Essay
09.10.2019

Putting the question to David French about moral reasoning in action.

There’s an old joke about two Jewish women in an apartment building in Brooklyn in the 1950s. One was vexed over Israel and the rumblings of war in the Middle East. “Did you see what that lousy Nasser did?” she asked. To which the other replied, “I didn’t see a thing—I live in the back!”

So I felt on hearing from friends, who read things closely and often between the lines, that I was very much in the background of the recent clash between Sohrab Ahmari and David French.

They saw reflections of my own writings in First Things when Ahmari wrote in the same journal “Against David Frenchism,” the article that launched the debate between the two over conservatism. My most recent essay from June/July, “Backing into Relativism,” dealt with similar themes. My concern in that essay was with the way that two other friends, Supreme Court Justices Neil Gorsuch and Samuel Alito, were projecting into the domain of religion the same moral relativism they were settling on (as a tactical move) in the regulation of “speech.” Part of my complaint was that so many of our friends among the judges and lawyers were willing to settle on the test of “sincerity” in judging religious claims because they didn’t want to cast moral judgments on the things different groups professed—and the privileges they claimed—in the name of religion. This approach brings us to a state of affairs in which conservatives are willing to cast the protections of religion even over Satanists, as though the affirmation of radical evil could be reconciled with anything we take seriously as “religion.”

And so our friends find themselves in full pragmatic mode, seeking to protect religious freedom by emptying religion of any substance, most notably the G-word: God, the Creator, the Author of the Laws of Nature, including the moral laws; the God who endowed us with standing as rational and rights-bearing beings. But—to invoke the late Stan Evans—the problem with pragmatism is that it doesn’t work. Gunnar Gundersen has delivered the clinching point here: On the premises of this pragmatic relativism we can no longer give an account of what makes religion a “good,” which deserves our efforts to honor, protect—and encourage—its spread.

But since I wrote my essay, the curious tendency among some of my friends has been to double down on relativism, or settle in with a form of relativism decorously covered over with a fig leaf. And these issues are at the core of the crisis in our politics and culture that moved Sohrab Ahmari to write with such edge. He wrote in part as a challenge to our conservative friends, and he wrote also with anger about the depth of the moral losses we have sustained in the “culture wars.”

The Extinction of Civility & Ahmari’s Cri de Coeur

The stakes seem curiously and gravely raised by Ahmari’s disposition now to treat the conflict more seriously as a war, with real enmities, with lives at stake. One telling sign of this came with his suggestion that “civility” might be regarded as a dispensable nicety. But here, I think, David French was distracted by a kind of head-fake on the part of Ahmari. I read Ahmari’s piece as a kind of cri de coeur, a wail of despair over an ongoing string of inversions and corruptions in our way of life.

Ahmari was content to take, as a telling sign of this sweeping current of change, the example of an ad on Facebook for a drag queen hosting a children’s reading hour in a public library in Sacramento. But other examples abound. We have come to the state of affairs in which a father can lose custody of his 14-year old son who affects to be certain that he’s really a female. The resistance of the father can be taken to mark a “hostile” or poisonous environment at home, a sufficient ground for blocking the interventions of the parents and removing custody.

Ahmari’s sense of despair and loss spurred him on to call us all to treat the culture war as seriously as the other side treats it, and wage it, as they do, to win. But in these calls for “war,” brought forth with trumpets sounding, David French seemed to hear Jacobins of the Right oiling the tumbrils, ready to roll on in attack, letting the shreds of civility fall to the side. French has recoiled from a new conservativism that treats with cold indifference the breakdown of that minimal civility that makes it possible for people with deep differences in politics and religion to live together with at least a thin civic amity.

Here, it seems to me, is where the Ahmari head-fake worked. Rather than French standing against the Yahoos, his response brought back the image of Inspector Clouseau of The Pink Panther, clubbing down the guards of the bank who were chasing the thieves dashing away with their loot. French focused on conservatives contemplating a new militant style, and as he fixed his focus there, he blocked from the screen the full force of the assault rolling forth from the Left, who have not the slightest willingness to contemplate a life in peace with the likes of anyone on the Right.

What needs to be recognized as the first point of sobriety is that the Progressives and the Left truly despise us. They mean to drive us out of the public square, to make it illegitimate to express our moral arguments in the media or in the academy, and they mean to drive us out of private settings as well. They forced Brendan Eich out of his executive position at Mozilla and James Damore out of his engineering position at Google, just as they now warn young lawyers, who would dare resist the acceptance of same-sex marriage or express serious doubt about the validity of transgenderism.

When Clarence Thomas was nominated to the Supreme Court, he remarked to his wife Virginia in a bantering way that the people gearing up to oppose him wanted to kill him. He was not, he thought, being literal. But reality settled upon him with the unrelieved nastiness of what followed: They really did want him dead. As they would have him and others among us dead right now. Why else would five federal marshals be required this summer for Brett Kavanaugh to teach a two-week seminar in England?

If we don’t understand that we’ve gone now beyond the conventions of civility; that the enemies on the Left want to expel us from public life and make our private lives untenable; that they despise us with a lethal hatred—if we don’t grasp that, we are not looking at the world in front of us with unclouded eyes. If there is anyone who needs to be reproached and called to a life of tolerance and civility, it is not Sohrab Ahmari.

Does America Have a Common Good?

I find in Ahmari’s cri de coeur the sense of despair shared by many of us. To wit: If we are engaged in a “culture war,” it is being fought forthrightly as a moral battle on only one side. The Left are convinced they are making nothing less than moral arguments on the deep rightness of same-sex marriage and abortion, the wrongness of saying anything critical about transgenderism, and anything else in the vision of sexual liberation. The conservative side in the courts responds with tired clichés of “conservative jurisprudence” and prides itself on avoiding moral reasoning altogether.

Conservative lawyers were willing to defend the right of the people in California to reject same-sex marriage, but they had trouble summoning the words when it came to offering the moral defense of marriage as the union of one man and one woman. Up to John Roberts’s dissenting opinion in Obergefell v. Hodges, the conservative jurists would retreat with their usual formula and refer only to “traditional” marriage. “Tradition” is something conservatives invoke precisely because they can’t summon the words to explain what is morally compelling, or simply defensible, in the arrangements they are defending. But there were few institutions more “traditional” than slavery when it was ended in America. Every invocation of tradition could be met with a replay of Justice Oliver Wendell Holmes’s line that you need to say something more in defense of any law than that it’s been around since Henry IV.

And yet, in the face of this downward spiral, the lively wits among us warn that we will be heading into dangerous waters if we start taking too seriously again the classic notion of the polis, the political order, finding its telos or purpose in something more than protecting people in their lives and property. We are told that it is dangerous to think of ourselves politically as a community, cultivating a sense of morality and justice in one another by teaching through the laws.

And so now, wonder of wonders, we see revived this very argument within our own family, which had been conducted years ago by Martin Diamond and Walter Berns on one side and Harry Jaffa on the other.

The argument offered by Diamond and Berns ran in this way: The American regime was not meant to be a polis in the classical sense. It was not meant to be a community that sought to direct itself to the highest human ends, its citizens engaged with the most demanding questions about the purpose of human life. When polities were ordered to a life of taking those questions seriously, the answers usually came with an established church and a more constricted set of civil liberties. The American republic would not be relentless in seeking some elevated “common good”; it would settle instead for a regime that left people free to seek their own ends, directing their own “pursuit of happiness” by their own personal lights. Hence the old line that the American Founders had “built upon low, but solid ground.”

What has been eerie of late is that this argument has floated back, rather like the ghost of a lost pirate ship—it has come back with virtually the same words said by the writers who have picked up the cues and taken David French’s side of the argument.

In all sobriety, of course, the notion of a “common good” can never mean a material good, equally diffused, equally felt by everyone in the community. The best analogy here is to the famous Ship of Theseus: all of the timbers composing the ship are replaced over time, and yet the ship is still recognizable. It is still the same ship, not because it has remained materially the same, but because it can still be identified by the shape and form that had given it definition. The same thing holds exactly for the polity: How do we recognize this American republic, surviving in its main form for nearly 250 years even as generations have died off and the people who constituted it have been replaced by others? America retains its characteristic form because it retains mainly the same defining structure, built on principles that are still there, still true, even as fewer and fewer citizens can give an account of them. But that in itself points to the path of recovery: The common good can be revived as we come to understand again, as a people, those principles of right and wrong that may justly claim to govern us precisely because they hold their validity for all of us, for everyone who comes under the laws.

Yet once again we have heard that if we take seriously the terms of principle on which we live together as a people, if we become too demanding in pressing those moral questions about the rightful ends of the laws, we will be living under a “theocracy.” That kind of connection can be made only by people who have lost the original understanding of the connection between the “logic of morals” and the “logic of law.” If we asked, “For whom would it be ‘wrong’ to torture an infant?” the answer to that question of right and wrong, coming back in a moral voice, would be, “It would be wrong for anyone, for everyone.”And when we come to that moral recognition, we lay the groundwork for forbidding that torture to anyone, to everyone: we would lay the ground for forbidding it with the force of law. That does not mean we are obliged to stamp as illegal every wrong we can see, but it does raise the bar: we do need to explain why any wrong would indeed be general or universal, for anyone coming under its terms, before we are warranted in imposing laws to forbid it.

The simple truth of the matter, running back to Aristotle, is that we have laws only because we have moral judgment, and as long as we have laws, we will never be detached from a life of moral judgments. And when we discover that the law just can’t evade the need for moral judgment, we discover anew—contra Diamond and Berns—that we have never left the polis, even here in America.

Marriage, Sexual Orientation, Transgenderism, and Abortion

I read David French, in his expansive nature, urging us to have the confidence to take a Burkean path: Like true conservatives, we can make our peace even with a political order not exactly reflecting the terms of principle on which we would prefer to live. Within our own circles, for people within our reach, we can live a life closer to the moral code that summons us. And we can continue, where possible, to make our arguments and press our positions in the politics of the day.

But for Ahmari this stance looks like a recipe for the peace after surrender—the acceptance of a state of dhimmitude. There may be skirmishes here and there, but the war has mainly been lost, and conservatives will treat same-sex marriage and religion-without-theism as politically untouchable. One professor of law who had been engaged with us in drafting Defense of Marriage Act (DOMA) in 1996 told me recently that the issue of marriage was now lost, that it was quite unavailing to launch any effort to start chipping away at the Obergefell case. Soon, in turn, we will lose the will to stand up against the destructive illusions of the transgendered, whether it’s the matter of males in female bathrooms or the defense of parents trying to rescue their teenagers from disfiguring surgeries.

But there precisely is where the argument may be joined, and a test finally put to us over this argument within the family.

David French has said that a stance of civic tolerance will not divert us from plunging back, with new force, into the culture war. Ahmari may rightly ask then, “Where exactly are you willing to challenge the other side, on issues that some conservatives now consider to be settled and lost?” Would you challenge the judgment of that conservative professor who argues that any further resistance on marriage is futile? Would you be prepared to say that the culture war doesn’t end until we’ve been shown to be wrong in our moral understanding of gender and abortion?

We can readily pick out three or four issues that test the principles running to the root in our current crisis and our “present discontents.” Almost all of them would be understood at once by ordinary people. Let me offer a string of them.

Marriage

On marriage there is a lever at hand. The holding in Obergefell, on same-sex marriage, could be challenged in a move of sublime moderation that could nevertheless expose the fallacies in the decision and begin some serious unraveling.

What I have in mind is the proposal for a Defense of Monogamous Marriage Act (DOMMA). That would simply enact another version of the Defense of Marriage Act, but with these components: that neither the federal government nor the states would be obliged to recognize as a “marriage” a union of more than two people. That proposal made its way to the staff of Paul Ryan when he was Speaker in the last Congress, and I was told that the Speaker would make a decision on bringing the matter to the floor if a sponsor could be found for the bill.

For the leadership the prospect was intriguing, for they couldn’t guess how Democrats would vote on such a bill. On the one hand, the Democrats don’t want to come out explicitly for polygamy, but on the other they are reflexively opposed to virtually any measure that would cast a moral judgment on the way that people act out their sexuality. As for the courts, the Supreme Court could not strike down this bill without virtually licensing polygamy. In the meantime, we would establish—in the face of Justice Kennedy’s dubiety—that Congress does indeed have the authority legislate on this subject of marriage.

There were two conservative congressmen who were willing to consider acting as sponsors of the bill, but both men had other troubles of their own and they didn’t survive their primaries. Still, the proposal is as sound and as provocative as it ever was in testing the constitutional argument. What remains is finding the conservative congressman with the nerve to introduce it.

Again, would French and his friends find this a challenge worth mounting?

Sexual Orientation

Discrimination on the basis of sexual orientation is the key term in the statutes brought against businessmen who don’t wish to celebrate same-sex marriage or have transgendered people represent their firms to customers. And yet, the term is empirically unstable and morally dubious. Studies have shown people shifting their sexual orientations two or three times within a period of 10 years. Even gay activists have regarded pedophilia and bestiality as beneath acceptance. And if gay activists still consider some sexual orientations as illegitimate, we could hardly be warranted in passing laws that, in a sweeping way, bar all discrimination based on sexual orientation. It is time to make that explicit challenge to the laws on discrimination rather than merely seeking an exemption for the religious. It would be unwarranted to impose these laws on anyone.

Transgenderism

We can seek legislation or decisions in courts to protect parents against laws that would remove the custody of minors from parents who would seek counsel for children suffering confusion over their sex or sexual identity. These are parents, after all, who simply insist on respecting the objective truths that mark the natures of males and females. The Trump administration is quietly putting in place executive orders trying to counter the drive toward transgenderism, but none of this takes the place of arguments articulated by figures at the top of the administration, or by a GOP ready to go to the country on the issue. I suspect this matter is the “soft underbelly,” one might say, of the whole LGBTQ+ edifice.

Would David French and his friends be inclined to see this issue raised when calling out the vote in 2020, or do they think it too imprudent?

Abortion

No issue runs deeper, for abortion involves the question of who constitutes that “human person” who is the bearer of rights, subject to the protections of the law. Abortion is the principal issue on which Republicans in Congress have found their cohesion as a conservative, pro-life party.

Twice in the last two Congresses, a unified Republican party in the House brought forth the Born-Alive Survivors of Abortion Protection Act to restore legal penalties, which had been stripped from the original Born-Alive bill in 2002, to protect the child who survived an abortion. No Democrat voiced a vote in opposition to that original bill. But twice now, in September 2015 and January 2018, all but five or six Democrats in the House voted against the bill that would have punished the kind of post-abortion slaughter practiced by the likes of Kermit Gosnell. With that move the Democrats have firmed up their most radical position: that the right to abortion extends beyond the pregnancy and involves nothing less than the right to kill a child born alive.

This position, made explicit, would still shock a public that hasn’t become entirely anesthetized on this issue, including many people who count themselves as “pro-choice.” The wonder is that Donald Trump made no use of this issue in 2016 and mentions it only fleetingly now. For a man who regards himself as uncommonly attuned to the sentiments of the broad public, Trump’s reticence here defies explanation. This is an issue on which he could drive the Democrats into the sea, even before the oceans start rising.

But in the meantime, if the Republicans can regain the House, the surge of their conviction may awaken even the conservative judges. No Republican voting in the House has suffered a moment’s doubt that the textbooks on embryology have it right: that the child in the human womb has been nothing other than a human being from its earliest moments. This offspring does not undergo a change of species at birth or at any other time as its features fill out in the womb. Even people who aren’t lawyers seem aware that the laws on homicide do not vary with the height and age of the victim; that it is not a more serious murder to kill an older, taller man than a small child.

Those trained as lawyers could add the news that the Fourteenth Amendment was meant to protect “life” as well as liberty when they are threatened by the laws and officers of a state. As it happened, virtually all of the states in this country did cast legal protections on the child in the womb, and it was the decision of the Supreme Court in Roe v. Wade that swept away the laws that protected unborn children. Congress could well invoke its authority under the Fourteenth Amendment itself and restore the authority of the states to cast their protections again over babies in the womb. This move might also awaken some of our best friends among the judges, who signed on long ago to the conservative cliché that the most judges could do was return the issue of abortion to the States—that nothing in the Constitution authorized Congress or the courts to engage their authority when the protections of the law were withdrawn from this one class of human beings.

Would Mr. French think this a matter of importance, high enough and pressing enough to summon the arts of those who would be leaders of the conservative party?

Unity Through Moral Reasoning? A Simple Test

There is no want then of places or moments touching the issues of deepest moral import in our political life where conservative arguments may be made anew, with a moral argument no longer muffled. To shake off our diffidence, to summon the nerve for pursuing politics in this way, would offer the strongest challenge to the Progressive ideology that has now been cast over us as an orthodoxy. I can spot several men and women, not in politics alone, but in the academy and the courts, who have the nerve and skill to make these arguments. The test for us, though, is whether the conservatives who enjoin us not to be uncivil would be willing to see their fellow conservatives ignite fires in our national life by making this serious challenge and fighting the culture war “for keeps.”

When the attempt was made in 1919 to induce key players on the White Sox to throw the World Series to the Cincinnati Reds, the gambler Arnold Rothstein conveyed the code: The starting Sox pitcher, Eddie Cicotte, was to hit the first batter who came to the plate. He did, and that was the signal that the deal was on. We need someone at this moment to take any of these issues I’ve set down here, make the signal gesture of assembling a team, and present the argument that jolts the Left—and surprises the conservatives. Do that, and we’ll know that the game is on. More than that, we’ll know there’s no further ground for serious division within this circle of conservative friends. 

is Founder and Director of The James Wilson Institute on Natural Rights and the American Founding. He was the main advocate, and architect, of the bill that became known as the Born-Alive Infants’ Protection Act. Among other books, he is the author of Natural Rights and the Right to Choose (2002), and Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (2010), both with Cambridge University Press. A longtime member of the faculty at Amherst College, and The Edward Ney Professor of Jurisprudence, since 2016 he has assumed emeritus status.

Join the conversation

essays
15

Is America Worth Saving?

Does politics have an answer to digital disenchantment?

essays
10

As the Electoral College Goes, So Goes the Constitution

Plebiscitary democracy will almost certainly bring much sharper ideological, geographical, racial, and religious divisions.

essays
28

Vichycons and Mass Shootings

Against the backstabbing, collaborationist “Right.”