Dear Reader (Especially those of you who aren’t currently subscribed to The Dispatch. Might I interest you in a free 30-day trial?),
God bless this liberal court.
I’m not trolling, I’m using the correct terminology.
Of course, by “liberal” I mean the original or “classical” understanding of the word.
I know that most readers know what I mean by classical liberalism. But since I am in back-to-basics mode these days, I’m going to assert author’s (and editor’s and co-founder’s) privilege and go down a rabbit hole for a moment. (Again if you can’t read that G-File, you can with this trial offer!)
Liberalism vs. “liberalism.”
The American use of “liberal” as a synonym for “progressive” is a relatively recent invention.
In the 1930s, progressives needed a new brand name because they had exhausted the p-word like an old horse that had no giddy-up left. So, led by FDR, they started using the word “liberal.”
This also created an opportunity for the hard, communist-sympathizing left to adopt the “progressive” label for themselves. Tensions between progressives and liberals came to head in the mid-1940s when the Progressive Party, a quasi-communist front led by Henry Wallace, and liberal Democrats, centered around Americans for Democratic Action, went to war with each other. Regardless, the term liberal was not owned by left or right prior to the middle of the 20th century. Even folks like Robert Taft and Joseph McCarthy used “liberal” positively into the early 1950s. But by the end of the decade, liberal became the widely accepted ideological signifier of the left. It wasn’t until the early 2000s when the term had become problematic that the word “progressive” was revived as the go-to-word for the mainstream left.
In 2007, when Hillary Clinton was asked in CNN/YouTube debate if she considered herself a liberal, she gave a revealing answer:
You know, it is a word that originally meant that you were for freedom, that you were for the freedom to achieve, that you were willing to stand against big power and on behalf of the individual.
Unfortunately, in the last 30, 40 years, it has been turned up on its head and it’s been made to seem as though it is a word that describes big government, totally contrary to what its meaning was in the 19th and early 20th century.
I prefer the word “progressive,” which has a real American meaning, going back to the progressive era at the beginning of the 20th century.
I consider myself a modern progressive, someone who believes strongly in individual rights and freedoms, who believes that we are better as a society when we’re working together and when we find ways to help those who may not have all the advantages in life get the tools they need to lead a more productive life for themselves and their family.
So I consider myself a proud modern American progressive, and I think that’s the kind of philosophy and practice that we need to bring back to American politics.
I used to have great fun with this. The idea that the original progressives weren’t in favor of big government is laughable—as is the idea that Hillary Clinton is an opponent of big government. It also leaves out the fact that those progressives she harkens back to were overwhelmingly racists. The whole answer defeats itself in contradiction and stolen bases until you realize she was just looking for a label that didn’t scare people.
Three kinds of liberalism.
I disagree with Alan Wolfe on quite a few things, but I think it might be useful to quickly explore his three kinds of liberalism: substantive, procedural, and temperamental. Substantive liberalism is closest to what most people mean by libertarianism: “As many people as possible should have as much say as is feasible over the direction their lives will take.” Equality is a major component of substantive liberalism. All people have innate dignity and autonomy.
Procedural liberalism, as it sounds, is the system we put in place to realize our substantive commitments. Constitutionalism, the rule of law, the idea that we all have the same civil rights: These are the practical safeguards of equality and liberty. But procedural liberalism is not “morally neutral.” It is imbued with the spirit of fairness and justice, rightly understood. For instance, the right to a fair trial is a profoundly moral concept, hard-learned over centuries of injustice. Get wrongly accused of murder or have the state seize your home and get back to me if you still think a right to a fair trial or getting your day in court is morally neutral.
Procedural liberalism has been attacked from the left and right at various times. Michael Sandel and Stanley Fish beat a lot of the New Right to their arguments by decades. Sandel has argued that a “procedural republic” prohibits the state from encouraging a more robust, morally infused conception of citizenship (call it leftwing integralism). Fish, a pioneer of many of the arguments inherent to Critical Legal and Critical Race theories, agreed with me that liberalism is not morally neutral, but he went much further, arguing that the impartiality of the law (which is often described as “neutrality”) is a mirage, and that what we call neutrality and fairness are really disguises for privileging the powerful or the forces of conservatism, racism, whatever. On both the left and right, the attack on the concept of “merit” derives from this line of thought—who decides what counts as “merit”?
In case you were wondering, I will not stop pointing out how much of the New Right either depends on, or is lamely reinventing, the illiberal ideas of the left.
And then there’s the liberal temperament. Much like the conservative temperament, this can be found across the ideological spectrum. Big-heartedness, openness to technological change, tolerance for different opinions and creeds are primarily expressions of psychology and character. Some of the most ideologically conservative people I know have liberal temperaments and some of the most leftwing people in the world have very conservative temperaments. Indeed, some of the worst aspects of what we call contemporary liberalism (i.e. progressivism) are its aversion to change, its pinched and dour defense of the bureaucratic status quo, and its closed-minded attitude toward innovation. Teachers unions, for example, are ideologically left but temperamentally conservative, reflexively opposed to innovation and anything that smells like creative destruction. Humorlessness is illiberal, and humorless people are distributed across the political spectrum. Clarence Thomas may be the most ideologically conservative member of the Supreme Court, but if you know anything about him, he’s temperamentally quite liberal.
As Sonia Sotomayor said last year:
Justice Thomas is the one justice in the building that literally knows every employee’s name, every one of them. And not only does he know their names, he remembers their families’ names and histories. He’s the first one who will go up to someone when you’re walking with him and say, “Is your son okay? How’s your daughter doing in college?” He’s the first one that, when my stepfather died, sent me flowers in Florida.
One useful way to think about it: The opposite of liberalism isn’t conservatism. Historically, much (though not all) of what we call American political conservatism is an effort to conserve American liberalism. If you believe the government should be bound by the rules laid out in the Constitution (including the amendments!), then you are arguing for conserving (or preserving) American liberalism. If you believe in the right of consenting adults to commit capitalist acts—or to refuse to for reasons of conscience—you are for conserving liberalism. In short, the opposite of political and philosophical liberalism isn’t conservatism—it is illiberalism. And neither the left nor the right have a monopoly on illiberalism.
Okay, so back to this liberal court.
Let’s start with the Dobbs v. Jackson Women’s Health Organization decision, now just a little over one year old. When the court overturned Roe v. Wade, some commentators dubbed it a “power grab” or “judicial activism.” But what did Dobbs do? It sent the abortion question back to the people. It didn’t ban abortion. It said that state legislatures (or, in principle, Congress) could regulate abortion. This, as Charlie Cooke often points out, is literally the opposite of a power grab. Roe, which imposed a uniform rule across the whole country, was a power grab. In Dobbs, the court relinquished that power.
Now, intellectual honesty requires me to concede that there is a liberal argument for total legalization of abortion. The ability of women to be masters of their own fate is constrained by laws that restrict what they can do with their own bodies. I think this is an intellectually and morally serious argument grounded in legitimate liberal claims of individual rights. But it is not an argument in favor of Roe. It is an argument for legalizing abortion, lawfully. But because the Constitution is silent on the issue and because there is ample history of regulation of abortion, the Supreme Court concluded that it has no business inventing a right that isn’t in the Constitution or supported by history or tradition.
There’s also the morally and intellectually serious argument that the principle of personal liberty inherent to liberalism is not absolute. Abortion involves ending a human life. We all understand that our freedom ends when it involves ending someone else’s life. I’m not arguing that abortion is murder. I’m simply acknowledging that there are liberal arguments on both sides of the debate. Liberalism is large. But there’s nothing liberal about the idea that the Supreme Court has unilateral authority to settle these questions. If you want the court to be run by priests and moral sages, you’re going to have to rewrite it—and stop appointing lawyers.
Now let’s look at this week’s decisions. In the affirmative action case, the court ruled that universities cannot racially discriminate against some groups in favor of other groups. Personally, I’m pretty much entirely in Thomas’ camp on these questions. But you don’t have to be to see the point. I think the whole argument around “diversity” is fundamentally dishonest and illiberal because it reduces people to their skin color or ethnicity while denying that’s what’s going on. I don’t see how so many people who instantly recognize “bad” racism as illiberal can be so blind to the illiberalism of “good” racism. If liberalism means anything it means treating people as individuals, not as avatars for racial categories.
More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard’s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. … It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness.
I understand Harvard’s intentions—remedying past discrimination, etc.—and I don’t think they’re intentionally bigoted or objectively ignoble. But the practice of distributing benefits to certain racial (or religious or ethnic) groups—and penalties to others—out of a desire to shape society according to your vision of the greater good is illiberal. It doesn’t matter what the content of that vision is—a secular society imbued by leftwing notions of social justice or a Catholic society imbued with rightwing notions of social justice—it’s still illiberal. And like all illiberal projects, the stated principles at play are almost always secondary to the real issue: the illiberal desire for arbitrary power to do what you want.
Which brings me to the court’s student loan decision. Once again, I should concede that there is a variant of liberalism that lends support to the effort. Liberals of a Deweyan or Hillary Clintonian stripe have long emphasized that education is a crucial tool for liberal ends, because education liberates people and creates opportunities for them. But this is not exclusively a progressive view. Sen. Tim Scott—who, contrary to Barack Obama’s musings, knows a great deal about racial discrimination—likes to say that education is the closest thing we have to magic, given its power to unlock the potential of the individual. That is a very liberal argument (it’s also conservative). So freeing people from onerous debt imposed by education has a liberal feel to it.
But here’s my problem. Not only do I think Biden’s scheme is wrong in every regard, but unlike with affirmative action, I struggle to even grant noble, if misguided, motives to it. If people with student debt were an important and disproportionate constituency of the Republican Party, it would never have occurred to Biden and the Democrats to lawlessly give them billions of dollars. Instead, we’d probably be hearing J.D. Vance, Marco Rubio, or Donald Trump telling us how important it is to liberate people from the shackles of student debt.
In other words, I think virtually all of the “substantive” arguments are overwhelmingly pretextual. Biden reminds me of H.L. Mencken’s line about Harry Truman. “If there had been any formidable body of cannibals in the country he would have promised to provide them with free missionaries, fattened at the taxpayers’ expense.”
But even if you agree with the ends on liberal grounds, Biden’s means are fundamentally illiberal. There is no law granting the president the power to unilaterally give people piles of money (spare me terminological or accounting flimflammery). Forgiving debt is the same thing as giving money (and not just because you can’t spell “forgive” without “give.”). In 2021 Biden said, “I don’t think I have the authority to do it by signing with a pen.” Now he says the court’s decision is “unthinkable.”
It’s all so profoundly cynical. If he succeeded, he’d reap the political windfall of transferring wealth to a vital constituency. Now that he’s failed—for now—he’s reaping the windfall of the populist anger he’s orchestrated.
Procedural liberalism is fundamentally about curtailing the use and abuse of “arbitrary power,” as Burke and Locke would say. The idea that the president can assert the power to reward constituencies with taxpayer dollars without any congressional or constitutional authorization is a form of monarchical or authoritarian thinking. Progressives would recognize it instantly if Donald Trump had announced that he was forgiving the car loans for every American who uses a pick-up truck for a living, on the unstated assumption that they tend to vote Republican. Never mind that such a policy would probably be fairer and less regressive.
One of the most illiberal things about the New Deal—and there was a lot of illiberalism in the New Deal, just ask Jacob Maged—was the effort to turn citizens and mediating institutions into clients of the state. You can play word games and call this Rawlsian liberalism, but Rawlsian liberalism is not classical liberalism, it’s an intellectual effort to make progressivism sound liberal.
Anyway, what’s truly amazing is that this liberal court asserted that Congress has the power and authority to forgive student debt if it wants. Again, the court’s decision isn’t a power grab, it’s an effort to return power to its rightful owner: Congress. And what is Chuck Schumer’s response? He refuses to accept delivery, saying he wants it forwarded back to the White House. The Senate majority leader wants the president to ignore Congress.
There was more liberalism on offer from the court. In Groff v. DeJoy, the court ruled that a mailman’s religious convictions were superior to the Postal Service’s priorities (a crude summary, I know, but I’m running long). In 303 Creative v. Elenis, the court ruled that free speech and free enterprise cannot be compelled. Contrary to a lot of bad media coverage (and there’s been so much!) the court did not rule on the plaintiff’s claim of free exercise of religion, only her free speech rights. And contrary to Sonia Sotomayor’s embarrassing dissent, the court did not “for the first time in its history” grant “a business open to the public a constitutional right to refuse to serve members of a protected class.” It ruled that the state cannot compel speech involuntarily from a web designer. It was stipulated by both sides that she would do work for a gay client, she just wouldn’t make a same-sex marriage site. I wouldn’t have that policy. But freedom of expression—not to mention free enterprise—has to mean the freedom not to express things you don’t want to express. As Neil Gorsuch wrote, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”
That’s liberalism for you.
Various & Sundry
Canine update: My iPad generates random photos for me from time to time. Last night it showed me a picture of Cosmo the Wonderdog near the end of his days, and it really hit me how much I miss that guy. There were some wonderful responses, but I really loved this one. “Cosmo was the man! Dude was legendary among the DMV community. Friend. Watch dog. Shenanigator. Party animal.” Anyway, the girls are doing fine, even if Zoë remains a little Jeb Bushish and I dared to leave town for a day. Pippa, always on the lookout for novel ways to beat the heat, discovered the glories of zooming through the neighbor’s sprinklers. Oh, and I received a report from Weehawken where my mom’s cats remain well cared-for. Paddington has decided that he is a bowl cat, and will hear no objections.
And now, the weird stuff