Among the many things that drive me up the wall (I’m close to the ceiling most of the time) is the common inability to distinguish between bigger government and inappropriately intrusive government. What the Founders feared was a government that invaded the individual liberties of citizens, not a government that established new agencies to deal with new problems.
This isn’t, I hasten to say, a misconception held only by Republicans. I still remember a friend who worked for the state during the Evan Bayh administration. His small agency was addressing the then-emerging problems of HIV. The federal government instituted a program that would have paid to place two more desperately-needed personnel in his agency–including the overhead costs of their employment. He was told he couldn’t take advantage of that program because Bayh didn’t want exposure to the accusation that state employment had increased during his term in office.
I think about that persistent bias against numerical growth–the very common inability to differentiate between the growth of power and authority and an increase in manpower–whenever I read about Musk’s determination to slash the size of government while blithely erasing limits on its authority.
In the late 19th century, the government chemist Harvey Washington Wiley proved several shocking suspicions about the American food supply as correct: Milk was routinely thinned with dirty water, coffee contained bone, ground pepper was full of dirt, cocoa was packed with sand, and cayenne was loaded with brick dust.
The findings turned Wiley into a crusader for food safety, and by 1906 Congress finally agreed that regulations were needed. With the passage of the Food and Drugs Act and the Meat Inspection Act, the United States created the framework for a federal system to test ingredients, inspect food factories and recall unsafe products.
This system has been criticized as seriously underfunded and often overcautious. But it has prevented a return to the fraudulent and poisonous food supply of the 19th century, which one historian called the “century of the great American stomachache.” That is, until recently, when the Trump administration began to unravel that safety net.
When this nation’s Founders wrote the Constitution, most Americans still grew their own food. If mom wanted to cook chicken for dinner, she was likely to go out in the yard and wring the neck of one of her flock; if that chicken was ill, the consequences were her responsibility. When food preparation became an industry, responsibility for product safety became a communal issue. The representatives of We the People decided (properly, in my view) that government had an obligation to regulate that production.
Our mad king doesn’t recognize that responsibility, and we are all endangered by the heedless effort to reduce government employment and responsibility.
Along with its other ill-considered actions, the administration has been targeting food safety programs for “downsizing.” As the linked article notes, last month two Department of Agriculture advisory committees that had provided guidance on fighting microbial contamination of food as well as meat inspection protocols were simply shut down. (If that wasn’t dangerous enough, the administration also expanded the ability of some meat processors to speed up their production lines–a provision that makes it more difficult to carry out careful inspections.)
The administration also delayed a rule that would have required both manufacturers and grocery companies to quickly investigate food contamination and pull risky products from sale. At the start of April, thousands of federal health workers were fired on the orders of Health and Human Services Secretary Robert F. Kennedy Jr.; a plan called for terminating 3,500 employees at the Food and Drug Administration — a move that he welcomed as a “revolution.” Consumer watchdogs and others described it as a safety blood bath.
Of course, it isn’t just food safety. Or drug efficacy. The Founders didn’t envision an FAA, either. Forgive me for wondering whether the recent rash of air mishaps is connected to the “downsizing” of that agency. And while the MAGA morons dispute the reality of climate change–okay, the utility of science generally–the EPA also protects the water we drink and the air we breathe from industrial pollution, among other things that didn’t exist in the 1700s. The list goes on.
The threat to individual liberty doesn’t come from the employment of officials to monitor food and drug safety, or oversee air traffic. The threat comes from autocrats unwilling to respect the constraints of the Bill of Rights.
Okay, okay…I hate smart-alecks who say “I told you so”– and now I’m one of them.
During my twenty-one years as a university professor, I constantly talked (well, ranted) about the American public’s lack of civic literacy–Americans’ gob-smacking lack of knowledge of our national history and constitutional structure. I established a Center for Civic Literacy at IUPUI (now IU Indianapolis), where researchers documented the gaping holes in public understanding of even the most basic elements of the country’s legal and political structures.
That public ignorance is largely responsible for our ignorant, embarrassing and very dangerous President.
David French connected those dots in a recent “conversation” among opinion writers for the New York Times. The writers had been discussing whether people cared about Trump’s assaults on America’s most fundamental philosophical commitments, and French pointed to the elephant in the room (pun intended): civic ignorance.
I really wish those of us who follow politics very closely understood more, because there’s a another question besides “Do people care?” and that is “Do people know?”
French noted that one thing that distinguishes Trump from other presidents “is the extent to which he has weaponized and exploited civic ignorance.”
One of the things that I think we’re learning is how much the American experiment has depended on the honor system. That presidents of both parties, with varying degrees of truthfulness and honor, by and large, maintained American norms and did not explicitly weaponize American ignorance in the way that Trump has.
I think what Trump and the people around him have realized is that he can do wild things, like some of the executive orders that will thrill MAGA and, of course, enrage his opposition. But then outside MAGA, there won’t be a ripple that any of this occurred at all.
Those American norms were rooted in the political philosophy that undergirds the Constitution and the Bill of Rights–a particular approach to the purpose of government, and especially to the importance of restraints on the exercise of government power. When a majority of the population doesn’t understand that philosophy and/or the centrality of those restraints, would-be dictators emerge.
I have previously posted about the importance of language and the effects of imprecise usage. An example is the way in which the term “limited government” has been transformed from the meaning given to it by the Founders into a belief in small government. The early American public insisted on passage of a Bill of Rights as a condition of ratifying the Constitution, and that Bill of Rights incorporates their insistence upon limiting the power of the state. (And since we are talking about words and their usage, I will note that “the state” in this context means government.)
If most citizens understood America’s foundational principles, today’s media propaganda would be far less effective–audiences would recognize when claims being made are incompatible with America’s constitutional structure. Fox News and its clones rely heavily on the civic ignorance of their viewers.
In our system, government is supposed to be limited (not small). Among other things, it cannot tell citizens what they can say, what they can read, what they must believe. Government may not base laws on any religion. It may not interfere with citizens’ activities in the absence of probable cause. It must guarantee criminal defendants due process, and may not impose unreasonable penalties on those who are subsequently found guilty.
In the wake of the Civil War, the 14th Amendment added further limitations. Probably the most important was the mandate of equal protection–government cannot treat different kinds of citizens differently. (That amendment also included a provision that anyone born on American soil is a citizen–a provision that can only be changed by Constitutional amendment.)
The original Bill of Rights also explicitly limited the authority of the federal government by providing that powers not expressly granted to the federal government are retained by the states and/or the people.
Trump and his racist MAGA movement stand in opposition to virtually the entire Bill of Rights. It is very likely they have absolutely no familiarity with, or understanding of, that document. Worse, the election of Trump is evidence–as if we needed it–that the majority of Americans (especially those who didn’t bother going to the polls) were unaware of the degree to which a Trump victory would be inconsistent with America’s founding principles; evidently ignoring the campaign rhetoric that clearly pointed to that inconsistency and threatened those principles.
Too many Americans simply fail to understand that–far from making America great– Trump is intent upon destroying the genuine greatness to which America has aspired.
The brilliance of Tim Walz’ response to the GOP’s culture war is that it put a foundational element of the Bill of Rights into everyday language.
“Mind your own damn business” is a more direct expression of that underlying philosophy than the one that I used in my classroom–“Live and let live.” As I have posted innumerable times on this blog, the Bill of Rights, taken as a whole, is based on the libertarian premise that individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of someone else, and so long as they are willing to accord an equal liberty to their fellow citizens.
Government’s role is to protect our individual liberties while keeping the strong from abusing the weak.
Adherence to that philosophy means that even if you strongly disagree with your neighbor’s choice of religion or life partner or reading material, you mind your own damn business. You don’t try to get the government involved in the absence of harm to nonconsenting others. You don’t try to use the power of the state to impose your own religious or lifestyle preferences on your neighbor–and he doesn’t get to impose his on you.
Live and let live.
The current iteration of the GOP has utterly abandoned fidelity to that limited government principal. The culture war being waged by the MAGA Christian Nationalists is all about punishing–or at least burdening–life choices with which they disagree. The latest–and yes, weirdest–example is JD Vance’s insistence that women who don’t produce biological children should be socially and legally disfavored. (Vance has even proposed that people with children be rewarded by giving them “extra” votes.)
These very unAmerican approaches to policy disputes also tend to be delivered in the nastiest possible way. As the Bulwark recently noted,
Consider the latest weird statement by JD Vance to emerge. Vance disagrees with the education policies pushed by the American Federation of Teachers and its president, Randi Weingarten. He doesn’t like Weingarten’s political activities either. Fine. That hardly makes him unique among Republicans.
But apparently he can’t just say that. He has to attack her personally. Weingarten, it seems, doesn’t have children. And Vance has a view on that. What’s more, he has a view on the character and effectiveness of teachers who have kids and those who don’t, and has decided he’s “disturbed” by those who don’t.
One could ask, are the private lives of millions of teachers any of JD Vance’s damn business?
As the article proceeded to note, Vance obviously thinks so. But it isn’t just Vance–it’s a core belief of MAGA world that everything is their business.
For MAGA—as for other authoritarian movements of the left and right—the personal is the political. MAGA is about judging and disparaging other people, whole classes of people, whole groups of our fellow Americans…The routine slander of individuals and groups is part of the essence of the movement.
It is true that political disputes often get nasty. History is replete with examples of unfair accusations and various slanders leveled by candidates for office and their supporters. What the Bulwark reports in this particular case, however, gets to the essence of what is wrong with today’s GOP, and its devolution into White Christian Nationalism. There are a number of reasons to label that movement unAmerican, of course–any fair reading of the First Amendment and the Founders’ insistence on Separation of Church and State will provide the most obvious one. What is less obvious, but equally shocking, is the MAGA movement’s manifest belief that government should be able to dictate the personal behaviors of individuals even when those behaviors do not affect others.
So MAGA says government can force women to give birth. That government can prevent medical personnel from helping trans children. That government can remove library books that offend MAGA sensibilities, even though many other citizens want access to those books and no one is forcing the censors or their children to read them.
MAGA Republicans want government as busybody, despite the fact that such a role is entirely contrary to the foundational philosophy of this nation.
If, as I believe, real patriotism requires fidelity to our foundational philosophy– if it requires citizens to mind our own damn business in the absence of harm to unconsenting others– then MAGA culture warriors must be ranked as the most unpatriotic of all Americans.
I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.
Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.
Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!
Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).
Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.
Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…
The article debunked several aspects of the claim, and noted
This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”
“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”
“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”
By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.
As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.
Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”
In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)
Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority. Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.
But that step back didn’t merge state and federal justice systems.
Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.
The current wave of book banning efforts I referenced a few days ago reminded me of an essay I wrote about the importance of intellectual freedom some twenty-five years ago, for an ALA publication. I dug it out, and decided the observations were still valid–and, unfortunately, even more relevant. So– with apologies for both the length and self-citation– I’m sharing it.
_______________
Not too long ago, I had a conversation with a librarian involved professionally with issues of intellectual freedom. “Sometimes,” she said, “I get so tired of it. I wonder why I continue to fight.” I’ve thought about that conversation several times; if I could do an instant replay, I think I would tell her that I know why she keeps at it. It’s because it is so important.
I spent six years as Executive Director of the Indiana affiliate of the American Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.
If that statement seems extravagant, consider both the ideological basis of liberal democracy and the nature of contemporary threats to that tradition.
Our national history would have been impossible without the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.
Current assaults on that worldview come primarily, although certainly not exclusively, from communitarians of both left and right. Michael Sandel, Mary Ann Glendon and others complain that the American emphasis on individual rights has gone too far, that it is time to readjust the balance between individual liberty and the “common good.” The “common good” is presumably to be defined collectively; that is, by the majority.
There is enormous appeal to this argument. In a world that seems increasingly complex, impersonal, and litigious, a world over which individuals have less and less control, the notion of “community,” like “family,” offers nourishment and empowerment. Who does not long, in some part of her psyche, for a warm family, friendly neighborhood and supportive tribe, where one is valued and/or unconditionally accepted, and where everyone shares the same life goals and values? Freud suggested that the need to lose oneself in a collective identity is the most ancient, persistent and universal force operating on the human species. The problem, of course, is that majorities can be every bit as tyrannical as solitary despots, and there is no guarantee that my family’s values will be the ones that prevail, or that my tribes’ folkways will be the ones that are followed. The fundamental issue in every society is where to strike the balance between human liberty and communal norms. Ultimately, the debate comes down to a conflict between libertarian and collectivist visions of the good life.
In this war over competing worldviews, intellectual freedom is the battlefront. Discussions of the First Amendment often proceed as if the expressive freedom provisions are separate from the religious liberty clauses. They aren’t. In fact, the First Amendment rests upon a magnificent unifying premise: the integrity and inviolability of the individual conscience. The First Amendment is really an integrated whole, protecting our individual rights to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences. It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.
Our whole experiment with democratic governance rests on that foundation. As Alexander Mieklejohn famously observed, a nation that is afraid of an idea–any idea–is unfit for self-government. Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.
Those who oppose free expression rarely, if ever, see themselves in opposition to the western liberal democratic tradition. Most of the people who want to ban the book or painting, who want to protect the flag or the Virgin Mary from desecration, are simply acting on their belief in the nature of the public good. Censors see unrestrained freedom as a threat to the social fabric, while civil libertarians believe the greater danger consists in empowering the state to suppress “dangerous” or “offensive” ideas. Censors see no reason to protect expression of low value–no point in protecting the marketplace for the exchange of shoddy goods. They have enormous difficulty understanding the difference between protection of the principle of free speech and an implicit endorsement of the offensive material at hand. And they have little or no appreciation for the argument that once one hands over to the state the authority to decide which ideas have value, no ideas are safe.
I spent my years at the ACLU battling the usual, recurring attempts to control what others might read, hear or download. I attended a public meeting in Valparaiso, Indiana, where an angry proponent of an ordinance to “clean up” local video stores called me “a whore.” I was accused of abetting racism for upholding the right of the KKK to demonstrate at the Statehouse. I was criticized for failure to care about children when I objected to a proposal restricting minors’ access to library materials. In each of these cases, and dozens of others, the people who wanted to suppress materials generally had the best of motives: they wanted to protect others from ideas they believed to be dangerous. To them, I appeared oblivious to the potential for evil. At best, they considered me a naïve First Amendment “purist;” at worst, a moral degenerate.
My introduction to the politics of free speech really came several years before my stint at the ACLU, when I was retained as local counsel to the plaintiffs in American Booksellers v. Hudnut. The case involved a challenge to an ordinance drafted by Catherine MacKinnon, a law professor, and Andrea Dworkin, a feminist author. Both are well known crusaders against pornography, which they define quite differently than the law defines obscenity, and which they argue is more harmful to women than to men. Their ordinance attempted to define as action (rather than expression) sexually explicit materials depicting the “subordination of women.” Such “action” was then treated for legal purposes as sex discrimination. (“When I use a word,” said Humpty Dumpty, “it means exactly what I say it means!”) MacKinnon and Dworkin had shopped their proposal around the country without much success before they found eager proponents in Indianapolis.
While the Courts would make short work of the ordinance, the politics of its passage was an eye-opening experience. Bill Hudnut was, and remains, a close personal friend; I had been the Corporation Counsel (chief lawyer) in his administration. To this day, despite lengthy conversations, he does not see the implications of the ordinance he signed. Bill had been an active Presbyterian minister before assuming office, and simply was appalled by materials that he felt degraded women. When MacKinnon and Dworkin enlisted a local female Councilor on behalf of their pet project to “protect” women, he was supportive. The Councilor has not been identified with women’s causes either before or after her sponsorship of the ordinance. She has, however, been supportive of efforts to restrict children’s access to videos in the public libraries, and has generally been an ally of the religious right. Her alliance with MacKinnon and Dworkin, widely considered to be “radical feminists,” was surreal.
On the evening the vote was taken, busloads of people from fundamentalist churches filled the Council chambers. To the eternal credit of Indianapolis’ women’s organizations, there was no support from local feminists. Only three people had been given permission to speak against passage–me, as a courtesy shown to a former member of the administration; Bill Marsh, a professor of Constitutional law who was then Vice-President of Indiana’s ACLU; and Sam Jones, the Executive Director of the Urban League. Even Councilors who had great qualms about the ordinance were unwilling to stand against the sea of faces from area churches. (The trouble with representative government, as a friend once bitterly remarked, is that it is representative.) One after another, uncomfortable Councilors rose to “explain” their votes; my favorite came from a longtime friend, who said that —while he had “great respect for Mrs. Kennedy’s legal opinion”–he wanted the record to show that he was “against pornography.” The crowd cheered approvingly.
Most of those who voted for the ordinance knew it stood virtually no chance in court. They were willing to spend some tax dollars to defend it, in order to avoid the pain of opposing the righteous folks who had taken the time and trouble to attend the meeting. And the courts did as expected; Judge Sarah Evans Barker issued an eloquent, ringing endorsement of the principles of free speech in her District Court opinion striking down the measure. The Seventh Circuit and Supreme Court each affirmed, and the case has since become a staple in courses on Free Speech and Constitutional Law.
In many ways, American Booksellers v. Hudnut is a perfect example of what the Founders feared when they warned of “the tyranny of the majority” and the need to guard against popular passions. The majority of citizens saw the debate in very simple terms, as did my Councilor friend: one is either for or against “pornography.” Quibbles about what pornography is, concerns about vagueness or over-breadth, were dismissed as lawyer weaseling; like Potter Stewart, they might not be able to define pornography, but they knew it when they saw it.
For civil libertarians, of course, the issue was very different. We were not arguing for the value of pornographic speech–although we were more open to the possibility that pornographic expression might, in fact, have some value. The issue was–and is–our right to decide for ourselves what books we shall read, what ideas we shall consider, what opinions we shall hold, free of government interference. Once the state asserts a prerogative to determine which ideas we may entertain, the balance has shifted from the right of the individual to the power of the government. At that point, citizens no longer have rights, but privileges that may be revoked whenever the political winds shift. For me as a civil libertarian, the issue is not which books I read; the issue is who decides which books I read?
The western democratic tradition literally depends upon the answer to that question.
Those of us who understand the nature of the debate over intellectual freedom in this way must contend with a formidable deficit in citizenship education. Both at the ACLU and at IUPUI, where I currently teach law and public policy, I have encountered widespread ignorance of the most basic elements of the American constitutional system. We desperately need to improve understanding of the theory of limited government and individual rights –not so that people will necessarily come to the same conclusions I reach, but so that we can at least argue about the same issues.
People try to remove materials from library shelves or the corner video store because they find the materials offensive. They try to prevent Klan marches because they disagree strongly with the hateful message of the Klan. Their arguments are against these particular ideas. They are not generally trying to strengthen the power of the state, nor intending to circumscribe the exercise of personal moral autonomy. Civil libertarians see those outcomes as inevitable consequences of censorship, however, and so those are the issues we address. In a very real sense, it is a case of culture warriors talking past each other.
People like my librarian friend, who see the fundamental relationship between the marketplace of ideas and self-government, who recognize the holistic nature of individual rights, simply must keep trying to make those connections visible to the general public. We must all work to raise the level of familiarity with the underlying principles of the Constitution and the Bill of Rights. We must agitate for more and better government instruction in our schools, and we must insist on more honest discourse from our political leaders and the media. We must constantly reinforce the lesson that the proper response to a bad message is not government censorship, but free citizens offering a better message.
Somehow, we must get the general public to understand that when we use the power of the state to decide what citizens may read or view, we aren’t censoring smut, or protecting children, or prohibiting blasphemy, or respecting the flag. We are undermining the values that lie at the very core of our national identity.
