The prognosis for free speech in America promises marked improvement.
Conservatives and the Lure of Relativism
Accepting the idea that democracy is all about process undermines the very principles of our regime.
Years ago, I was brought into a meeting with the American Civil Liberties Union (ACLU) to state “the other side” in a case dealing with a band of Nazis in Skokie, Illinois. The self-styled Nazis were seeking to parade, with swastikas and armbands, in a community containing many Jews who had survived the Holocaust. David Hamlin of the ACLU declared at the time that the First Amendment “protects all ideas—popular or despised, good or bad…so that each of us can make a free and intelligent choice.” In Hamlin’s translation, it was a matter of being “popular” or “despised”—to be despised was merely to be “unpopular.” It was no part of his understanding that certain things may be, in themselves and in principle, truly despicable. And now it may be the height—or the depth—of irony that this position of the ACLU seems to be settling as the position even of conservatives on the Court.
But during the debate over the Nazis in Skokie I had pointed out that the real threat did not come from that ragtag bunch calling itself the American “Nazis.” The more serious danger was a political class talking itself into the notion, as David Hamlin had it, that we must be free to hear the Nazis because we must be free to choose the Nazis and their policies in a free election. The assumption, in other words, is that democracy is all process and no substance: that people are free to choose anything—to choose slavery or genocide—as long as it is done in a democratic way with the vote of a majority. In this understanding it would be legitimate for the American people to choose the Nazis or the white supremacists because their ends are no less legitimate than any other set of ends on offer in our politics.
But the very freedom to choose a candidate or a party in a free election sprang, of course, from the “proposition,” as Abraham Lincoln called it, that “all men are created equal,” that the only rightful government over human beings depends on “the consent of the governed.” The Nazis, on their racial principle, rejected that founding premise and, with it, the regime of free elections. To say that it was legitimate to choose the Nazis in an election was to say that it was legitimate to choose the party that would end free elections. And as it acted out its character, it would sweep away also that regime of absolute freedom of speech that the ACLU affects to treasure. But if that regime of freedom was good in principle, we could not be warranted in choosing to sweep it away. If that regime is not rightful in point of principle, then the principle of “all men are created equal” could not itself be true. It could not be, as Lincoln thought it was, a “self-evident” or necessary “truth, applicable to all men and all times.” It could be, at best, only something true now and then. If it is not an enduring truth, it must only be an opinion, no more or less true than any other set of opinions on offer in the political landscape.
Again, the real danger posed by that case in Skokie was not that of the gaggle of a dozen would-be Nazis on the street. The deeper danger was that lawyers from the best schools, heading the ACLU, would talk themselves out of the very principles that marked this regime and the ground of their own freedom. But the even sadder move is that a corps of gifted conservative judges, bracing for a wave of intolerance, seem willing now to adopt as their own the jural doctrines on speech established by the ACLU.
Only a year after Matal v. Tam, [the Supreme Court’s] slide into a tactical relativism would be taken a step further in the famous case of Jack Phillips, the Masterpiece Cakeshop baker who had refused to design a cake to celebrate a same-sex wedding. The case did not exactly have a resounding resolution. For Justice Kennedy, the swing vote, the case turned on the fact that the Colorado Civil Rights Commission had gone out of its way to show a gratuitous contempt for Phillips and for the Christian convictions that reinforced his moral judgment. Justice Alito rightly sensed the need to say something more emphatic in defense of religious freedom. He drew to his side his new colleague, Justice Gorsuch, and together they risked taking this emerging, half-hearted relativism just a bridge too far. For now the two justices were moved to say that “just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”
Is the assumption now that nothing going under the name of religion may ever embrace anything that is in principle wrong or despicable—that offensiveness is simply in the eye of the beholder? But what of Satanism? How can the affirmation of radical evil be consistent with anything that we could consider “religion” rightly understood? And yet, as bizarre as it sounds, that is precisely the argument that some conservatives have fallen back upon: that in order to secure religious freedom from the prejudices of the irreligious or the people hostile to religion, it is necessary that we stop presuming to cast judgments on any religious teachings as legitimate or illegitimate, defensible or indefensible. But this affirming of relativism, this radical denial of the grounds of moral judgment, has the perverse effect of undercutting the very ground on which we would offer a moral defense of religion. Or an account, in other words, of just why religion is worth protecting.
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