Once again, our nation is faced with the painful process of sorting through grave sexual assault allegations against a powerful man. Once again, the public assessment of the veracity of those claims is lining up all-too-neatly with the partisan needs of the moment. Those who object to the rush to judgment against the accused will often ask if how we’d respond if, say, Joe Biden or Brett Kavanaugh was someone you loved. What if he was your father or grandfather. Would you feel like they’d been treated fairly?
The counter is quick. What if Tara Reade or Christine Blasey Ford was someone you loved? Can you imagine how you’d feel as they mustered up the courage to tell a dreadful story and then you watched them endure the inevitable slings and arrows of scorn, hatred, and mockery?
But there’s a different, better construct. What would the world look like if an imperfect population that possessed imperfect knowledge loved them both?
As some readers may know, last year I was cast into the middle of a comprehensive political argument about the future of conservatism. At issue was nothing less than the tactics, morality, and philosophy of the conservative movement. At issue was classical liberalism itself. On the one side were those who argued that the American system of government—conceived as it was (however imperfectly) in liberty—was destructive tothe common good. The injustices and immorality that exist all around us (drag queen story hours were used as Exhibit A of the failure of the American system) were evidence of the degrading effects of a political philosophy that emphasized freedom and individuality.
I must confess that I was not prepared to be thrust into the middle of a debate about the future of the American form of government. My training isn’t in philosophy but in law. Others were better equipped to defend liberalism as conceived. My entire life’s work was liberalism as applied. In other words, as a civil liberties litigator, my work centered around putting the legal flesh on the philosophical bones of the great pronunciations of American revolutionary and constitutional history.
Moreover, given that professional history, I perhaps erred in focusing relentlessly practical arguments (what’s your alternative to current First Amendment jurisprudence?) as opposed to more fully explaining the fundamental justice of the American system and how so very many of our great failings have occurred when we’ve departed from our constitutional ideals, not when we’ve complied with them.
Even more importantly, it’s worth explaining how the social compact outlined in the Bill of Rights—and amplified in the Civil War amendments—is the closest thing the mind of man has devised to creating a biblically sound system of government in the modern history of the human race.
In my defense of the American founding, a number of Christian thinkers took issue with the importance I placed on liberty as a primary value. I have repeatedly and enthusiastically quoted these words from the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
While these Christian thinkers appreciate the Declaration’s high view of humanity, they quite rightly don’t look at Jefferson’s work as equivalent to the word of God. Instead, they urged me to focus on the biblical mandate given to rulers time and time again in scripture. “Protect liberty” isn’t the mandate. Instead, it’s to “do justice.”
For example, consider Micah 6:8, a scripture I quoted in my Sunday newsletter last week: “He has told you, O man, what is good; and what does the Lord require of you but to do justice, and to love kindness, and to walk humbly with your God?”
From Genesis 9 to Romans 13 and in many places in between, the emphasis on justice shines through. In a piece last September, Baptist scholar Jonathan Leeman provided multiple examples of exhortations to Israel’s kings that highlight the king’s duty to do justice:
“So David reigned over all Israel. And David administered justice and equity [righteousness] to all his people” (2 Sam 8:15).
Israel “stood in awe of the king, because they perceived that the wisdom of God was in him to do justice” (1 Kings 3:28).
“Because the Lord loved Israel forever, he has made you king, that you may execute justice and righteousness” (1 Kings 10:9).
“By justice a king builds up the land” (Prov. 29:4).
This is an entirely fair point—but it’s worth noting that protecting liberty is not only just on its own terms, protecting liberty also facilitates and protects the continued quest for the “more perfect union.”
Let’s put it this way—the Declaration of Independence was American classical liberalism conceived. The Constitution is American classical liberalism operationalized. The Bill of Rights and the Civil War amendments represent the indispensable foundation of American justice.
(By the way, I’m going to get back to Joe Biden and Brett Kavanaugh. I promise.)
Let’s start with the concept of equality—not that all men and women are entitled to equal station in life (there is only one greatest basketball player of all time, and his name is LeBron), but rather that all men and women are of equal worth. “All men are created equal” says Jefferson in the Declaration of Independence. The 14th Amendment then operationalizes that principle by declaring that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
To say that all men and women enjoy equal protection does not tell us what is the best health care policy or tax structure for advancing the common good. It does, however, establish a principle of justice—that policy should be oriented towards the reality of equal human worth—as well as an obligation of law, that states cannot invidiously discriminate against their own citizens.
Jefferson enumerated “life, liberty, and the pursuit of happiness” as mankind’s “unalienable rights.” The Bill of Rights operationalizes that declaration by protecting rights of free speech and religious liberty from state encroachment, and protecting life and liberty from arbitrary state punishment or from state cruelty and malice.
Again, preserving equal access to those rights isn’t merely just by its own terms, it facilitates the pursuit of justice and the common good. Let’s take free speech, for example. There are those who decry the First Amendment when it protects speech they don’t like or find hateful or blasphemous, but the marketplace of ideas is also where we expose hate and unreason to critique and defeat.
There is a reason why the great abolitionist Frederick Douglass called free speech “the great moral renovator of society and government.” He continued to say free speech, “of all rights, is the dread of tyrants … Thrones, dominions, principalities, and powers, founded in injustice and wrong, are sure to tremble, if men are allowed to reason of righteousness, temperance, and of a judgment to come in their presence.”
Due process is just, and it’s indispensable to the pursuit of justice. It is the answer to the question at the start of this newsletter—in the most fraught of claims and the most vicious of crimes—What if we loved them both? What if both accused and accuser were of equal worth? When we consider the right to bring a claim, the requirements of evidence, and even the time limits imposed on cases (given the difficulty of both defending against and proving very old allegations), we not only humbly acknowledge our inability to peer into a person’s soul to discern truth, we also acknowledge that even the mightiest man can and should be brought low when the evidence dictates.
But protecting due process (like protecting free speech) is hard. Just as permitting bad speech is a necessity for maintaining the larger, just legal structure of free speech—individual injustices can also protect the larger, necessary structure of due process. This is what happens when a murderer walks free after his own constitutional rights were violated, or when even meritorious claims are barred by statutes of limitation.
Resting behind each one of the key assertions of liberty in the Bill of Rights is the implicit declaration, “I am not God.” I can’t look into a man’s soul and discern guilt or innocence. I cannot look at the complexities of law and policy and unerringly discern the common good. Complying with the Constitution is how fallen people both preserve and seek justice when truth is difficult to discern.
Now, let’s bring this back to Joe Biden and Brett Kavanaugh—to Tara Reade and Christine Blasey Ford. I know that neither controversy was or will be resolved in a court of law, where due process is formalized and mandatory. But I also know that the obligation to “seek justice” is personal and cultural as well as political and legal. The core elements of justice in our American system—which rest in eternal truths of human worth and human fallibility—are also applicable to our moral obligations as citizens when we “judge” these public disputes.
Each person involved in the controversy is of equal worth, a human being created in God’s image. That means the accusers have a right to bring their claim and be heard, respectfully and fully. That means the accused have their own rights to defend themselves, and a presumption of innocence is wise. Our own extreme fallibility and inability to peer into a human soul means that we should diligently seek external evidence that corroborates or rebuts any allegation or defense.
Moreover, the difficulty in proving or defending old allegations, means that we should ask adults to make complaints on a reasonably timely basis, even when filing complaints takes courage.
It is true that our culture has frequently failed women. It has failed in the obligation to treat them with respect or to fully hear or fairly consider their claims of terrible crimes. It is also true that our culture has also failed men, especially black men. There are simply too many terribly tragic tales of men dying at the hands of a mob in the face of an unsubstantiated claim of sexual misconduct. Even today, there are echoes of that awful injustice in the way in which black men are treated in campus courts.
But the answer to historical injustice isn’t another, equal and opposite injustice. That’s the score-settling that leads to endless ideological and partisan conflict. Instead, the answer is to discern the correct standard, and hew to it as closely as we can. Conservatives should not seek “revenge” for Brett Kavanaugh. Progressives should not give in to the temptation of believing a Democrat through highly-subjective judgments of “demeanor” or “temperament.” That’s the God’s-eye view. And human beings are terrible at playing God.
Due process is just. It concretely recognizes the equal worth of every member of the American family. Due process is also how we seek justice. It’s our best method of discerning the truth of contentious claims. The principles of the Bill of Rights represent the way in which a fallen people pursue a divine command.
One last thing …
I’m not sure why, but lately I’ve been listening to music that I listened to years ago—including songs by the late Rich Mullins, old songs by Michael Card, and this song. It’s by Robin Mark, and I remember listening to it at the bedside of a dear friend as he lay dying from cancer. It’s beautiful and meaningful, especially at a time when death and disease still stalk our land:
Photograph of Joe Biden by Getty Images. Photograph of Tara Reade by the Associated Press.