UPDATE – Mark Kleiman has an interesting rejoinder here. Responding to my argument that the liberal inconsistency on racial profiling — applauding when it is done by employers or admissions officers; condemning when done by police or airline security guards — “is not so surprising for a movement whose intellectuals tend to reject principles on principle,” Kleiman argues that I make “a fundamental mistake, confusing political liberalism with intellectual post-modernism.”
First, I don’t. My observations was of “a movement whose intellectuals” reject principle on principle. Surely Kleiman doesn’t deny that post-modernism and its relativistic relatives cut a wide swath through the liberal intelligentsia these days. I also believe that it is very difficult to argue, as he appears to, that political liberalism is isolated from and impervious to the main currents of academic and cultural liberalism. (Of course, recalling one prominent liberal politician, I suppose that depends on what the meaning of “is” is.) In any event “political liberalism” comprises much more than merely politicians, including as well academics, judges, commentators, interest groups, etc.
Kleiman’s main concern, in the post to which his comments on my post are an Update, is to argue that liberals are committed to the principle of free speech and conservatives aren’t. Thus liberals are much more likely to defend speech with which they disagree, and when they don’t they can properly be called hypocrites. But according to Kleiman, “No one charges a conservative who wants to suppress free expression with hypocrisy; the charge wouldn’t make any sense” — not believing in free expression, conservatives aren’t hypocritical when they suppress it.
I think this is mistaken, both historically and currently. In the McCarthy period, for example, critics of McCarthyism were as likely to be found among conservatives as liberals, especially if the definition of McCarthyism includes, as it should, the loyalty program implemented under President Truman. “Cold war liberals” did not come out of this period with hands any cleaner than the conservatives’.
But that’s history. Today, attacks on free expression seem to come from the left much more often than the right, especially on campus. Intolerance for “hate speech,” and support for speech codes, is thus typical of today’s liberals, not the exception. It is liberal legal scholars such as Catherine MacKinnon and Cass Sunstein and Owen Fiss who are developing the theoretical justifications for limiting the reach of the First Amendment, just as it is liberal politicians who led the movement to restrict political speech (sometimes known as campaign finance reform). On the Supreme Court, as Eugene Volokh has shown (I don’t have the cites handy), the conservative justices are the most consistent defenders of First Amendment values, and liberals the least.
I certainly don’t believe conservatives have a monopoly on virtue, just as I don’t believe all liberals are un-principled post-modernists. I do believe, however, that politics generally floats on intellectual currents, and that increasingly liberals — swept along as they are by a relativism-based multiculturalism and, yes, post-modernism — find that they are swimming upstream when they try to defend favored policies with arguments based on principle.
Hi again John,
I’m going to have to dust of the blog and address this (maybe tonight, since I finally have some free time).
At the moment, let me object to your sentence “liberal legal scholars such as Catherine MacKinnon and Cass Sunstein and Owen Fiss . . .”
Putting those three into the same category seems inaccurate to me. McKinnon is by no means universally admired among liberals; in general, I find that her position mixes liberal with radical in a way that both groups can find unsatisfying.
As for Cass Sunstein, while it’s probably accurate to call him liberal, many of his arguments are more helpful to conservatives. He has argued, for example, for a form of judicial “minimalism” which, while it tries to avoid being either liberal or conservative, is certainly more conservative in application, since it effectively prevents the broad-based decisionmaking characterized by the Warren court and the writings of Eskridge, Dworkin, and others. Similarly, professor Sunstein has argued for limits on punitive damages which correspond with conservative calls for tort reform.
On free speech, his argument that free speech should be viewed as part of the Madisonian model of deliberative democracy may allow for some restrictions on speech, but it is not inconsistent with the positions taken by numerous conservative legal scholars, from Scalia and Manning and Yoo to Volokh, that components of the Bill of Rights should be examined in their historical context.
Kaimi,
As usual your comments are right on the mark and, almost, persuasive. I have no real commitment to the “liberal” label for MacKinnon or Sunstein. Just to keep the ball rolling, however, I would point out that, whatever she is, MacKinnon is on the left side of the spectrum; precisely where liberal stops and radical starts is not directly relevant to the point I was trying to make. In that regard, most “real” liberals have accepted her “hostile work environment” theory, which subordinates First Amendments values to a notion of gender equality.
Re Sunstein, he too allows other other interests to weigh heavier in the balance than First Amendment concerns much more, I believe, than contemporary conservative theorists do. I may be wrong about this, and will certainly accept persuasive correction. His “mimimalst” approach, I think, is inherently neither conservative nor liberal. Minimalism, i.e., anti-activism, is generally an approach favored by those who disagree with what an activist court does or would do. Thus in the current climate most minimalists are those who think the Rehnquist court too activist on race, federalism, etc. I strongly suspect most minimalists would quickly become maximalists if confronted with a liberal court. I obviously don’t know whether that’s true of Sunstein himself, but clearly his political (as opposed to theoretical) positions these days are liberal: opposition to impeachment, defense of affirmative action, consultant to Democratic Senators on how to approach judicial appointments, etc.
There is no question about Fiss.
Thus I think my larger point — that in today’s political and theoretical environment, First Amendment values find their firmest friends among conservatives and those who want to balance, limit, or restrict them among liberals — still stands.
John,
I posted something about the profiling issue on my site. I wanted to link it your “trackback” function but it didn’t work. Any suggestions?
Testing ping
Testing, testing, 1…2…3…
It looks like you are testing to see whether the trackback function works. Let me tell you what I did, so you can correct my mistake. I clicked on the trackback button, highlighted the trackback URL, and put that URL into my text as an “It looks like you are testing to see whether the trackback function works. Let me tell you what I did, so you can correct my mistake. I clicked on the trackback button, highlighted the trackback URL, and put that URL into my text as an ”
Sorry, half of my comment was mysteriously deleted. Anyway, I linked to that URL, but when I went to click through on my blog, an error came up.