The Importance Of The “Golden Mean”

I was struck by an observation recently posted to a listserv on which I participate.

Someone had observed that draconian restrictions imposed by the Chinese seemed to have “flattened the curve” and slowed transmission in that country. He wondered whether Americans would comply with similar directives, and someone else responded that the U.S. is a very individualistic society, built on the idea of individual rights, so, this would be a big test: Would people in America sacrifice some individual liberty for the good of the community? Asian societies, he noted “are more based on the group, the collective. Which is why these kinds of measures are more accepted there.”


Every couple of years I teach an undergraduate course titled “Individual Rights and the Common Good,” exploring just this tradeoff. It is essentially a course in political philosophy, focused on the proper balance between the individual’s right to autonomy and the communitarian’s concern for the well-being of the broader society–and the very thorny issue of who gets to decide?

Who gets to decide what the “common good” looks like? What sorts of decisions should individuals get to make, free of government interference or coercion? What sorts of situations should give government the right to overrule individual preferences?

This year, I have been particularly gratified with my students’ enthusiasm for these questions; they have really engaged with the sometimes difficult readings, and in impressively thoughtful ways.

The purpose of the class isn’t to produce consensus; it is to raise appreciation for the complexities involved and the dangers of what I think of as American “bipolarism.” In the U.S., we have a regrettable tendency to see all debates as two–and only two–sided: this or that approach is either all wrong or all right. (Or as George W. Bush would put it, the world is divided between the “good guys” and the “evildoers.”)

If only life–especially political life– were that simple!

The Greeks had a concept of the “golden mean”-a middle ground between the extremes of excess and deficiency. Achieving that middle ground, however, would require abandoning America’s love affair with “all or nothing” politics, where every concession to reality or complexity is labeled selling-out, where ideologues on the Left and Right alike prefer no bread at all to settling for half a loaf, and where the perfect (as they and only they define perfection) is the constant enemy of the good.

We can see this playing out in the battle over “socialism.” Not only is it apparent that the combatants are operating under wildly different definitions of the term, but neither the free-market folks nor the collectivists seem to understand that the the answer is both. Every economy that is currently working (or was working before the pandemic) is a mixed economy, in which some aspects are “socialized” and others are left to the market. The issue isn’t “socialism or capitalism”? The issue is the much harder question “which goods and services must be provided collectively and which should be provided by the private sector?–and why?”

(I’ll also note that while the unedifying capitalism/socialism argument is center stage, less attention is being paid to the fact that what the U.S. increasingly has isn’t free-market capitalism–it’s corporatism. And that’s a big problem.)

Aristotle raised the fundamental question with which political philosophy and political systems must contend: What sort of society best promotes human flourishing?

Answering that question, of course, requires that we agree on what human flourishing looks like, and what governmental or social mechanisms are most likely encourage it…These aren’t easy questions, and as we stare into a potential abyss, I’m getting pretty impatient with the pontificating ideologues who are stubbornly unwilling to understand–or engage with– the real and complicated world we inhabit.


Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.


Sunday Sermon

I was reading a paper sent to me by a member of our Center’s National Advisory Board, and was struck by the following paragraph:

Democratic modes of association are not given by nature; on this the historical record could not be clearer. Rather, they are built, and much of the construction work is done by people who share an understanding of what kind of polity they are trying to create. These people are not born grasping the difficult political principles of limited government, civil rights and liberties, toleration and equality before the law. These are social, moral and cognitive achievements.

Those “social, moral and cognitive achievements” are missing from the zealots who are currently holding Congress–and the American government–hostage.

We ordinary Americans will bear the brunt of their absence.


What Planet is This?

Never in a million years did I think I’d write what I am about to write: progress on gay rights and same-sex marriage is the only bright spot in an otherwise dismal political landscape.

Yes, you read that correctly. Think about it.

Within the past couple of months, the Justice Department concluded that DOMA is unconstitutional, and announced that it will not defend it in court. The silk-stocking law firm hired by the Republican troglodytes in Congress to defend the measure backed out, citing its own commitment to gay equality.

In the last few weeks, I’ve read an impassioned essay by a conservative Evangelical pastor berating his fellow Evangelicals for their political activism against same-sex marriage and taking them to task for hypocrisy. I’ve seen a You Tube of a young Republican (and boy, are they rare) testifying to a state legislative committee in favor of same-sex marriage. I’ve seen two polls conducted by respected national opinion research firms, both of which found a slight majority of Americans in favor of same-sex marriage. And most recently, this news item appeared on the ABC News website:

“The Navy will allow same-sex couples to wed in ceremonies on its bases and officiated by Navy chaplains after the “don’t ask, don’t tell” policy is officially repealed, according to new training guidelines published last month by the Navy’s chief of chaplains.”

This ship has sailed. There will be rearguard actions, there will be setbacks, but the war is over, and the good guys won.

Unfortunately, the rest of the country is going to hell.

State legislatures are passing increasingly insane measures. In Texas, the legislature has overruled law enforcement and the administrations of the state’s universities, and authorized students who are so inclined to carry guns on campus. (That should “shoot down” their academic recruiting—nothing as comforting as knowing that the student you just failed is mad as hell and packing heat…). Arizona was just the first of several states to pass anti-immigrant measures that—whatever their highly dubious merits—they know to be unconstitutional. (Profiling aside, the Constitution makes immigration an exclusively federal issue.) Here in Indiana, where I live, in addition to passing our own version of such a bill (over the strenuous protests of our largest employers), the legislature passed–and the Governor signed—the nation’s most restrictive abortion bill, which among other things de-funded Planned Parenthood, the only provider of healthcare services for some 22,000 low-income women. (The fact that denying two million dollars to Planned Parenthood will cost the state four million dollars in federal family planning money didn’t matter any more than the health of Indiana’s poorest women mattered.)

I won’t even mention the efforts of Governors in Wisconsin, Ohio and Michigan to deny public sector workers the right to engage in collective bargaining, or their wars on public schools and teachers. Or the states that have passed their very own “birther” bills.

When you look at Congress, it’s even worse. The 2010 elections swept a large number of absolutely crazy ideologues into office, where they are busily trying to abolish Medicare and Medicaid, cause the national government to default on its obligations by refusing to raise the debt ceiling, voting that climate change doesn’t exist (I kid you not!) and engaging in all sorts of other mischief, the consequences of which they clearly do not begin to understand.

Seriously, if it weren’t for the progress on gay rights, there’d be no progress at all. And if that isn’t enough to make you head out for the nearest bar, I don’t know what is.