Every Friday afternoon when I open Jonah Goldberg’s G-File newsletter, I am tempted to share it on various social media, then cut-and-paste the text of it in this blog for preservation, much like my grandma used to paste newspaper articles in her scrapbook.
Yet, I restrain myself. I used to try forwarding his stuff to select friends and family, but no one ever gave me any feedback. It felt as if Jonah’s words and my efforts were futile.
But this G-File, published last Friday, June 29, might be one of the most profound that he has ever written. I was seriously considering saving it even before I read an article in the New York Times. It’s as if the author read Jonah’s newsletter, then wrote an article bound and determined to prove his point.
I will first offer an excerpt from Jonah’s newsletter, followed by excerpts from the New York Times piece which appeared in the A. Section, not the opinion pages. That in itself is telling. I will leave the reader to judge the obvious correlation for him or herself.
First, here is Jonah Goldberg’s newsletter.
Dear Reader (Including those of you not cursed to endure the sweatpant-fog climate of Washington, D.C.),
Sometimes we use certain words only to describe the forms of that word we do not like.
Let me explain: Let’s imagine that my daughter says, “French food is awful.”
I respond: “What do you mean?”
She replies, “Snails, Daddy. They eat snails.”
To which I retort, “Oh, I agree. We never should have let them talk us out of those toasted cheese sandwiches, that time. But you love duck confit and
croissants. That’s French food, too.”
Daughter: “That’s different.”
The same dynamic plays itself out in many political and policy debates.
My go-to example of this is the word “censorship.” Over my many years of debating with intense libertarians of the left and the right, I’ve heard many
times that “all censorship is wrong” or “I am 100 percent against censorship.”
“Oh really?” I ask. “So riddle me this: The FCC prohibits hardcore child pornography on Saturday-morning TV. Are you against that?”
The answers tend to vary, but one very common retort is something like, “Oh come on. That’s not censorship; that’s just reasonable regulation. Besides, no
one is proposing doing that.”
To which I reply — and I’m going to stop using quotation marks because this is getting silly — of course it’s censorship. You just approve of it, so you
don’t call it censorship. As for the fact that nobody is proposing running kiddie porn in the cartoon hour doesn’t mean much. If someone did propose it,
you’ve conceded that it would be reasonable to proscribe it. Ergo (an incredibly douchey word to use in debate over beers, by the way) you’ve conceded
that you’re not 100 percent against censorship. Censorship, in other words, is the word we use for censorship we don’t like.
Now, I’m being unfair to people who have better or more interesting responses to my case, but that’s okay because a) that’s very rare and b) I’m not here
to discuss censorship.
There are all sorts of words that work this way in our politics. Every day I hear people say that one shouldn’t be “dogmatic,” or that their political
opponents are dogmatists, or some such. But as I have written many times, everyone subscribes to all manner of dogmatic convictions — and they should.
People not dogmatically opposed to genocide, premeditated murder, rape, etc. aren’t brave and pragmatic free-thinkers. They’re sociopaths.
The accumulation of dogma — good dogma, duck-confit dogma, not-snail dogma — is the process by which civilizations advance. In a state of nature, man is
open to all possibilities if he can be convinced he will gain an advantage in a bid to survive. With no controlling moral authority beyond the basic programming
of our genes, we were free to take the shortest route between any two points, so long as we believed it would work out well for us. Even after the Agricultural
Revolution, civilizations defined morality largely according to what benefitted the rulers. Child sacrifice — common around the globe for millennia — seemed
like a plausible way to get better crop yields, so why not go for it?
Over time, through the process of trial and error informed by reason and faith, we accumulated some conclusions about how society should operate. These
conclusions became dogmas. Dogma is simply the word we use for settled questions we no longer want to reopen. Not all dogmas are good. Some are evil, to
be sure: child sacrifice, slavery, etc. But the process of refining our dogmas is what makes us, if not human, then certainly humane. Conversely, the process
by which we unthinkingly smash dogmas without understanding their function is the fastest route to barbarism. The Bolsheviks rejected the dogma of universal
human dignity and slaughtered people with an abandon more closely resembling the Aztecs than anything resembling secular humanism.
Here’s how Chesterton put it:
When [man] drops one doctrine after another in a refined skepticism, when he declines to tie himself to a system, when he says that he has outgrown definitions,
when he says that he disbelieves in finality, when, in his own imagination, he sits as God, holding no form of creed but contemplating all, then he is
by that very process sinking slowly backwards into the vagueness of the vagrant animals and the unconsciousness of the grass. Trees have no dogmas. Turnips
are singularly broad-minded.
When I was flying over the North Slope of Alaska with a bush pilot nearly 20 years ago, the pilot told me how he once discovered a field of dead moose,
almost entirely intact, save for the fact that they had their bellies ripped open. He explained that a grizzly bear or bears had killed all the females
just to eat the unborn calves out of their bellies — because that was the tastiest part. Rather than eat just one whole moose, the bear was simply guided
by the turnip-like dogma of its instincts. The history of humanity is full of stories where people, likewise, lived with such undogmatic cruelty. Of course,
it’s unfair to describe the bears as cruel, because they have no concept of cruelty. They think it is good to eat your face, because that is their nature.
We do have a concept of cruelty, and we have dogma to thank for it.
So when I hear people say that they don’t like dogma, what I hear is that they don’t like the dogma of people who disagree with them.
The same goes for ideology.
In the last 48 hours, amidst the flop-sweat panic over Anthony Kennedy’s retirement, I’ve heard one abortion activist after another — including many who
play objective journalists on TV — insist that abortion opponents are crazed ideologues who want to impose their ideology on others. I have no doubt that
these talking points test very well in focus groups. I also have no doubt that these talking points are sincerely held.
Last night, I saw a tweet from the president of NARAL and responded to it:
Twitter Tweet frame
Jonah Goldberg (screen name: JonahNRO)
View on Twitter
All positions on abortion are ideological.
ilyse hogue Verified Account Verified Account @ilyseh
Replying to @ilyseh
Access to abortion is not an ideological litmus test but a human right for women who must be in charge of our own families in order to survive and thrive
economically and physically. The ideologues are those who think their beliefs are more important than our lives.
10:37 PM – Jun 28, 2018
Tweet actions 693
Tweet actions 199 people are talking about this
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Twitter Tweet frame end
The replies are instructive.
Ideology is the first draft of dogma. The good kind is merely a set of preferences, grounded in conviction, evidence, experience, or reason, that helps
guide us when we think through an idea or when we encounter new problems or facts. Progressives have an ideology. Conservatives have an ideology. Libertarians,
socialists, and, yes, pragmatists have ideologies, too.
Part of my ideology is the idea that we should err on the side of protecting individual liberty. I am not categorically opposed to restrictions on individual
liberty, however. I favor a military draft when it’s necessary (and I am ideologically opposed to one when it is unnecessary). I believe in putting rapists
in jail and executing the most heinous murderers. But part of my ideology holds that we should only do so after providing due process. My concern isn’t
that we might be unfair to a rapist or murderer, however. My concern is that without such systems in place, there’s too much potential to be unfair to
someone falsely accused of murder or rape. The mob hates due process.
The debate over abortion revolves around a question of fact — or interpretation of fact — that then determines the ideological course of action like the
first choice in a “choose your own adventure” book. If you conclude that the unborn, either at conception or at some later point of the pregnancy, acquires
moral status and rights, you go down one path of thought. If you believe,
like Barbara Boxer does,
that it’s not really a baby until you bring it home from the hospital, that sets you down another path.
Both sides in this dispute share some dogmatic and ideological convictions. They just apply them differently. The hardcore pro-abortion crowd uses the
language of individual liberty about the mother: How dare the state tell me what to do with my body!? In order to make this argument, however, they must
define away that other life as nothing more than uterine contents, a glob of cells, or some other euphemism. The hardcore anti-abortion crowd starts from
the premise that the fetus is an individual human being and as such deserves protection from harm. And it is the state’s first obligation to police or
regulate violence.
Both of these positions are ideological. One common response to this claim, peppering the replies to my tweet, is that abortion isn’t ideological for the
pregnant woman. There’s some truth to this, in the sense that we often shed our abstract commitments when pressed with real-life choices or difficult circumstances.
That’s why we have the saying, “There are no atheists in fox holes.”
The progressive who pounds the table in defense of public schools but sends his own kids to a private school is one example. The conservative CEO who talks
a great game about the free market and the evils of crony capitalism but barely hesitates to accept a subsidy is another. This hypocrisy is entirely human,
and our capacity to rationalize such things is often infinite.
And one of the most common ways we grease the skids for our retreat is by simply switching one ready-made ideology for another.
Bad ideology, like bad dogma, is a very real thing as well. Bad ideologies confuse is and ought. They hitch themselves to an unproven or unfalsifiable
conviction about the way things should be. The worst ideologies assume humans are clay, dispensable when insufficiently pliable. They heap scorn on the
hard-learned lessons of civilization in favor of glorious castles built in the air. Opposition to their agenda is seen as an evil desire to deprive people
of happiness not attainable in this life.
Other ideologies are just silly — not in the desirability of their aims necessarily, but in the belief that they would work. Alexandria Ocasio-Cortez won
her congressional primary contest in New York this week by championing one such ideology. It basically boils down to what someone called “open-borders
socialism.” It is grounded in an ancient romantic notion that economics — the science of competing choices amidst finite resources — is a con. We can do
all the good things simultaneously. Everyone can become an American, and every American is entitled to free housing, free school, guaranteed work, and
every other good thing. It is the ideology of the child or the aristocrat — often the same thing — that holds we can of course have our cakes and eat them
too. And as with the more evil forms of ideology, its advocates assume that those opposed are motivated by a desire to deprive the deserving of something
they could easily give them.
In a world of infinite resources, it would indeed be a crime to deprive others of their fair share of the infinite. But we don’t live in that world. Part
of the job of parents is to explain to children that “We are not made of money” and even if we were, we could not or would not satisfy our children’s every
whim.
But we live in a time of epidemic childishness, working on the assumptions that we can borrow money forever and that the government is made of money. “Example
is the school of mankind, and he will learn at no other,” says Edmund Burke. What he meant by that is people must learn from actual events: They must be
shown, not told. This doesn’t mean that every generation must relearn first-hand the mistakes of the past. It means they must be taught about the mistakes
of the past. That’s what parents do with their kids. And it’s what grown-ups do in politics.
But there’s a marked shortage of grown-ups these days, which is a real calamity when childishness runs free.
That was Jonah Goldberg’s newsletter. Now, here is the very chilling article, published as news in the New York Times, on Saturday, June 30.
How Conservatives Weaponized the First Amendment
By
Adam Liptak
WASHINGTON — On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.
The court’s five conservative members, citing the First Amendment, had just
dealt public unions a devastating blow.
The day before, the same majority had used the First Amendment to
reject a California law
requiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.
Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”
The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech.
Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination
against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.
“The right, which had for years been hostile to and very nervous about a strong First Amendment, has rediscovered it,” said
Burt Neuborne,
a law professor at New York University.
The Citizens United campaign finance case, for instance, was decided on free-speech grounds, with the five-justice conservative majority ruling that the
First Amendment protects unlimited campaign spending by corporations. The government, the majority said, has no business regulating political speech.
The dissenters responded that the First Amendment did not require allowing corporate money to flood the political marketplace and corrupt democracy.
“The libertarian position has become dominant on the right on First Amendment issues,” said
Ilya Shapiro,
a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial
and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.”
And an increasingly conservative judiciary has been more than a little receptive to this argument.
A new analysis
prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments
concerning conservative speech than liberal speech. That is a sharp break from earlier eras.
As a result, liberals who once championed expansive First Amendment rights are now uneasy about them.
“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said
Floyd Abrams,
a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught
at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”
Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.
Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship.
Now many on the left see pornography as an assault on women’s rights.
In 1977, many liberals supported the right of the
American Nazi Party to march
among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who
marched last year in Charlottesville,
Va.
There was a certain naïveté in how liberals used to approach free speech, said
Frederick Schauer,
a law professor at the University of Virginia.
“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for
the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally
inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”
Some liberals now say that free speech disproportionately protects the powerful and the status quo.
“When I was younger, I had more of the standard liberal view of civil liberties,” said
Louis Michael Seidman,
a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as
an effective means to accomplish a more just society.”
To the contrary, free speech reinforces and amplifies injustice,
Catharine A. MacKinnon,
a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.
“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what
was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed,
has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”
Changing Interpretations
In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters, including
communists and civil rights leaders, comedians using vulgar language on the airwaves or artists exploring sexuality in novels and on film.
In 1971,
Robert H. Bork,
then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly
in
a law-review article
that remains
one of the most-cited
of all time.
“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote. “There is no basis for judicial intervention to protect
any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
But a
transformative ruling
by the Supreme Court five years later began to change that thinking. The case, a challenge to a state law that banned advertising the prices of prescription
drugs, was filed by Public Citizen, a consumer rights group founded by Ralph Nader. The group argued that the law hurt consumers, and helped persuade the
court, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, to protect advertising and other commercial speech.
The only dissent in the decision came from Justice William H. Rehnquist, the court’s most conservative member.
Kathleen M. Sullivan,
a former dean of Stanford Law School, wrote that it did not take long for corporations to see the opportunities presented by the decision.
Conservatives in Charge, the Supreme Court Moved Right
Justice Anthony M. Kennedy’s last Supreme Court term contained hints of his retirement and foreshadowed a lasting rightward shift.
June 28, 2018
“While the case was litigated by consumer protection advocates,”
she wrote
in the Harvard Law Review, “corporate speakers soon became the principal beneficiaries of subsequent rulings that, for example, struck down restrictions
on including alcohol content on beer can labels, limitations on outdoor tobacco advertising near schools and rules governing how compounded drugs may be
advertised.”
That trend has continued, with businesses mounting First Amendment challenges to gun control laws, securities regulations, country-of-origin labels, graphic
cigarette warnings and limits on off-label drug marketing.
“I was a bit queasy about it because I had the sense that we were unleashing something, but nowhere near what happened,” Mr. Nader said. “It was one of
the biggest boomerangs in judicial cases ever.”
“I couldn’t be Merlin,” he added. “We never thought the judiciary would be as conservative or corporate. This was an expansion that was not preordained
by doctrine. It was preordained by the political philosophies of judges.”
Not all of the liberal scholars and lawyers who helped create modern First Amendment law are disappointed.
Martin Redish,
a law professor at Northwestern University, who wrote
a seminal 1971 article
proposing First Amendment protection for commercial speech, said he was pleased with the Roberts court’s decisions.
“Its most important contributions are in the commercial speech and corporate speech areas,” he said. “It’s a workmanlike, common sense approach.”
Liberals also played a key role in creating modern campaign finance law in
Buckley v. Valeo,
the 1976 decision that struck down limits on political spending by individuals and was the basis for
Citizens United,
the 2010 decision that did away with similar limits for corporations and unions.
One plaintiff was Senator Eugene J. McCarthy, Democrat of Minnesota, who had challenged President Lyndon B. Johnson in the 1968 presidential primaries
— from the left. Another was the American Civil Liberties Union’s New York affiliate.
Professor Neuborne, a former A.C.L.U. lawyer, said he now regrets the role he played in winning the case. “I signed the brief in Buckley,” he said. “I’m
going to spend long amounts of time in purgatory.”
To Professor Seidman, cases like these were part of what he describes as a right-wing takeover of the First Amendment since the liberal victories in the
years Chief Justice Earl Warren led the Supreme Court.
“With the receding of Warren court liberalism, free-speech law took a sharp right turn,” Professor Seidman wrote in
a new article
to be published in the Columbia Law Review. “Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the
apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community,
labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”
The title of the article asked, “Can Free Speech Be Progressive?”
“The answer,” the article said, “is no.”
Shifting Right
The right turn has been even more pronounced under Chief Justice Roberts.
The Supreme Court has agreed to hear a larger share of First Amendment cases concerning conservative speech than earlier courts had, according to the study
prepared for The Times. And it has ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.
The court’s docket reflects something new and distinctive about the Roberts court, according to the study, which was conducted by Lee Epstein, a law professor
and political scientist at Washington University in St. Louis; Andrew D. Martin, a political scientist at the University of Michigan and the dean of its
College of Literature, Science and the Arts; and Kevin Quinn, a political scientist at the University of Michigan.
“The Roberts court — more than any modern court — has trained its sights on speech promoting conservative values,” the study found. “Only the current court
has resolved a higher fraction of disputes challenging the suppression of conservative rather than liberal expression.”
The court led by Chief Justice Earl Warren from 1953 to 1969 was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression
cases, only five, or about 8 percent, challenged the suppression of conservative speech.
The proportion of challenges to restrictions on conservative speech has steadily increased. It rose to 22 percent in the court led by Chief Justice Warren
E. Burger from 1969 to 1986; to 42 percent in the court led by Chief Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the Roberts court.
The Roberts court does more than hear a larger proportion of cases concerning conservative expression. It is also far more likely than earlier courts to
rule for conservative speech than for liberal speech. The result, the study found, has been “a fundamental transformation of the court’s free-expression
agenda.”
In past decades, broad coalitions of justices have often been receptive to First Amendment arguments. The court has protected
videos of animal cruelty,
hateful protests at military funerals,
violent video games
and
lies about military awards,
often by lopsided margins.
But last week’s two First Amendment blockbusters were decided by 5-to-4 votes, with the conservatives in the majority ruling in favor of conservative plaintiffs.
On Tuesday,
Justice Clarence Thomas wrote for the majority
that requiring health clinics opposed to abortion to tell women how to obtain the procedure violated the clinics’ free-speech rights. In dissent, Justice
Stephen G. Breyer said that was a misuse of First Amendment principles.
“Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American
public, obscure, not clarify, the true value of protecting freedom of speech,” Justice Breyer wrote.
On Wednesday, in announcing the decision on public unions, Justice Samuel A. Alito Jr. said the court was applying settled and neutral First Amendment
principles to protect workers from being forced to say things at odds with their beliefs. He suggested that the decision on public unions should have been
unanimous.
“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such
effort would be universally condemned,” he wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing
support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would
seriously argue that the First Amendment permits this.”
In response, Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she
said, should brace itself.
“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost
all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’
choices.”