The current state of political discourse is hardly healthy. Partisanship is alive and well, thriving in our gridlocked Congress and the media outlets that seem to derive perverse pleasure from skewering the other side. When we wax poetic about the liberal ideal of free speech in an open discourse, is this what we really mean? Are constant mudslinging and personal attacks a foundational part of our political dialogue? The answers would theoretically be no, but theory and practice are only the same in theory.
On Monday, September 29th, the James Madison Program at Princeton hosted an event featuring Professor Robert George and columnist George Will on the topic of “Higher Education and the Intellectual Culture: Is Reform Possible?” While Will reminisced about the past, Professor George expressed concern for the future of conservative ideas on college campuses. Citing last year’s protests against graduation speakers at a number of universities including Rutgers, Smith and Haverford College, George professed the need for a political environment in which anyone could speak, no matter their place on the political spectrum. He and Will agreed that the cause of the current shift towards anti-conservatism was largely based on a new conception of harm.
Instead of direct physical, monetary, or political harm to individuals, this new conception is dignitarian harm. Historically, dignitarian harm had to do with physical attacks and has been extended to slander, libel, and other attacks on a person’s dignity.
However, for George, this new conception has become to broad. It can now describe any psychological harm inflicted through public or private speech. Professor George did not go into specifics, but examples are not hard to find. Speaking out against homosexuality or affirmative action is now likely to be characterized as harmful and therefore unacceptable speech.
This new notion of harm, George said, promotes shutting the door on open dialogue and contradicts the idea of freedom of speech within public discourse. Yet in calling for change in this environment, what many conservatives like Professor George do not account for is the origin of the environment they identify as toxic.
When the James Madison Program puts the word “Reform” in the title of the event, it signifies a need to change something in contemporary culture. What it fails to realize is that the intensity of today’s anti-conservative rhetoric, especially within universities, but also at large, is also a kind of call for reform.
Many young liberal activists see themselves as trying to fix the problem of insensitive, even hateful, socially conservative ideals. For the liberal side, these ideals seem bigoted, and expressions of bigoted ideals are harmful.
For Professor George’s call for change in political discourse at large to have any effect, it needs to take this into account. He may believe that this kind of dignitarian harm is silly and unnecessary, but it is gaining public support and winning political influence. Conservatives need to realize that ultimately, the more radical iterations of their ideas heavily influence the way conservative opinions are received as a whole. Professor George can carry the cross of conservatism back into the fray of liberal reform, but before he does, what conservatives really need is their own Council of Trent. Conservatives need counter-reform.
Take, for example, a recent exchange over the decision of the Supreme Court on same-sex marriage. On October 6th the Supreme Court declined to hear seven same-sex marriage cases that would have affected five different states. As a result, appeals-court rulings that permitted same-sex marriage in Indiana, Oklahoma, Utah Virginia, and Wisconsin were upheld. This raised the total number of states that allow same-sex marriage to 24.
Professor Matt Franck, a current preceptor for Professor George’s own Constitutional Interpretation class, believes that the Supreme Court’s decision to avoid a decision on these appeals is analogous to the Dred Scott decision.
Professor Franck is a political scientist at the Witherspoon Institute and a well-respected scholar of constitutional law and political philosophy. And yes, he did mean Dred Scott v. Sanford (1857). Just a few years before the civil war, this Supreme Court decision determined that African Americans were not citizens. In a blog post in the National Review Online’s Bench Memos section, Franck compared that case, which turned slaves—human beings—into the property of their white owners, to the appeals court decisions on same-sex marriage.
Unsurprisingly, some people were incensed. Did Franck really believe that legally recognizing the right for an individual to marry the person that they love, regardless of sex, was akin to allowing slavery? Ian Millhiser of ThinkProgress certainly thought so, calling the piece “The Most Offensive Response to the Supreme Court’s Expansion of Marriage Equality.” The twitterverse promptly let Franck know its opinion; one user named him “asshole of the day.”
The following day, Franck issued a terse response with six defenses of his original comparison. He offered a variety of arguments– about constitutionalism, a definitional defense of marriage, and even a clarification of his own reasoning. A constitutional scholar, he was making an argument only about constitutional law. Franck was not comparing same-sex marriage to slavery; he was comparing methodology.
I met with Franck to further clarify his argument. As he points out in the two response pieces, same-sex marriage decisions, like Dred Scott, can be viewed as examples of courts asserting themselves where they do not belong. Franck asks whether the Supreme Court, or any court for that matter, should be making decisions on the biggest moral questions of our time.
Franck’s argument engages with the idea of substantive due process, a reading of the 5th and 14th Amendments as protecting certain rights, life, liberty, or property from government interference without “due process.” Dred Scott was the first use of the doctrine, protecting the right to an individual’s property in the form of a slave. However, for Franck and many other scholars, substantive due process is a misreading. The “due process” of the Amendments should only apply to procedural due process. Each individual has a right to fundamental fairness in civil or criminal proceedings. Examples include the right to an unbiased trial and the Miranda Rights. Substantive due process, in Franck’s opinion, is a “laughable oxymoron.”
Admittedly, Franck has an argument with which many constitutional scholars would agree. He is not making an outright attack against anyone, specifically those who support gay rights. And he is not an idiot. So, what is the problem with Franck making this comparison? Shouldn’t the average reader with a simple con-law background understand the arguments that he is making? The problem comes with Franck’s mode of expression. It is possible for an academic to explain an argument about constitutional law without sounding like a jerk.
Although he knows what he is talking about and could run circles around most when it comes to Constitutional law, Franck’s rhetoric baits liberals who are ready and willing to attack conservative opinions. When he clearly states in his third piece, “None of us, so far as I know, thinks [state recognition of same-sex marriage] is as bad as treating human beings like chattel property,” he is trying to clear the air. But what happens when he continues by asking, “There, now, is everyone happy?” The embittered tone is unnecessarily combative. The first response he gave to Millhiser’s piece in ThinkProgress was couched in the same rhetoric. He begins, “Millhiser can claim to have mastered only one form of argument, the ad hominem, so let me enlighten him further,” and closes “Here endeth the lesson for Mr. Millhiser.” These two claims of absolute intellectual superiority bookend his six points of argument and represent the tone of the piece as a whole.
Throughout the “lesson,” Franck writes like a teacher shoving facts down an unwilling student’s throat. Calling same-sex marriage a “false anthropology,” he leaves no room for debate; it is, quite simply, not a part of human nature. He goes on to say that same-sex marriage rulings degrade individual freedom “to live, work, and learn in communities, schools, universities, and other organizations in which people can live the truth about marriage.” The Franckian lesson plan seems to consist of a kind of elementary school true-false test. And in Franck’s classroom, the only question is “marriage is between a man and a woman,” and the only answer is capital T, “True.”
In Franck’s defense, Millhiser’s piece offered almost no argument and missed most of the legal arguments. But Franck, casting himself as the teacher and Millhiser as his simple-minded student, is actually the one who shows his mastery of the ad hominem. Franck is an academic. He is making an argument. And yet he insists on needless name-calling.
When I asked Franck why he would consciously choose to use an aggressive tone, his only response was that I should to try and understand his situation. The first time he heard of Millhiser was a tweet in response to his original piece saying simply, “You are truly an idiot RT @MatthewJFranck…” Franck explained that these types of interactions are common on the internet: “The world of blogging has always been characterized by sharp elbows. Twitter attaches razor blades to sharp elbows.” Yes, Millhiser’s tweet is representative of a generally regrettable state of contemporary political discourse, especially on social media. But Frank’s response is emblematic of the situation that many conservative thinkers find themselves in today.
American liberals tend to believe that social conservatives are, to speak bluntly, racist homophobes lacking empathy and living in a bygone era. Despite what Professor George may think about dignitarian harm, this prevailing sentiment is the driving force for what he has correctly diagnosed as “anti-conservatism,” pushing ideas out of the political discourse and deeming them as unfit for practical discussion. These effects are only exacerbated when conservatives use belittling rhetoric and boastful appeals to intellectual superiority.
What happened to the conservatism that called for rugged individualism in defense of laissez-faire capitalism? Where are the calls for the importance of traditional family values in the face of a changing society, or the free market principles that serve as the foundation for supply-side economics?
Conservatives have long been very good at fine-tuning their rhetoric to garner support. They spun the issue of abortion by declaring themselves “pro-life.” Abortion, they told us, is not about women’s rights, it is about whether or not you accept killing a human being. The “pro-life” label sidesteps charges of misogyny. Positive rhetoric in favor of one’s own ideals, as opposed to personal attacks on the other side, is a lost art form that conservative America may want to rediscover.
It is too easy for the general public to assume that Matt Franck is expressing a bigoted view of the law in comparing Dred Scott to gay marriage. It does not matter if there is substance to his argument. It does not matter that he has something to teach all of us about the law, morality, or his beliefs, because when Professor Franck responds to being called an idiot with pedagogical snobbery, he becomes the asshole of the day—not because of his comparison between Dred Scott and same-sex marriage, but because he validates the stereotype of the egotist conservative. All we hear is “I’m right, you’re wrong, and I’m not going to change my views.” When conservatives come off as lacking any shred of empathy, it seems like a lost cause to even engage with them in discussion.
The state of today’s political discourse is disappointing on both sides. Unfortunately, it is probably only going to get worse before it gets better. I will not pretend to defend the idea that endemic demonization of one half of the political spectrum is appropriate. Professor George is correct to state that conservative ideas, even ones deemed ignorant by the liberal wing of society, do have a place at the table. The free exchange of ideas is how a country moves forward politically and socially.
I do not agree with the majority of socially conservative positions. I even find some of them totally objectionable. But when we refuse to engage with ideas seriously, we lose the opportunity to understand where these ideas came from. We take away our own ability to empathize with the very people we accuse of lacking empathy.
There are uncomfortable political realities that conservatives must face. Slowly but surely, American society is becoming increasingly liberal. Conservative ideas are falling out of favor, a development that some see as progress. If conservatives want their ideas to survive, the burden of proof falls on them to show that they are not bigoted. Instead of responding to critique with righteous anger, conservatives need to show why their positions have merit; they need to prove the assumptions wrong. Simply put, conservatives need to start playing nice– even if it hurts their pride.