Monthly Archives: January 2006

Ed Meese, John Yoo, and free speech

One of the worst things about modern American politics is the use of inflammatory mailings to raise money. I used to worry about such tactics when I worked at Common Cause: our mailings, while not partisan, weren’t exactly fair and balanced. It pays to send a core constituency of like-minded people a message that will make some of them angry enough to write you a check. As a result, there are large, passionate, but completely separate political conversations going on in America.

It would help if we put communications from various ideological groups into the public domain so that what they said to their own constituencies could become part of a diverse public deliberation. Consider, then, the following “Dear Mr. Levine” letter that I recently received from good old Edwin Meese III, on behalf of the American Council of Trustees and Alumni. He writes:

So much of what’s wrong in our country has its roots in the 60s revolt at our colleges and universities. I remember–I was there.

Let me tell you about my experience with the 60s radicals.

At my old law school, the University of California at Berkeley, an alliance of radical students, hippies, and street thugs got together with a view to destroying so much of what you and I value. They plunged a great institution into a crisis unprecedented in American higher education.

These people, calling themselves the Free Speech Movement, were actually interested in creating a mob scene. …

I told Governor Brown that if the radicals were allowed to stay there would be another mob scene, even bigger, the next day. I believed restoring order was important and necessary. The building was cleared and a potentially dangerous situation was defused.

And then I participated in prosecuting them.

There would be many ways to respond to this, but let me counter an anecdote with an anecdote. It is to Ed Meese’s “old law school” that John Yoo has returned after a stint in the Bush Administration. As David Cole writes, “Yoo’s most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime–even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture.”

One can argue that Yoo’s memo provided any American torturers with a legal defense. Their behavior cannot be “patently illegal” (which is the standard for conviction under US military law) if a Berkeley law professor said that it was legal. Thus Yoo’s writing changed the actual legal situation regarding torture. Nevertheless, Yoo’s colleagues (some of those “60s radicals” whom Meese believes “are now entrenched in college faculties and administrations”) uphold his right to teach at their institution. Could it be that the Free Speech Movement was actually about–free speech?

why libertarians need a theory of political socialization

The interesting libertarian David Friedman argues that the First Amendment bans public schools. This is a portion of his argument, which deserves to be read in full:

The judge who recently held it unconstitutional for public schools to be required to teach the theory of intelligent design correctly argued that doing so would be to support a particular set of religious beliefs?those that reject evolution as an explanation for the apparent design of living creatures. His mistake was not carrying the argument far enough. A school that teaches that evolution is false is taking sides in a religious dispute?but so does a school that teaches that evolution is true.

The problem is broader than evolution. In the process of educating children, one must take positions on what is true or false. Over a wide range of issues, such a claim is either the affirmation of a religious position or the denial of a religious position. Any decent scientific account of geology, paleontology, what we know about the distant past, is also a denial of the beliefs of (among others) fundamentalist Christians. To compel children to go to schools, paid for by taxes, in which they are taught that their religious beliefs are false, is not neutrality.

[…]

My conclusion is that the existence of public schools is inconsistent with the First Amendment. Their purpose is, or ought to be, to educate?and one cannot, in practice, educate without either supporting or denying a wide variety of religious claims.

Friedman’s logic applies even more generally: almost all actions by a government (e.g., speeches by elected leaders, the design of public buildings, interventions in the Middle East) may make statements–implied or explicit–in favor or against religious beliefs. For instance, maintaining an army violates Quaker and other pacifist beliefs, yet citizens are required to pay for the military. Jefferson once wrote, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” Taken very literally, this is an argument not only against public schools, but against government itself.

To me, that’s a reductio ad absurdum. As a deliberative democrat, I believe that the public ought to be able to build and control public institutions without many limitations. That means that it should be constitutional for a community to teach “intelligent design.” The First Amendment’s ban on the “establishment of religion” should mean what it says: No established religion. In public debates about our schools, I will argue against Intelligent Design, which strikes me as intellectually embarrassing as well as possibly blasphemous. But if my side loses, I don’t want the courts to bail us out by declaring ID unconstitutional. The public debate should simply continue.

Having staked out this contrary position, let me try to say something quasi-constructive about libertarianism. Libertarians are leery of political power, because it can be used to restrict freedom. However, political power exists wherever there are millions of people with opinions. Constitutional limitations on the public’s will are just pieces of paper unless the public wants to be limited.

Therefore, libertarians must change majority opinion so that individual liberty becomes a higher moral priority than it is today. I can think of three strategies to attain that end:

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