While conceptually possible, I do not see why this is at all likely.”

I understand his skepticism, especially in an age of progressive ascendancy, rampant incompetence, increased cronyism, and the stench of corruption. There doesn’t seem to be much the federal government does right, especially since its supervision of our public schools, the most aggressive effort at character formation, has failed miserably. Critics of government efforts like to point to prohibition as their test case, as does Salter, but often fail to consider federal direction of civil rights reform.

As a defender of localism, I’m inclined to agree that “our Constitutional architecture thus allows for a political virtue gradient: The national government focuses on freedom, whereas state and local governments take the responsibility for more substantive goods, to the extent citizens demand them. The closer the citizen is to his government, the more he can go in for a politics of virtue.” But the argument for federalism is not primarily an argument either for or of virtue. Local governments are capable of being every bit as corrupt and vicious as any federal government. It is, as Salter says, an argument for exit and voice. I’m not sure about his inclusion of “loyalty” since, as Publius argues, time will alter loyalties toward the national government; and in any case, exit and loyalty do not pair up well with each other. 

With regard to the operation of virtue, Aristotle stressed the importance of habit, an idea that Sartre found so objectionable that he accepted freedom as a condemnation. I think libertarianism partakes too much of this error in stressing that an act can only be authentic if it is freely and knowingly chosen; and that, furthermore, authenticity is the thing that matters most.

What actually matters most is that the right thing be done, even though how it is done also matters. In an ideal universe, choice of means, the good to be accomplished, concern for the well-being of the other, and good intention work seamlessly. Good intentions by themselves count for little—the road to hell is paved with them. But the libertarian would have you believe that intention is what matters most so long as it is free.

Nor does the focus on intention help us deal with the problem of social ecology. Well-intended decisions can introduce toxic elements into our shared social spaces. Take, for example, the libertarian defense of pornography as a personal choice that is victimless, and therefore licit. Spend some time on a college campus and talk with the bright and attractive young women who can’t get addled young men to ask them out on a date because those men are too busy pleasuring themselves in front of computer screens and tell those women that pornography affects only the viewer.

Look at the billboards on any highway in Michigan and you would assume that every Michigander is sitting in his parents’ basement smoking marijuana and gambling online. These persons are not functioning contributors to society, and they are also failing to develop their potential as persons. The law responds to this in its two-fold function: it is both proscriptive and prescriptive. It will always tell us something about what we expect human beings to be by prohibiting some behaviors and encouraging others. The libertarian might not like good Samaritan laws because they’re too coercive, but others will recognize them as an important indicator of the solicitude we are expected to extend to others. John Hospers in his essay indicated he might allow for them, and such a concession introduces the idea of prudence into the use of coercive power and thus mitigates libertarianism’s central claim.

The conservative is more suspicious of political absolutes than he is of moral ones, while the libertarian seems more suspicious of moral absolutes than he does of political ones. If any new fusionism emerges, it can only do so on the basis of respect for the individual person, protecting both the promise inherent in allowing that person to choose freely, and the dignity inherent in choosing well. Salter and I agree on the fundamental importance of the person to any morally compelling system of political thinking, and that this emphasis itself results from our Western and Christian heritage. Reading his essay, I was struck by how similar his final paragraph was to my own, the essence of which is to find that sweet spot in the tension between being free to choose and choosing well or poorly. To the degree that fusionism, as Salter defends it, means sustaining the tension rather than resolving it, his version of fusionism indeed “remains indispensable for liberty under law in America.”

Its application requires political prudence, and that prudence will manifest itself by weighing carefully the harm caused by restricting the right to choose against that caused by allowing people to choose badly. Unlike Mill, who saw social mores as more destructive of liberty than government action, the conservative defends the importance of those mores and their restrictive application in communal life, as well as their constant reevaluation by subsequent generations.

The post The Puzzle of Political Virtue appeared first on Law & Liberty.

One can say with almost complete confidence that one thing most of the critics have in common is that they didn’t actually read the law. Georgia law SB202 has become a game of telephone. Reviewing articles at the Times about the law reveals that the Times links to other articles they’ve written about the law, but not to the law itself. SB202 is a piece of writing, like the Constitution or the Bible, about which everyone has an opinion but few have actually read.

For the record, I have read the Georgia law because I try to commit myself to two fundamental principles of interpretation: not to have interpretive judgments concerning things I haven’t read, and not to assume the trustworthiness of others’ interpretations. How could we possibly know if someone’s interpretation is valid unless we can hold it up against our own reading of the document itself? Others may help illuminate the text, open up its meaning, and draw attention to things we’ve overlooked or our own errors, but only in a dialectic with our own reading. They may also willfully misread the text, bring in a set of ideological or partisan preferences that distort its meaning, exaggerate its errors while overlooking its virtues, or otherwise lead us astray. Indeed, they may willfully misread for purposes of defeating enemies and advancing their own power.

Some years ago in my Modern Political Thought class, as we were discussing The Prince, I had a student pontificating on Machiavelli’s immoralism. After he went on for a few minutes I looked at him and said “You didn’t actually read the book, did you?” Sheepishly, he admitted he hadn’t. “Well then,” I replied, “I really don’t care what you think.” I had long told my students that their first obligation as readers was to understand the text and only afterward to render judgments on it. But I saw then that I had misspoken; our first obligation as readers was to—you know—actually read.

It would be unthinkable to try to teach a book one hasn’t read. Professors can spot quickly the students who have read the assigned reading and those who haven’t. Most people have enough self-awareness not to have opinions about movies or books they haven’t read; or, if they do, to qualify such opinions by saying “I’ve heard it’s great” or “I’ve heard it sucks.”

Only in politics, it seems, are we not only allowed but encouraged to have opinions concerning things of which we have no direct knowledge. Indeed, the more mediated our knowledge is, the stronger are our opinions. Often we compensate for ignorance with passion. This state of affairs is contrary to a democratic ethos and can only result in a furthering and deepening of our divisions.

Aquinas noted that the law is the rule of reason promulgated by a legitimate authority, so that when law is not properly disseminated and explained, it loses its legitimacy. There are different ways of obscuring such promulgation. The laws can be written so technically and abstrusely that no normal citizen could be expected to comprehend them. The number of laws can be proliferated so that it’s simply impossible to keep up with them all. The makers of the law can become so distant from those under the law’s sway that the latter lose all track of what’s happening to them. Walter Lippmann described democratic citizens as deaf spectators in the back of a theater who had a vague sense of what’s going on, but could never really make sense of it all. They felt their lives to be at the mercy of forces they could neither sense nor control.

The failure to promulgate the laws properly is a serious problem in a democratic culture, particularly a democracy on our scale. Justice Thomas once said a sharecropper had a right to know what his Constitution meant, and that Justices were obligated to explicate in a way that such a person could understand. Where citizens can’t be reasonably expected to know or understand the law, they can’t be reasonably expected to obey it; and where legislators or bureaucrats write laws no one reads, the rulemakers cease to be accountable. The gap between lawmakers and citizens gets filled by a medium, by the media, with the result that democracy becomes dependent on a trustworthy media as it performs this crucial function.

No serious person in our current world could claim that the media are worthy of our trust. We expect politicians both to pass and interpret laws in a way that benefits their political and partisan interests. Does the Georgia law serve the electoral interests of the Republicans in the Georgia legislature that passed it? You’d have to be naive not to think so. Does the hyperbolic hysteria among the Democrats result from their electoral interests? Again, you’d have to be naive not to think so. This is basic politics and is neither unexceptional nor particularly alarming, despite some people being shocked—shocked!—to find politics going on here.

But one would hope that somewhere in the mix someone might actually read the law and do so in a fair-minded and honest way. Such hopes go unfulfilled. Most commentators, Ryan Cooper being an example, are thrice removed from this task. He’s interpreting the New York Times’ interpretation of the New York Times’ reporting of the law. And that reporting, everyone knows, not only consistently advances the interests of a particular party, but also places everything in the context of race.

One fundamental principle of representative government is that most people are too busy living their lives to bother themselves with the daily operations of government. Moreover, in our federalist system, we are to concern ourselves primarily with the laws of our own state. The controversy over the Georgia law is not simply a matter of legal hermeneutics, but reveals a central crisis of both the republican and the federalist principles. To what degree should Georgia’s voter laws be of concern to anyone not living in Georgia? To whom are the Georgia legislators accountable? What’s the relationship between legislative acts and the public who votes in those legislators? Does Major League Baseball have a legitimate interest at stake? How does the relationship between voters and rulers get distorted when the interpretive medium is occupied by bad-faith corporate actors motivated by ideology or profit? Indeed, the corporations demonstrated a callous disregard for how their actions would affect the average voter. Instead, they either served an ideological interest or attempted to indulge the caterwauling of a distinct group of elites trying to maximize their power. Have we reached the point Lippmann identified, predicted, and bemoaned some 90 years ago of not having a functioning public at all?

I write neither to defend nor disparage the Georgia law. I’ll do that in a different essay. I write because the Georgia law is not the crisis; rather, the controversy over it points to the deeper, underlying crisis of republicanism and federalism. This crisis does not admit of easy fixes. How we respond to the Georgia statute might point the way to a restoration not only of republican and federalist principles, but the rule of law itself. Public and private actors might want to begin with a simple hermeneutical rule: never have a political opinion about a law you haven’t read. And then they might want to supplement that with a political rule: don’t get riled up by something that doesn’t concern you. Plato identified polypragmosyne (busy about many things, or a species of not minding your own business) as a form of injustice. We’d all be better off if federal officials, celebrities, pundits, and corporations stopped meddling in Georgia’s affairs. Indeed, we’d be much better off still if they stopped using race so cynically and stopped putting forth specious interpretations to advance their own ends. We might even deaden their echo chambers. “You didn’t actually read the law, did you Mr. Cooper? Well then, I really don’t care what you think.”

The post Does Anyone Read the Law? appeared first on Law & Liberty.

In law and theory, “equity” refers to fairness and impartiality and was instituted under the common law by “equity courts,” whose job it was to provide legal remedies to specific cases where legal remedies were not extant or sufficient; as in, for example, a trademark infringement where simply awarding monetary damages wouldn’t be sufficient remedy but had to be accompanied by a cease-and-desist order. It didn’t operate according to strict legal rules or codes and it allowed flexibility in the application of principles of justice. It could not operate if it presumed guilt or innocence in advance by virtue of membership in a specific class. To go back to the trademark example, one can’t assume that just because the defendant is Asian that a trademark violation occurred. Furthermore, “equity” in its most common usage refers to “ownership,” a concept that seems to have little relationship to its academic usage.

A License to Remedy

Unlike “equality,” “equity” typically provides injunctions to act or not act in a particular manner. Put another way, it allows a plaintiff to compel action from those against whom the claim is made. It attempts to provide restitution for irreparable harms resulting from injurious acts. By demanding “equity” of citizens or workers their roles are redefined to “fix” “inequities” with the assumption that those so charged have either injured someone else or have been unjustly enriched. There is a claim of implicit guilt that must be rectified through compulsion to act, to bring relief to unjust situations outside the normal rule of law.

Equity courts had the power to operate where the law was vague or inadequate, remedying what the court considered an injustice. This could involve, for example, a surrendering of wealth unjustly acquired or prevention of unjust enrichment, and by extension to correct unjust impoverishment. This power was potentially so expansive that Jefferson sought restrictions that would provide strict rules for remedial actions and preserve impartiality against the tendency to administer justice according to the whims and interests of those in power. Setting judges free from the text of the common law and giving them “pretorian discretion” to “wander into its equity” renders “the whole legal system” uncertain. Unleashing the power of equity from the general rule of law, in both its substance and procedure, would be to unleash “a monster whose existence should not be suffered one moment in a free country wherein every power is dangerous which is not bound up by general rules.”

Likewise, Hamilton noted in Federalist 83 that equity courts should operate only in “extraordinary” cases that deal with exceptions. Equitable relief could only be sought in circumstances where strict application of the law would lead to a result contrary to the intent of the law. Most thinkers at the time of the framing of the U.S. Constitution were concerned that the power of equity would be too easily abused and sought to put strict limits on it. What would never have been possible, of course, would be to use the power of equity in situations where one’s own interests were at stake, no person being a judge in his own case being a central tenet of liberal theory.

In our contemporary context the use of the power of equity, particularly when imposed by the ideologues who control offices of equity enforcement, seems to justify Jefferson’s concerns. By compelling remedies not for particular cases or problems but instead for systemic ones, and assigning guilt and innocence by classification (guilt demonstrated through the use of mandatory but tendentious “implicit bias” training programs), modern equity transforms the role of citizens, faculty members, workers, employees and so forth from their defined roles to the role of social reformer, and administers justice abstractly rather than for concrete circumstances. “White privilege” and “black victimization” are classifications that distort the operations of equity, which as mentioned should not be applied to groups. Which inequities will they be expected to repair, how will they do this, and who will make such determinations? How did this change in language, meaning, and action come to be?

One of the most compelling scenes in Robert Penn Warren’s All the King’s Men occurs when Anne Stanton pleads with Jack Burden to convince her brother Adam to take a political appointment offered by Willie Stark, the populist governor of the state. Until that point, she has been unsuccessful in persuading her brother, but Jack informs her he has the means to do so. “How?” she asks. “It’s easy,” he replies, “I’ll change the picture in his head.”

Trading in Imagery

Politics, we know, and as Warren knew, has little to do with rational arguments. It peddles in the pictures people have in their heads. Success in politics has more to do with appeals to imagination than to reason, which is why images play such an important role in our politics. As a result, contemporary political discussions largely revolve around anecdotes (although, as John McWhorter observed, when the Right tells stories they’re anecdotes and when the Left tells stories it’s critical theory).

The academy provides no redoubt against the manipulation of stories and images in favor of rational argumentation. The proliferation of images and stories has become the standard stock of faculty in “critical studies” programs, to the point where “auto-ethnography“ is now an acceptable method for published research. The reach of critical theory is especially prominent in student life divisions, particularly Centers for Diversity and Inclusion. Student life is populated by half-educated people with full access to students, whom they encourage to view every encounter through “the lens” of bigotry. They goad presumptive victims to tell their stories of oppression. Upper-class white students get to expiate their guilt through public acts of contrition such as protesting in the streets.

The credibility afforded to stories poses its own problem because it almost necessarily engages us in subjective issues of identity and claims of “my truth.” But the unwillingness to assess images is another problem altogether. One of the most prominent images in use today involves helping us “understand” the difference between equality and equity, or differing conceptions of what’s involved in justice.

The image has become nearly universal on college campuses, the same campuses that are now doubling-down on their “anti-racism” in the wake of the death of George Floyd. The image apparently goes back to 2012 and the artistry of Craig Froehle, a business professor at the University of Cincinnati. He claims he designed it to demonstrate to a conservative friend why “equality of opportunity” is an inadequate standard of justice. The image has gone through multiple iterations, but the concept has stayed the same. I refer to the version above.

There are five actors or agents in the image, three immediately identifiable and two intended to remain hidden. The most noticeable figures are the three characters of differing height standing outside the fence. The fence is an essential part of the image because it is presented to us as a barrier to the enjoyment of what are demonstrably free riders. (For the record, Froehle has dismissed the free rider argument as beside the point). We are to regard the fence as an arbitrary exercise of power designed to exclude persons from enjoying the game. It is systemic discrimination. The builders of fences are one of the “hidden figures” in the picture, and we are to regard them as villains in this story. Building fences, the picture implies, protects privilege, destroys opportunity, and disrupts the comity of social life. (Subsequent iterations of the image show the third panel with the fence removed altogether.)

But such is neither the intention nor the primary effect of fences in baseball. The fence defines the field of play. It frames the field and establishes the limits that make the playing of the game both possible and artistic. A fence makes a home run clear and definable. It defines the spaces the outfielders must cover. It helps enframe the possibilities inherent in any hit to the outfield. Granted a fence is not necessary to play ball—many of us grew up playing on fields without fences—but it enhances the experience. There are few feelings better than hitting a ball over the fence, or jumping over a fence to rob someone of a homerun. Art cannot happen without defined limits; just as a painting needs a frame, so a ballpark needs a fence.

The fence is also related to a second group we observe: the fans in the stands. They have, presumably, paid for the “privilege” of attending the game. Without them the players don’t get paid, and we don’t witness athletic beauty and skill in its florescence. Some of my fondest memories are attending ballgames with my dad or with my children. The way your breath catches when you turn into the tunnel, emerge from the gray interior of the stadium, and catch a glimpse of the emerald field. The feel of the sun as you lounge in your seat. The easy conversation between pitches and innings. The ability to espy all the small little strategic maneuvers, as baseball is the most transparent of all games. It is a privilege, and like most privileges something we pay for with our labor and the money we earn from it. We can’t simply assume that all privilege is unmerited. Here we are asked to believe that the “privileged” who are in the stands are as undeserving of their position as those outside the fence are of theirs.

Then, too, there are the players. The image elides its own appeal: people want to watch a game because they witness athletic excellence, and they appreciate the variations and hierarchies created by different skill levels. Bringing equity to the diamond would be a task worthy of Kurt Vonnegut: birdshot around the necks of fast players, harnesses on those with strong arms, and wings on the bats of those with too much bat speed. We’d create a game no one wanted to watch. But the author of the image—to the degree he gave it any thought—would have us believe that equity demands it and would make for a better world.

But perhaps the most important figures are the ones who rearrange the boxes: also hidden but charged with creating equity. It could be, of course, that the three figures in the second panel rearranged the boxes on their own, which would be in accordance with the principle of equality and not equity. This wouldn’t solve the free rider problem, but it would at least be an exercise of free decision-making and mutual solicitude. In fact, the middle image of equality presents a kind of natural solution that most human beings would normally gravitate toward. But the final panel requires an external actor, someone charged with creating equity whose job it is to remove systemic barriers, and to rearrange things for the three figures, who might not otherwise, under the second panel, realize they even have a problem that needs solving. Those of us on college campuses will immediately recognize this as the work of our Diversity and Inclusion officers who inhabit the student life divisions. They work hand-in-glove with woke faculty both to radicalize students and to create ever greater numbers of on-campus initiatives, most of which aim at ideological uniformity, whereby they try to turn fence builders and privileged fans into fence removers. They do this by focusing attention exclusively on the people standing outside the fence and by convincing them and their allies that the fence builders are the source of their problem.

One reason, maybe the main reason, racism is so pernicious is that it assumes we know something about a person we otherwise know nothing or little about. We organize our actions around conclusions that may very well be wrong (although, logically, they could be right as well). That is a universal human problem that is exacerbated in an age of distraction, distance, and alienation, and turned into an insoluble problem by both racism and identity politics.

What Remains Unseen

But the image repeats the error. Given the inherent limitations of human action and interaction, we are attracted to solutions that don’t address the knowledge deficit but bypass it and turn it to moral advantage. The key is to make everything abstract at the conceptual level and highly personal at the perceptual one. Those who argue that resentment and wokeness are no way to achieve justice will be accused of “fragility.” The demand for “equity” taps into deep resentments, no matter how justified they might be, and stokes them into a kind of rage. How dare those fence builders obstruct our view? Get enough fans together outside the field of play and little encouragement will be required to get them to tear down fences.

But they won’t stop at the fences. They will then turn out the paying fans whose “privilege” put them in cahoots with the fence builders. The concession stands too are fair game because, profiting from being inside the fences, they are part of the whole system of fence-building. They will certainly turn on the owners, whose protestations that they were always in solidarity with the outsiders will do little to spare them. Finally, they will turn on the players themselves for having the temerity to play a game some people were unable to watch. And once they’ve burned the stadium to the ground, and they begin to build something in its place, as they must, they will do to others as had been done to them. In the name of inclusiveness they will exclude; in the name of free expression they will silence; in the name of diversity they will impost uniformity.

The appeal of the image is its simplicity, on the one hand, but also the sympathy we might feel for the shortest of the three persons outside the fence. “Yeah,” we think, “that would suck to not be able to see a game everyone else can see.” The contingency, the accident of history and birth, must be corrected somehow. Notice, however, that all the figures are faceless, and thus not really persons we could fully know. We don’t know their relation to each other, or how they got there. They are abstractions. We are asked to see them only in terms of one accidental property: their height. This focus on accidental properties draws our attention from the most interesting things about a person to the least interesting, and such distraction doesn’t put an end to unwarranted prejudices but exacerbates them. Simple images will only distort complex realities.

The dream of a colorblind society has passed. Anti-racists have dismissed King’s compelling moral vision and an idea of law that does not permit the performing of one injustice in order to rectify another. The blindfold on lady justice that ensures equality before the law has been ripped off by demands for equity. Not just our political system but more disturbingly our legal system becomes a struggle to put her thumb on the scale and upset the balance. In order to avoid playing favorites she plays favorites. An eye for an eye reemerges as a standard, but a standard applied without regard to particular persons. Guilt and victimhood are assumed with no evidence required. The demands for equity are ultimately grasps for power, and the implied rage for destruction in the image has now realized itself in our streets. The assertion that power is everything has fulfilled itself and will prove its own undoing.

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Donald Trump in 2016 struck me as indicative of several negative trends in our country. Trump embodied the generations-long coarsening of our culture, the obsession with celebrity, the decline of marital and familial stability, the democratic indulgence of political amateurism, and the perennial dangers of demagoguery. Besides, I had long loathed the man for his narcissistic self-promotion. The thought of Trump holding the office once held by George Washington convinced me that we were not capable of keeping the republic bequeathed to us.

I hesitated when I read Michael Anton’s “The Flight 93 Election” upon its publication in September of that year. Anton appealed to the compelling political principle that in this imperfect world we have to often choose the least objectionable option we have available to us. He made a stronger argument than this, but given the practical possibilities we had, I thought he made a good case for Trump, even if I thought then, as I do now, that Anton wasn’t sufficiently attentive to the actual details of governing.

What’s changed since 2016 such that an argument I couldn’t embrace a mere three years ago now convinces me? Anton argued that “a Hillary presidency would be pedal-to-the-metal on the entire progressive-Left agenda” and would result in a wave of “vindictive persecution” and censorship of the dissenters against her technocratic globalism. I shared that concern and had little hope that the left would be chastened by Hillary’s humiliation. Rather than learn how to live peaceably with their fellow citizens, the left doubled-down on both its ideology and tactics.

The Kavanaugh hearings demonstrated a strategy of character assassination that could see no gray area. I don’t share Anton’s confidence that Kavanaugh is a “fine man,”—I’m agnostic on the question—but I believed the utter disregard for the foundations of the rule of law—presumption of innocence, the need -for compelling evidence and corroborating testimony, a fair trial that would guard a man’s reputation—coupled with a “believe the accuser” (if the accuser is a woman) mindset would embolden the left to accomplish its agenda through fear and intimidation.

Indeed, on college campuses such as my own, while administrators and faculty were indulging their globalist ambitions, student life divisions, and their ideological extremists in the diversity-industrial complex became shriller in their denunciations of any dissenting views. Their conduct justifies Anton’s claim that the left has an “all-consuming drive for absolute power”, is hostile to American and Western norms,” and demonstrates a “boundless destructive enmity,” even if casting it so negatively may blind conservatives to the reasons why the left has been electorally successful.

It’s not likely that Hillary’s support came primarily from those who are enthusiastic about “managerial Davoisie liberalism,” especially when you consider her run against Bernie Sanders. Rather, at the electoral level, the Democrats have gone all in on culture war issues. Hillary is the instructive person: consider how far the Democratic Party has come from “safe, legal, and rare” to the pressure being put on current candidates to fully endorse abortion as a substantive good. Abortion is what the Kavanaugh hearings were really all about, an indication of the sullied lengths abortion advocates will go to in order to remove any restrictions on the procedure.

As campus life and political life make increasingly clear, many on the contemporary left have no interest in making progress through the time-honored democratic practices of persuasion, negotiation, and compromise. When you are on the right side of history, it can’t get here fast enough. But unlike disagreement on economic or standard policy issues, cultural issues entail the correction of beliefs and attitudes. Those who will not be shamed will be remediated; and if not that, then ostracized.

Part of Trump’s appeal flows from the fact that he infuriates these people. I have my complaints about his conduct and character, but at least someone is standing up to the bullies on the left. On college campuses the left will keep thumping you in the chest, and when you’ve finally had enough and raise your hands to defend yourself, they accuse you of being aggressive. The same mindset infects our politics, and Trump has shown he won’t be pushed around. My favorite part of Anton’s essay is when he compares modern conservatives to the hapless Washington Generals: we are expected to suit up and lose, never playing too hard and never scoring too much. I think that’s right, even if it seems to me that our leftist Globetrotters would prefer now to have the court to themselves.

If I bracket my distaste for Trump and his imprudent conduct, and I’m not inclined to “see his vulgarity as a godsend to the conservatives,” I find myself liking much of what he has done. He has changed the debate on immigration, and while I favor a generous immigration policy and an easier path to citizenship, I also support an orderly policy. He understands that incentives matter in political and economic life. I applaud his judicial appointments. I thought the tax bill was an important first step in the simplification of our tax code. I think he understands well how a leader might want to use all the tools in his toolbox and to strengthen his negotiating position. I find it difficult to argue with growth and unemployment rates both hovering around 3%. He’s been one of the most effective presidents we’ve had on abortion issues. He hasn’t gotten us embroiled in foreign wars. He’s made gestures at restraining the administrative state and forcing Congress to do its job. Set aside your feelings about the man, and the presidency looks pretty appetizing.

It’s difficult, of course, to do that. The presidency is about much more than policy. Anton observes that Trump’s rise could only happen “in a corrupt republic, in corrupt times,” and I find myself wondering if a sick body can produce from within itself a pathogen that will promote its own healing. In other words, if in fact, as Anton claims, America is in decline, is Trump a cure, a purgative, or a comorbidity?

I’m sympathetic to the general mood of the essay and am inclined to see Trump as a symptom of a diseased body. I don’t think, however, that Anton fully diagnoses the disease, and thus doesn’t really provide us with the right cure. The core illness of our politics is the refusal to accept limits, an expansive appetite that consumes the barriers that would otherwise restrain its consumption. So while I think Trump’s more modest foreign policy that emphasizes the national interest, his fitful and imperfect efforts to restore a system of checks and balances, and his nodding toward cultural restraints might be (to mix a metaphor) a pumping of the brakes, I doubt it will keep the car from careening its way down a cliffside road. Neither will it be likely to get everyone in the same car, by which I mean there are those who won’t be interested in national unity if it means giving up ideological purity.

For Anton is right when he says that “the money will dry up and—what then?” The body politic is dying of over-consumption, and neither Trump nor anyone else is willing to put it on the strict regimen it will need to regain some of its health. The underlying conflicts of our politics have been mitigated by the illusion of affluence created by the massive amount of total debt in the economy. When those bills—including our unfunded liabilities—come due and a recognition of the realities of scarcity is introduced into our politics, our current political battles will seem tame by comparison. The immense size of the fiscal gap (the calculated difference between 75 years of future expenditures and anticipated receipts) requires an immediate 27% cut in spending (Kotlikoff claims the number is actually 47%). The longer we wait to operate, the more difficult the recovery. Unless Trump starts making serious efforts to trim entitlements and scale back the military, our disease will keep progressing. It seems unlikely that a populist politician will make that case for the public or to his supporters, many of whom are on the dole. What happens then will make people left and right pine for these halcyon days and will make us wonder why we were busy debating cosmetics instead of putting ourselves on a diet.

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Two recent articles in The New York Times highlight a common (mis)understanding concerning the politics of abortion, and in the process reveal much about the state of political disagreement, particularly as it involves the role of the Constitution in public life.

Dwight Garner reviewed the Library of America’s release of the works of Wendell Berry. At nearly 1700 pages, the collection gave Garner a lot to read, so he might be forgiven for writing summarily, although not dismissively. In the limited space he had to deal with Berry’s work, Garner could not resist observing about Berry: “A man of Christian faith, he is opposed to abortion.” One would have to work hard to find evidence in Berry’s work of his Christian faith, and even harder to find evidence of its orthodoxy. A reader doesn’t, however, need to search much to find what Berry has to say about abortion. Pretty much everything Berry has to say about the topic can be found in his essay “Caught in the Middle,” also available in a different form in his recent book Our Only World. In that essay Berry argues there should be no laws against abortion, and in general his essay cannot be said to be a defense of the “pro-life” position. My guess is that Garner read only a small part of Berry’s works, but the gratuitous inclusion of the abortion reference raises the suspicion that writers for The New York Times seem to think it’s the most important issue of the day.

A more thorough, and I suppose more thoughtful, expression occurs in Linda Greenhouse’s recent essay on abortion and the Establishment Clause of the Constitution. Like Garner, Greenhouse believes that objections to abortion ultimately and exclusively arise from religious beliefs. Granted, Greenhouse does provide accompanying evidence indicating that, in some instances, restrictions on abortion were accompanied either by overt religious justifications or implicit religious assumptions, or adorned with religious language. Whether the accompanying policy would be discredited under the Establishment Clause would be, minimally, a matter of debate.

But Greenhouse takes the statutory existence of religious language as prima facie evidence that an Establishment Clause violation has occurred. This is in no small part due to her belief that the Establishment Clause bars any policy initiative that implicates religion, overtly or covertly, at any level of government. A “strict separationist” reading of the Establishment Clause, she believes, is the only thing that keeps America from devolving into a puritanical dystopia. It’s a reading that has been largely discredited, but Greenhouse’s interpretation seems to suggest that government must restrain religion, to the point of purging it completely from national life.

Greenhouse’s epiphany occurred while traveling in Ireland, a country which recently “threw off the shackles of the Catholic Church” by liberalizing its abortion laws. This emancipation enabled Ireland “to claim the secular freedom its people now enjoy,” in contrast to a “disingenuous politics” which will “hurl us backwards to a place many of us never imagined.” While “Ireland marches boldly into the future,” the US becomes increasingly theocratic. At the forefront of this regressive politics stands the Church specifically, and religious belief generally, which represses human autonomy in all its forms. Today our uteruses, tomorrow our minds.

At the center of this narrative stands her conviction that accommodating religious belief always results in an indulgence of religion’s tendency toward coercion. The flash point was the Court’s accommodations in Hobby Lobby, which have metastasized to the point where religion has a “current grip on public policy.” The Court may be counted on to compound their error in Hobby Lobby by refusing to use the Establishment Clause properly in rolling back religious accommodations. Indeed, the Court has now, according to Greenhouse, created a rule “that the Establishment Clause permits any religious favoritism short of actual coercion of non-adherents.”

At the policy level, Greenhouse claims, this will mean that some women will be made “second-class citizens” when their benighted employers don’t provide the women with the “health care benefit” which is a statutory right serving an essential secular purpose. Employers may also refuse to fund insurance policies that cover gender-alteration therapies to transgendered persons, in both instances motivated by antiquated notions of sin.

As with the marriage debate in this country, much of the argument involves money. Policy must determine the distribution of material benefits. Absent is any notion of a public or a common good, or a serious discussion about how insurance plans actually operate in terms of the management of risk pools. Should all persons buying into an insurance plan be required to cover risks they’re not inclined to, whatever the reason? Or pay for services they don’t use? Why would it be the case that only secular persons might be victims of coercion?

The connections to her general reading of the Establishment Clause are obvious. What sorts of broad public accommodations might the Constitution provide for religious groups? Would it allow for the provision of basic public services to religious organizations, even if the taxpayer makes no use of, or has no use for, that organization? Must the Establishment Clause be used in the most restrictive ways possible, to insure the complete absence of religion in public life? Does she honestly believe that a proper reading of the Establishment Clause, either in historical construction or in case law, results in the “high wall” of separation she clearly favors? In any case, the dismissive claim that “God’s will cannot be a constitutional justification for a law that erases an individual right” has little to do with any serious understanding of the Establishment Clause. Neither, for that matter, can the absence of God’s will erase an individual’s right to the free exercise of religion.

Greenhouse’s essay serves as a reminder that the law cannot function when individuals or groups see reality in such radically divergent ways. Commitment to the rule of law requires commitment to Constitutional principles, but under such serious disagreement about those principles the rule of law will devolve into mere coercion. Does Greenhouse seriously believe that America is on the cusp of a theocracy? That religion has a firm grip on public policy in this country? That religious believers are coercing non-believers? That only a tendentious reading of the Establishment Clause can save us from a regressive collapse into rule by religious clerics, or religious fundamentalists?

In one telling passage, Greenhouse refers to a comment made by Una Mallally, a columnist for the Irish Times. Mallally noted that all anti-abortion movements are characterized by “religious fundamentalism, fake news, propaganda and hysteria.” I take this to be an example of the radical divergence of views that I mentioned above, for it seems to me very much the case that Greenhouse is engaging in her own secularist version of all these pathologies. Religious fundamentalism concerning sexual ethics? Check. Fake news about the extent of religion’s political power in America? Check. Propaganda concerning the meaning and history of the Establishment Clause? Check. Hysteria? Check.

What kind of propaganda? To begin with, stating that the Establishment Clause doesn’t justify referring to God’s will to deny rights is a straw man. She gives no indication of understanding the clause’s relationship to state establishments at the time of ratification, nor any sense of its relationship to the Free Exercise Clause. She shows no sensitivity to either the realities of federalism or the generally accommodating view of religion regnant at the founding. Most perniciously, she seems to think that the Establishment Clause requires there be no sanctuary for persons of faith, but rather compels them to obey generally applicable laws of secular justification. Her reading would render free exercise largely meaningless. Perhaps the reason why there is “no chance” the Court will “be receptive to Establishment Clause arguments” is because they are good enough scholars to know that Greenhouse’s arguments have little to do with the Establishment Clause.

Part of the problem, I suspect, is that both sides in the cultural debates like to have their histories and their policies neat and tidy. No reading of the Establishment Clause is going to solve our problems. One side looks at America and concludes that theocratic governance is the biggest problem we face. On the other side, religious believers feel as if they are being routed on virtually every front. Even the Hobby Lobby case can hardly be said to be a rousing defense of religious liberty. One might be tempted to say that no progress can be made until both sides acknowledge that the truth is somewhere in the middle, but that’s unlikely to happen when the two camps have such limited interactions with each other, and people typically won’t defend rights they have no intention of exercising.

Greenhouse believes that any hint of a religious justification for policy is automatically unconstitutional. All policy must have a secular justification. There is no one, to my knowledge, who makes a contrary argument: namely, that all policy must have some sort of religious justification, or even the softer claim that a religious justification is sufficient for making a policy recommendation. While anti-abortion activists may use religious justification for their arguments, their legal arguments have consistently used philosophical and scientific reasoning as their bases. Castigating such reasoning as “religious” is a useful polemic.

But The New York Times, it would seem, has no interest in such nuances. To nearly all of their editors and writers, all objections to abortion are religious objections, all religious beliefs are regressive, and all religious claims tend toward coercion. Coercion only goes one way, however: “You don’t like my view of sexual autonomy? Too bad for you. You’re still going to pay for it.” As Ross Douthat, a dissenting voice at the New York Times, once said, “Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will.”

Now that Ms. Greenhouse no longer covers the Court, we are allowed to see what she really thinks, not only of the Court and the Constitution, but of her fellow citizens as well. And she has made it clear that she has no interest in living in a world where religious accommodation gives sanctuary to bigotry, where anything short of strict separation puts us on the dangerous road to theocracy, and where political actors operate out of deep convictions not in line with her own. It’s hard to see how this ends well.

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