Of Motes and Beams

The left and right are attacking basic rights. But not equally.

In his latest column for the NYT, “Don’t Let the Culture War Degrade the Constitution,” David French dutifully plays his role as a “responsible conservative.” Yet, while I endorse almost every word of it, the degree to which he makes it a problem that is equally one of the left and right undermines its impact.

The opener is pure Classical Liberalism:

The Constitution of the United States, properly interpreted, provides a marvelous method for handling social conflict. It empowers an elected government to enact even contentious new rules while protecting the most fundamental human rights of dissenting citizens. Political defeat is never total defeat. Losers of a given election still possess their basic civil liberties, and the combination of the right to speak and the right to vote provides them concrete hope for their preferred political outcomes.

But if a government both enacts contentious policies and diminishes the civil liberties of its current ideological opponents, then it sharply increases the stakes of political conflict. It breaks the social compact by rendering political losers, in effect, second-class citizens. A culture war waged against the civil liberties of your political opponents inflicts a double injury on dissenters: They don’t merely lose a vote; they also lose a share of their freedom.

One can quibble with the presentation as a bit idealized, given the many obstacles to the majority enacting new rules, contentious or otherwise, or, indeed, to the majority actually winning control of the governing apparatus given some undemocratic features of our system. But, otherwise, it’s straight out of the Federalist Papers.

But, as a fellow former Republican who left our erstwhile party out of disgust with Trump and the “populist” takeover, I naturally expected this setup to be a condemnation of extraordinary measures in Florida, Arkansas, and other red states that clearly fly in the face of the First Amendment. Alas . . .

That’s exactly what’s happening now. The culture war is coming for American liberty — in red states and blue alike. The examples are legion. Let’s start with America’s progressive strongholds. On Wednesday, Gov. Gavin Newsom announced that the State of California would not renew a multimillion-dollar contract with Walgreens — not because Walgreens had failed to comply with its contractual obligations but rather because it had responded to Republican legal warnings and decided not to dispense an abortion pill in 21 red states. Newsom used his political power to punish a corporate position he opposed.

So, look, I think Newsom was wrong to punish Walgreens, a company that was dispensing “abortion pills” nationwide, for complying with post-Dobbs laws passed by several states and bowing to threats of lawsuits in others. But I don’t really see how this constitutes an infringement on anyone’s civil liberties.

California is not alone in its efforts to suppress constitutionally protected rights. Late last month the Court of Appeals for the Second Circuit held that New York’s so-called Boss Bill, which prohibits employers from discriminating against employees on the basis of their “reproductive health decision making,” may violate the expressive associational rights of pro-life organizations that require employees not to have abortions and to refrain from extramarital sex.

This one is just bizarre. New York passed a law seeking to protect the rights of its citizens to do things that are perfectly legal under state law but lost a court case saying that certain employers had a right to punish people for doing those things. I think the Second Circuit is clearly right. But it’s certainly not a case of New York using its power to “punish losers.”

But no, I’m not letting red America off the hook. 

That’s mighty white of you, Dave.

The educational culture wars are inspiring a host of educational gag orders across states that purport to block advocacy of disfavored ideas about race and gender. Many of those statutes are aimed at K-12 education, where the government has considerable control over teacher speech. But others are aimed at speech in public universities and private corporations, where states have much less control. Indeed, a federal court has already blocked enforcement of Florida’s so-called Stop WOKE Act to the extent that it limits free expression on public campuses and in private boardrooms.

Surely, these are vastly more egregious than the California and New York examples? I mean, by orders of magnitude? So why not lead with this?

Florida is one of the hot spots of right-wing censorship and punitive government. It passed an unconstitutional law to control social media moderation in the state, and Gov. Ron DeSantis took direct action against Disney after the company objected to Florida House Bill 1557, which tightly regulated “classroom instruction” on “sexual orientation or gender identity.” If the right is going to condemn Newsom’s action against Walgreens, shouldn’t it also oppose DeSantis’s attack on Disney?

Sure. But they’re not remotely equivalent examples! Newsom stopped doing business with Walgreens; DeSantis literally took over Disney, overturning a decades-old law giving the company autonomy over land that they developed, bringing billions in revenue to the state, on the basis of those guarantees.* Further, Newsom punished Walgreens for bowing to political pressure from outside, whereas DeSantis punished Disney for standing up for civil liberties. Those are very different things!

It’s a sign of the times that the list above — from the left and the right — is woefully incomplete. Careful observers will be able to point to any number of additional culture-war-motivated statutesregulations and government actions that take aim at the Bill of Rights.

State attacks on civil liberties are even affecting our most valued relationships: the bonds between parent and child. In January, The Times reported on how public schools sometimes withhold from parents information about a child’s gender transition, even in the absence of any evidence of parental abuse. California has enacted a statute that grants the state broad authority to permit children to receive “gender-affirming health care” there, even potentially over the objection of a custodial parent.

For example, Section 7 of the law states that California courts won’t weigh as a factor against a petitioner seeking California court jurisdiction if the person took a child “from the person who has legal custody” in order to obtain “gender-affirming health care” and that care is limited by the law or policy of another state.

And because every culture war action against civil liberties has its mirror image on the other side, Gov. Greg Abbott of Texas issued a directive to the Texas Department of Family and Protective Services to investigate as “abuse” both surgical and pharmaceutical interventions for transgender children, regardless of the good faith and desires of the parents, children and caregivers involved.

Again, these are not equivalent assaults on civil liberties. Even if one starts with the presumption—as I do—that parents should have considerable latitude in making decisions about their minor children, we have to recognize that these rights have to be balanced against the mental health of those children. And that there are a lot of shitty parents out there, especially with regard to LGBTQ issues and other matters of human sexuality. I struggle with how to achieve that balance and am not at all sure California has gotten it right. But I’m quite certain Texas has gotten it wrong.

To understand the gravity of the state interference with parental authority, it’s worth remembering the words of Chief Justice Warren Burger in the 1972 case Wisconsin v. Yoder, in which he wrote that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” To simply presume that parents are abusive because they may dissent from state consensus on transgender care is to violate this principle of American law.

So, that case was more than half a century ago. It’s so old that abortion was still illegal! (Oh, wait.)

Further, it wasn’t about medical care but about the right to raise one’s children according to one’s religious beliefs. A unanimous Court ruled that the state’s interest in children attending school through age 16 didn’t outweigh the rights of Amish parents to pull them out after 8th grade according to their religious beliefs.** Frankly, I think Burger and company got it wrong. Regardless, subsequent SCOTUS rulings set boundaries, notably two cases in which Christian Scientist parents killed their children by refusing to provide appropriate medical care and were punished by the state.

French’s close is strong:

In a nation as diverse as the United States, conflicts over values are inevitable, but our most basic civil liberties must remain inviolate. To govern otherwise both inflicts a grave injury on dissenting citizens and violates the letter and spirit of the Constitution itself. Our right to speak, much less to parent, should not be contingent on our ability to gain political control.

The much better course for our democracy is to uphold a legal corollary to the golden rule: Defend the rights of others that you would like to exercise yourself. It doesn’t end the culture war. We’ll still clash over contentious issues. But maintaining a bedrock defense of civil liberties lowers the stakes. Protecting individual freedom tells all Americans and all American families that the social compact holds and — win or lose on any given issue, regardless of how controversial — this country is still their home.

While there are margins at which perceived societal interests will clash with the deeply-held beliefs of individual citizens, our instinct should be broadly libertarian: to each his own.

But French’s argument would be much more compelling if he had acknowledged that the assault on “basic civil liberties” is coming almost entirely from one side of the culture wars.

Amusingly, even bending over backward to pretend that the problem is equally one on the left, French is being attacked from the right as a “conservative” engaged in the “pathetic drawing of false equivalencies.”

Comparing the protection of children from harmful life-altering procedures to California promoting the same is asinine. It’s a weak attempt to draw a moral and legal equivalency that simply doesn’t exist. The state that is trying to stop children from being abused (yes, it’s abuse) is not the same as the state mandating that same abuse.

[…]

Pervasive transgender ideology targeting children is not a philosophical game in the pages of the Times. It’s a dangerous, growing poison that thrives on its opponents ceding ground. States absolutely have a legal right to regulate medical procedures, and they certainly have a legal (and moral) obligation to protect children in the process.

So, he isn’t even winning over what is essentially his own side with his framing.

_____________

*Disney literally brought electricity, water, roads and police to the area.

**The ruling was unanimous, but there were multiple concurrences, a partial dissent, and Justices Powell and Rehnquist took no part in the case.

FILED UNDER: *FEATURED, Society, , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. daryl and his brother darryl says:

    Further, Newsom punished Walgreens for bowing to political pressure from outside, whereas DeSantis punished Disney for standing up for civil liberties. Those are very different things!

    I would go further, even.
    Newsom cancelled a contract with Walgreens for willingly denying women of their rights, even in states where abortion is legal.
    DeSantis punished Disney simply for daring to disagree with him.
    Bigger picture, Newsom simply cancelled a contract. Contracts are cancelled all the time. DeSantis literally took control of the the Reedy Creek Distict…a borderline, if not actual, fascist action.

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  2. Cheryl Rofer says:

    Yay, James!

    I gripe enough about your posts that I thought I’d credit you with getting this one right.

    I’d add that the Times’s purpose in hiring people like French to write opinion is to launder extreme rightwing views into the mainstream by both-sidesing them.

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  3. Chip Daniels says:

    Its also important to keep in mind the desired goals of the two sides, not just the actions.

    One can consider Newsom’s action an overbroad use of government power, but the goal is clearly to protect women’s rights and ensure them them greater personal autonomy.

    DeSantis’ goal is just the opposite, to restrict rights and curtail individual autonomy. Even if an argument can be made for his legal authority to do so, his goals are malign.

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  4. Modulo Myself says:

    The much better course for our democracy is to uphold a legal corollary to the golden rule: Defend the rights of others that you would like to exercise yourself. It doesn’t end the culture war. We’ll still clash over contentious issues. But maintaining a bedrock defense of civil liberties lowers the stakes. Protecting individual freedom tells all Americans and all American families that the social compact holds and — win or lose on any given issue, regardless of how controversial — this country is still their home.

    They pay this man money to write a column and all he can think of is the ideal. Yeah, what happens when trans rights and wokeness are declared public enemies #1? What happens when women’s rights are considered via theocratic interpretation? French will be writing this column when DeSantis has special prosecutors swooping in on parents of trans kids and worse.

    Obviously, this is what French has been paid to do. He’s not here to ask questions or be intelligent. If so, he would not have been hired for this welfare position.

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  5. Kathy says:

    Change “gender affirming care” to “vaccine,” and you may feel different about it.

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  6. MarkedMan says:

    This highlights the intellectual bankruptcy of the “sensible middle” approach. The only way to present a lot of these hotpoint as having a compromise position is to obfuscate. For example, the fight is portrayed as “against religion”, but that elides the crucial part. It is actually “against religious beliefs that certain minority groups must be discriminated against.” No one is trying to stop people from worshiping Jesus or speaking in tongues or full immersion baptism.

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  7. just nutha says:

    @Modulo Myself:

    Defend the rights of others that you would like to exercise yourself. [emphasis added]

    Except that the previous statement isn’t the golden rule or a political equivalent of it. It is, however, the type of pretzel logic evangelicals and fundies use to get to statements like “I would want someone to stop me from getting an abortion/transitioning/whatever.”

    A true or honest political version of the golden rule would be more likely to read “Defend the rights of others in the same manner that you would want your rights to be defended.”

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  8. gVOR08 says:

    I felt compelled to comment on French’s column, but I struggled a bit with how to get to the point. James got to the point nicely with “motes and beams”. But I was trying to get beyond just the forced bothsides. My problem is I don’t entirely disagree with French. Newsom’s action with Walgreens made me happy. I’ll be shifting to CVS myself. But I am uncomfortable with Newsom’s action. It is tit-for-tat with the red state AGs, but he’s playing the same game as them, using state policy for his own political gain.

    In reply to French I commented with an overlong quote from Karl Popper’s The Open Society & It’s Enemies expressing one of his key points, that the open society must be tolerant. It must be tolerant of anything – except intolerance. If allowed to grow, intolerance will destroy tolerance.

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  9. gVOR08 says:

    @MarkedMan:

    For example, the fight is portrayed as “against religion”, but that elides the crucial part. It is actually “against religious beliefs that certain minority groups must be discriminated against.” No one is trying to stop people from worshiping Jesus or speaking in tongues or full immersion baptism.

    Indeed. Neither is anyone forcing them to have abortions. But they are forcing women who do not share their religious beliefs to follow their beliefs anyway and not have abortions.

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  10. wr says:

    @gVOR08: “It is tit-for-tat with the red state AGs, but he’s playing the same game as them, using state policy for his own political gain.”

    I get the discomfort, but it seems to me that this was a necessary action. If corporations are pushed and pushed and pushed by Republican states to enact Republican policy and there’s no pushback and no penalty from the other side, guess what they’re going to do. What Newsom did may be putting the corporations in the middle, but at least it’s going to stop them from being pushed all the way to the right.

    Oh, and if drug store chains find it difficult to be doing business in all these different states with all these different laws, maybe it’s just not a great idea having the entire national industry owned by two companies.

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  11. DK says:

    @Cheryl Rofer:

    I gripe enough about your posts that I thought I’d credit you with getting this one right.

    Yes, it’s excellent.

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  12. Mister Bluster says:

    @MarkedMan:..No one is trying to stop people from worshiping Jesus or speaking in tongues or full immersion baptism.

    As I have told more than a few people, when the government puts a lock on the door to your church so you can’t get in come and get me and I’ll bring my bolt cutters.

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  13. Michael Reynolds says:

    @wr:
    I’d also note that this is the same sort of accusation that’s been leveled against California for forcing the whole country to use seatbelts and airbags. Texas deploys its overweening power over school textbooks, I see no reason we shouldn’t push back.

  14. gVOR08 says:

    @Mister Bluster:

    when the government puts a lock on the door to your church so you can’t get in come and get me and I’ll bring my bolt cutters.

    They’ll reply that the government did close their church. Sure, they used COVID as an excuse, but what they really wanted to do was close my church. After all, if it was about COVID they’d have closed the liquor stores.

    You can talk all you want about extended close contact and hymn singing with airborne transmission. Won’t make any difference. I think much of it is projection. They want to own the libs and they’re sure we libs want to own them. Why else would we tell them to wear masks?

    (W. C. Fields – MAGAs are like elephants. Nice to look at, but I wouldn’t care to own one.)

  15. Jay L Gischer says:

    Personally, I think French is bothsidesing in the hope that will get conservatives to read and pay attention. You can point to places where it isn’t working in the sense that there’s pushback, but that always happens. Being argued with is better than being ignored.

    I’ve seen this kind of thing before, for sure.

  16. Modulo Myself says:

    @just nutha:

    French goes on to write:

    State attacks on civil liberties are even affecting our most valued relationships: the bonds between parent and child. In January, The Times reported on how public schools sometimes withhold from parents information about a child’s gender transition, even in the absence of any evidence of parental abuse. California has enacted a statute that grants the state broad authority to permit children to receive “gender-affirming health care” there, even potentially over the objection of a custodial parent.

    …And because every culture war action against civil liberties has its mirror image on the other side, Gov. Greg Abbott of Texas issued a directive to the Texas Department of Family and Protective Services to investigate as “abuse” both surgical and pharmaceutical interventions for transgender children, regardless of the good faith and desires of the parents, children and caregivers involved.

    The bottom line is that the Christian right is filled with people who advocate parental abuse of children if they’re different and the government going after parents who treat their children like human beings.

    I don’t believe that parents have the right to abuse children as if they are their property, and so in both cases French cites my beliefs are upheld. I think children have the right to have their personal lives protected from parents who are abusive, and I think any theocratic government should be destroyed if the lay a hand on a parent. And more importantly: we all know I’m right. Schools are protecting kids from fucked-up parents. If a kid can’t trust their parents, that’s all it takes. QED. And French knows this as well…so either French supports abuse of children or he is prevaricating because he’s paid as a Christian hack to do so. I suspect that it’s the latter.

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