Tuesday, October 16, 2018

Pittsburgh Foundation Grant

10/16/2018--Last week the Pittsburgh Foundation approved a $5000 grant to fund a pilot four podcasts in what I hope will become the Bends Toward Justice Podcast Series of 50 conversations with a variety of Americans about the teaching of Martin Luther King, Jr., that "the arc of the moral universe is long, but it bends toward justice. In my view, as readers of this blog know, American public life is in decline, and private life too, because of the decline of moral realism. These conversations represent an attempt to reintroduce justice and history as serious cultural categories.

The podcast series is a part of the Truth/Justice/Democracy Initiative intended to change American public life. Truth refers to the billboard in Erie, PA, this summer that focused on lying in politics. It announced that "tax cuts threaten social security." It was aimed at a particular lie--that tax cuts pay for themselves--but not only lying by one Party. I have Democratic Party lies, also, such as the we keep our doctors and plans under Obamacare, a claim President Obama undoubtedly believed at first, but kept repeating when he knew it was not going to be true.

The podcast series represents the justice part of the initiative.

The Democracy part has to do with all of my work recently about the looming threat to democracy. The immediate issue is partisanship that overshadows truth. That Republicans will not criticize President Trump about global warming. That Democrats will not acknowledge any good that President Trump is doing. My answer is the formation of a pro-democracy caucus among law professors promising to call out their own side. (Not much luck so far).

Here is the billboard and me in front of it. Photo by P. Ledewitz.

Friday, October 12, 2018

So, Shakespeare Is Now a Nihilist

10/12/2018—By nihilism, I mean the belief in the culture that claims of value are just matters of opinion, and are often just manipulations masking the will to power. I have been arguing for years that nihilism has infected the culture and that the effects are dire, especially in the political realm, leading to hyper-partisanship and the death of truth. Still, it is always a shock to see nihilism in an unvarnished state, certain of itself and unwilling to acknowledge its own uncertainty.

I received one of those shocks when reading a review by James Shapiro of Rhodri Lewis’s book on Hamlet, Hamlet and the Vision of Darkness in the April 19, 2018 issue of the New York Review. For Lewis, Hamlet is not the model of nascent subjectivity, inwardness, that he is often seen to be: “’He is instead the finely drawn embodiment of a moral order that is collapsing under the weight of its own contradictions.’” (Lewis’s words, quoted by Shapiro)

And the reason readers have largely missed this? Because we have been unwilling to acknowledge that Shakespeare himself rejected humanism:

Shakespeare repudiates two fundamental tenets of humanist culture. First, the core belief that history is a repository of wisdom from which human societies can and should learn…. Second, the conviction that the true value of human life could best be understood by a return ad fontes—to the origins of things, be they historical, textual, moral, poetic, philosophical, or religious (Protestant and Roman Catholic alike). For Shakespeare, this is a sham…. Like the past in general, origins are pliable—whatever the competing or complementary urges of appetite, honour, virtue, and expediency need them to be.

Shapiro notes that in Lewis’ view of Shakespeare’s vision, the search for absolutes by which to live and act is doomed to failure. In the search for meaning or fixity, one discovers nothing of significance.

Shapiro draws the natural conclusion from Lewis—“The absence of any moral certainties means that it’s a ‘kill or be killed’ world.” That is the jungle President Trump lives in, and increasingly, so do we. We can learn from Shakespeare that “the world has always been amoral and predatory.”

If I may say so, Professor Shapiro, renowned Professor of English at Columbia, seems unwilling to really criticize Lewis beyond acknowledging that “Lewis’s Hamlet is not mine.” I believe Shapiro generously wishes to give a newer generation its say without insisting on his own vision of Hamlet.

Fair enough—more than fair. But I have to ask, how is it that we can have “paid a steep political price for failing to heed Shakespeare’s warning” when we, including Lewis, basically share the vision that Lewis attributes to Shakespeare? We have paid a steep price, but we have paid it for accepting what Lewis is offering. We now need to expose this dark vision for the dead end it has proved to be.

Saturday, October 6, 2018

Journalism, Truth and Originalism

10/6/2018—I now see that Kimberley Strassel, columnist for the Wall Street Journal, did not mean what she wrote. But what she tweeted, which was retweeted by Randy Barnett, thus probably indicating his approval, demonstrates how nihilism infiltrates a culture, even a culture that thinks it believes in truth.

Here is the tweet: “Actually, the goal of journalism is presenting facts--and presenting them on both sides of any given issue. Americans then get to work out themselves, on the basis of those facts, the truth. We don't need press to divine it for us. Just try who/what/where/when/why/how”

The tweet was in response to Matthew Dowd, ABC News political analyst, who had written, “So kim so what do you think the goal of journalism if it isn’t the truth? Do you think we should have people on panels that argue the earth is flat?”

Now the reason I say that Strassel does not believe what she wrote is that she does not practice it on twitter. On twitter, she tells a story she believes to be true—-for example, that Democratic Party tactics over the Kavanaugh nomination were an unprecedented attack on a nominee.

That is a factual claim in a sense, but it is also an important truth claim. Any news report that, at least over time, did not make it clear that the Kavanaugh attacks were something new, would not be telling the story about the nomination.

Strassel might say here that twitter is not journalism, but the line between them is not particularly clear. A real reporter is always a reporter.

Notice that Strassel did not respond to Dowd’s actual example. You don’t put a flat earth person in a story and say neutrally that some people say the earth is flat. If there is a demonstration of people claiming the earth is flat, it would be poor journalism to present that claim as possibly accurate. The story would have to say that the flat earth position contradicts all that is known about the earth.

In the context of flat earth claims, the correction is not needed. But the broader point is that facts depend on values, as the philosopher Hilary Putnam showed years ago. That doesn’t make facts a matter of opinion, because those values—-consistency, integrity, beauty—-are themselves a matter of truth. Science does not advance based on facts, but on these values.

The goal of journalism is to present the relevant facts and explain their relevance. That is telling the story, which by the way is how journalism self-defines: telling the story.

When Walter Cronkite finally concluded and announced that the Vietnam War was being lost and that the government was lying, he was not violating journalistic norms. He was explaining the meaning of the relevant facts.

The reason Strassel wants to deny all this is that much of the media is biased. It claims that truth is on one side when there is actually room for perfectly reasonable disagreement—-that Justice Thomas is a sexual predator, for example, which is taken for a fact by much of the Left, but of course may be completely false.

But debating bias is hard. Denouncing truth is unfortunately easy. And so Strassel makes the big mistake of undermining truth.

The reason that Randy Barnett retweeted Strassel is that proponents of originalism make the same mistake she did. There is a truth of free speech, equal protection, free exercise, takings, etc. There is even a truth of fundamental, nontextual rights. Liberal jurisprudence has abandoned the search for these truths and just proclaims certain outcomes. Frustrated with that process, conservatives deny there is any truth to these values and so retreat to making historical claims about original public meaning (claims that often turn out to be disguised truth claims anyway, but that is for another day).

Showing that liberal claims are false is hard. In fact, conservatives are not even sure anymore that they are false. Denying truth, on the other hand, is easy.

Ironically, the framers themselves were liberals—-they thought there was a truth to free speech and would not be unhappy that we now know more about free speech than they did. The framers were not nihilists. Conservatives are turning themselves nihilists because they don’t understand their own position.

Randy Barnett wants to return to the Lochner era of judicial evaluation of economic legislation. But Randy does not ever want to defend such judicial outcomes on their merits. He wants to say that he is just returning to the framers’ understanding.

The framers, however, are all standing there saying, Randy, in a world of trillion dollar corporations and massive human populations that change the climate by their very existence, the meaning of individual liberty and limited government have to change. If you try simply to go back to us, you mistake us and undermine our goals.

Wednesday, October 3, 2018

Judge Kavanaugh Doesn’t Have a Judicial Philosophy: Only Randy Barnett Does

10/3/2018—Randy Barnett published a very thoughtful 1000 words in The Volokh Conspiracy arguing both that judicial philosophy is relevant to Senate votes on a judicial nominee and that Senators who vote against a candidate have an obligation to say for the record what it is about that philosophy they don’t agree with.

Randy also implied that a vote against Merrick Garland would have been justified by the Republican-majority on this basis. This is probably a bad idea because it means that no nominees will be confirmed unless the President and the Senate are controlled by the same Party.

But Randy’s idea is also unworkable for a simpler reason—judges don’t have judicial philosophies in the sense of “a proper method of interpreting our written Constitution.” Only legal academics like Randy have such a thing—because we don’t actually decide cases.

Judge Kavanaugh’s alleged legal philosophy is originalism—interpreting the Constitution according to its original public meaning and not changing that meaning until there is a constitutional amendment. But Kavanaugh would have voted the same way that Justice Gorsuch—another alleged conservative—voted in his first big case, Trinity Lutheran Church, in which the Court held that denying a taxpayer-funded grant for a playground to a church that was available to other nonprofits violated the Free Exercise Clause.

Without doing any research, I’m pretty sure that to the framers, Free Exercise just meant that government could not interfere with religious practice. It would not have required affirmative help by government. So, Justice Gorsuch changed the original meaning of the Free Exercise Clause without a constitutional amendment.

The reason he voted this way is that interpretations of the Constitution have to make sense today to the American people. Government involvement in the economy is now so vast that excluding churches from government programs really does deny Free Exercise. Lutheran Trinity Church was therefore a proper decision, but it was an example of the Living Constitution in action. (The Living Constitution is not a method of interpretation in Randy’s sense either).

Trinity Lutheran Church is just one example, but it is important because this claim to have a “method” of interpretation sometimes is used to absolve judges from having to defend their decisions morally. If a judge is perpetuating an injustice, that judge should have to answer for that and not pretend that some method forces the decision.

On a whole range of commitments—-forced unions membership violates the First Amendment, corporations have rights, advertising is more than a contract offer, property restrictions are a taking, Equal Protection bars gender discrimination—Judge Kavanaugh will predictably vote in ways that either clearly violate the original meaning of the Constitution or at least will vote without really worrying about whether such outcomes violate original meaning or not. In other words, Kavanaugh was picked because he would “simply reach all the outcomes that a [conservative Republican] would like the Supreme Court to reach… .” Not because he has some kind of philosophy.

I don’t want a judge who allows the government to violate fundamental rights whether or not the framers would have recognized the right as fundamental. The Ninth Amendment suggests that maybe the framers agree with me about that. My vote on Kavanaugh would in part depend on how he answered that question. Of course, neither I nor Randy are considering how the personal issues now also before the Judiciary Committee regarding Judge Kavanaugh will ultimately play out.

Friday, September 28, 2018

Abortion and Climate Change

9/27/2018—Richard John Neuhaus wrote The Naked Public Square in 1984. He presciently foresaw the secular future and he worried about the effect of a valueless secularism on American society. Later, in 1990, Neuhaus would found the journal First Things.

Neuhaus came to speak at Duquesne University some years ago and he talked about his break with liberalism. He had been a liberal Protestant, but ended up a conservative Roman Catholic.

He said he felt betrayed by liberalism over abortion. He expected liberalism to champion the unborn as the latest population vulnerable to oppression. He praised liberalism’s defense of equal rights, especially in the area of race, and could not understand why this traditional understanding would not be extended to the unborn.

If it would not be, there must be something wrong with liberalism.

It was a compelling story. And it made me wonder where the equivalent conservative turned liberal story is? Conservative thought has failed humanity in the realm of climate change. Climate change is a catastrophic turning point in human history. It is not a specific evil, but it is a specific threat. Conservatism has blocked all efforts to deal with the problem. Indeed, in the name of denial of the threat, conservatism has undermined the notion of truth itself, pursuing ungrounded skepticism that now undermines all rationality in politics. This last movement is known as the death of truth, or the post-truth age.

In terms of skepticism, conservatism has plenty of company in the postmodernism of the left. But climate change is uniquely the responsibility of the right, because the phenomenon is a predictable consequence of a market failure that conservatism, as the market driven force in American public life, had a responsibility to publicize and fix.

The market failure was simply that of the tragedy of the commons. Because no one owns the climate, people abused it even though doing so was in no one’s long term interest. If industry had had to pay for changing the climate, there would not have been enough money to do so. A stable climate is much more profitable for everyone. But, since no one did own the climate, the market acted as if changing the climate was cost free. Actually, the costs of a warming Earth are enormous.

Why did this happen? Simple greed overwhelmed principle. There never was any actual explanation or defense. Global warming that robs South Sea people of their territory and others of their livelihoods and property, is a kind of theft. Heavy carbon users in places like America and China are stealing from those who are the most exposed to the effects of climate change.

Free market theorists should have been the first to insist that a carbon price was needed to mimic the effect of a private property regime in the climate. But the conservatives I know just put their heads in the sand and allowed the carbon extraction industries to take over the Republican Party and the right generally.

In this way, conservatism failed its most significant test, just as liberalism did in the issue of abortion. Neuhaus, who died in 2009, should have seen this. He should have talked about it. I don’t believe he ever did.

Wednesday, September 26, 2018

Constitution Day Talk at Robert Morris University

9/26/2018--The title of the Address was "Taking the Threat to Democracy Seriously: The Truth/Justice/Democracy Initiative. The talk is now available here.

Sunday, September 23, 2018

Politics After the Death of God

9/23/2018—If you had to use one word to describe politics today, angry would be pretty accurate. This anger has no real content. As the 1976 movie Network predicted, “We’re mad as hell and we’re not going to take it anymore.” A lot of people have said that Network predicted the Age of Trump. But what is most poignant about the movie is that those people shouting out their windows at the end of the movie had no idea of what their problem was and could not have described it. In the words of the headline in the New York Review of the new Network play, Mad As Hell About What? It isn’t obvious what we are mad about and the usual bromides are irrelevant. The people who say we’re mad about some issue or other are wrong.

We are not angry about some issue—government spending, taxes, the environment, social issues. None of those things could account for this kind of anger.

It would be closer to the actual phenomenon to say, we’re mad as hell that we’ve been robbed. We have lost something crucial and necessary. We know that. We sense something to which we feel entitled, though we cannot say what it is exactly that we have lost.

I believe we have lost the solidity and reliability of the good universe. At least my suggestion reaches the depth that is obviously driving us.

You can put that suggestion any way you like—we have lost God; we have lost meaning; we have lost purpose. It makes you furious and, as Fintan O’Toole noted in that same New York Review story, this kind of fury is “dangerously satisfying and…treacherously entertaining.” Especially is this so in a world in which there is nothing else other than passionate intensity. Our anger is its own justification.

How do we escape this anger? The only way out is to rediscover real purpose, real meaning, real value, in the universe. The greatest danger of the materialism that replaced God, which insists that science does not incorporate truths revealed by religious experience, is that is leads to the view that “the universe provides no normative values to guide the future course of civilization.”

Griffin believes that we are simply mistaken. The universe does provide normative values to guide us. And that guidance is not supernatural. Since that is the case, we don’t have to hate each other. We can sit down together to discover how this is so and what we are being taught. Then we would have a politics that would work again. We could still be angry, but not about everything.

Friday, September 21, 2018

The End of Constitutional Government

9/21/2018—I talk a lot these days about the end of constitutional government. I spoke about this theme at Robert Morris University on Constitution Day.

These talks emphasize the end of elections.

But there is a more traditional fear of the end of constitutional government that we can call Presidential government. The President is not to be a policy maker, especially not a domestic policy maker. This was a real fear that the framers of the Constitution had. It is why Youngstown, the Steel Seizure Case, was so important. The decision emphasized that Congress makes policy, not the President.

This is why conservatives criticized President Obama’s immigration policies.

But most of President Trump’s economic policies are similarly abusive—aside from his withdrawing Obama era regulations. The President does not have authority to unilaterally impose tariffs. President Trump is falsely invoking a national security justification, which made no sense in the instances of threats against Canada and Europe, and is only slightly more defensible in the case of China. But even with regard to China, expansive tariffs are an economic policy, not a national security one.

As Paul Krugman points out, with abusive Presidential authority, comes favoritism in exemptions—Apple is exempt, for example. Everything about this is corrupt. Even if the policy is justified in part, it is not the President’s call.

You can say the same thing about a supposed two-State NAFTA agreement. No authority for that either.

Maybe worst of all is the widespread suspicion that Justice Department opposition to the AT&T purchase of Time Warner was politically motivated. That is precisely what you would expect from Presidential power abuse.

The real question is, where are all those conservatives who criticized President Obama’s immigration policies? They were justified then. Don’t they see the real threat in front of them?

There is something comical about worrying about same-sex marriage and desperately trying to get Judge Kavanaugh on the Supreme Court while the genuine threat to constitutional government goes unremarked. What are they thinking?

Tuesday, September 18, 2018

The Kavanaugh Story

9/18/2018--When I first heard the allegation against Brett Kavanaugh, it seemed to me absolute character assassination. And I said so on Twitter. It is hard to tell anything from news reports, but to me it sounded like a high school groping. A guy and a girl are engaged in quite consensual making out, he gets carried away and she tells him no and he stops.

Even in this era, that is not only not a crime, it is normal human behavior.

It did not sound like he pushed her into a room, pulled her onto a bed, held her down and started pulling off her clothes, which, of course, would be sexual assault. But I have now read reports that that is exactly what she is alleging. I was surprised to realize that Ms. Ford is also alleging that someone else was present in the room, which is not something normal at all.

David French of National Review wrote a column that appeared in the Post-Gazette that says he always thought the allegations very serious, but that now the issue is whether Judge Kavanaugh is lying when he denies them. That is also correct.

So, I have to admit that my first reaction was a mistake. Not only is the allegation much more serious than I realized but the absolute denial makes the matter one of veracity, which of course is an absolute for a Supreme Court nominee.

Saturday, September 15, 2018

Who’s Afraid of the Russians?

9/15/2018—This blog entry is not about the independent investigation of Russian interference in the 2016 election. The Russians broke the law hacking the emails of American citizens and groups, including Secretary Clinton and the DNC. If President Trump solicited that or encouraged that, he committed a crime and should be punished. Certainly impeached and removed from office. (No evidence he did, however. The Russians did this on their own.)

We need to protect all our systems from hacking.

But what about the other, far more pervasive Russian interference—-all those Russian fake ads and disinformation? Do we need to be afraid of that?

Have you seen this stuff? There is an example on the page of a review of Alex Klimburg’s book, The Darkening Web, in the New York Review, from April 5, 2018 (review by Tamsin Shaw), which shows an arm wrestling match between Satan and Jesus. The headline says, “Satin: If I win Clinton wins!” Jesus replies, “Not if I can help it!” At the bottom, the ad, on Facebook, says “Press ‘like’ to help Jesus win!”

It’s nice that the ad did not associate Trump with Jesus. That was delicate. But as for the ad itself, why would Americans worry about this? At the same time that this was going on, intelligent, well-known Americans on the Right were calling the 2016 election, the Flight 93 Election. Whatever they meant, that analogy had Hillary Clinton as an Islamic terrorist ready to kill Americans at the Pentagon by crashing a plane. That would have justified shooting her. At least in the ad, Clinton herself might be an unwitting agent of Satan.

The point is, this is crazy stuff. If it is serious enough to throw a close election to Trump or inflame American society, then the voters are already crazy themselves. It would be like an ad claiming Clinton runs a pedophile ring, which is also something that was around and convinced some Americans.

This kind of weird conspiracy stuff is also another reason that Kavanaugh should not be confirmed. In an ideal world, he would be rejected purely for his astoundingly bad judgment—-urging the investigation of President Clinton for Vince Foster’s murder or going into serious debt over baseball tickets. It seems to me there is something wrong with this guy and it is not about Roe v. Wade.

Anyway, the point is, don’t worry about Russians inflaming Americans with crazy stories. We should be worrying that Americans listen to this stuff.

Tuesday, September 11, 2018

9/11 R.I.P.

9/11/2018--Some people called the 2016 election, the Flight 93 election. The stakes were high. But people lost their lives on 9/11 and no election is entitled to that title.

Aside from the somber tone of remembering the loss of life, what have been the consequences of that unique event?

I am not sure. The attacks brought tremendous suffering. They led to two unending wars. They militarized our society. And they led to more terrorism.

But are the attacks responsible for where we are today?

President Bush did not use the attacks as an excuse to go after Muslims. He was very clear about that.

The biggest result, aside from the horrible loss of life, was that the opportunity of a that 2001 world were squandered. There was a moment then of the possibility of post-cold war peace and development. 9/11 destroyed that, for sure.

So, R.I.P. my follow countrymen. You are remembered.

Sunday, September 9, 2018

Happy New Year

9/9/2018—Sundown today the holiday of Rosh Hashana begins—the birthday of the world, the birthday of the universe. This is the anniversary of the Big Bang, you might say. Time began today, although that concept is strange indeed.

In Jewish tradition, the entire previous month of Elul has been one of introspection. The Saturday night before, just some hours ago, the prayers for forgiveness, called Selichot.

Rosh Hashana is the beginning of the Ten Days of Awe, culminating in the fast day of Yom Kippur. During these ten days, one seeks out those whom one has wronged to ask forgiveness and to forgive those who ask for it.

The entire holiday is a kind of technology of renewal of the spirit.

Having been a participant, I attest to its power.

But I actually have never seen it work its magic on others—maybe renewal is hidden.

I suppose you could say that it is a time for rededication, but I think that understates the holiday’s potential.

Better to say that I give up my commitments. I don’t assume anything. I will allow the holiday itself to orient my life. I might go into the holiday a Republican and come out a Democrat. Or go into the holiday oriented toward politics and come out a person who listens to a different sound of life altogether.

As I say, I don’t expect any such thing. And I am not familiar with any literature in which such things happen.

But they have happened to me.

Happy New Year.

Sunday, September 2, 2018

When Does Disagreement on Climate Become Dishonesty?

9/2/2018—When does disagreement become dishonesty?

In the August 10 issue of The Week—the remainder of the old Newsweek magazine, I think—the cover story was the summer of hell—As the World Burns. Readers may remember that the unusually high temperature in the northern hemisphere and the wildfires raging grabbed the attention of the media at that time. There were quotes from scientists that global warming was no longer a prediction but was here.

The method in The Week is to present two sides, one commentary and then at least one overall perspective. In this case, the New York Times, why are you not alarmed? Then the skeptical paragraph.

But this skeptical paragraph was unusual. Gone was any hint of denial of the underlying science. Yes, it is getting warmer. Yes, humans are causing it.

This is strange, since it is unaccompanied by any acknowledgment that some of these voices have aided and abetted false denial for year. You would think they would say that we are sorry we were wrong and helped prevent action when it might have been effective.

No. The new word is alarmism. The reason people are not alarmed is the fault of Al Gore for going on about the danger. People stopped paying attention, wrote Investor’s Business Daily.

Now this is really stupid. Gore went on and on because outlets like Business Daily doubted the warnings and prevented action. Now the criminal blames the prophet.

Then there is the right-wing innovation machine. David French is quoted in National Review as saying that “the alarmists” must admit that humans have prevented catastrophe before—-look how we cleaned up our rivers in the 1970’s.

Now this is crazy on two grounds. First, surely people like French opposed the Clean Air Act and other environmental initiatives that cleaned these things up. Second, at this very moment, when the danger is obvious, French is taking no responsibility for proposing measures to prevent further damage.

You should never call the people who disagree with you opponents. You should never call them dishonest. But I don’t know what to call this. These conservatives are treating global warming as a political issue they are trying not to lose. Why? Climate change is a predictable market failure because no one owns the climate. It is a tragedy of the commons. So dramatic government action is needed to supplement the market. That is not an attack on capitalism but a recognition of its inherent limits. So, you adopt a carbon tax to mimic what the price of carbon would be if the harms it causes were factored in. Such a tax can be revenue neutral, returned to the people. French engages in vague talk about nuclear power—-again just to make a political point that environmentalists won’t act reasonably—-instead of putting that suggestion in the form of an overall real plan.

I didn’t read French in the original, nor the business editorial. But I don’t doubt that The Week got the tone right. This is now so irresponsible that it is reminiscent of the cries of alarmism in Britain when Churchill tried to warn his country about Hitler. (All arguments on the Internet end up with Hitler). Then too conservatives-—and most people said-—what are you so worried about? Unfortunately, they found out.

Thursday, August 30, 2018

Needed: A New Ontology and Epistemology

8/30/2018—Now there is an accessible slogan for the 21st century. Basically, a new ontology and epistemology means a new way of thinking about what there is and what we can know. With the death of god, announced by Nietzsche in The Gay Science in 1882, the West became materialistic in what was real and sensory in how we could know things. And this is true for most people, including most religious people. And this is both how and why science became so powerful. This worldview says that matter is all that is real and we learn things only through the five senses.

This way of relating to the universe was a long time coming. David Hume, who died in 1776, a hundred years before Nietzsche’s announcement, was a key figure. But with this ontology and this epistemology, there not only cannot be any god, there cannot be any invisible thing-—justice, goodness beauty and truth become things we agree with rather than descriptions of anything real in the universe. And the universe becomes a collection of forces without meaning or purpose. You get a headline like the one last summer in the New York Times, The Universe Doesn’t Care About Your Purpose.

Religion under this worldview becomes a kind of fiction, incapable of providing knowledge about the world.

Law is dominated by this current ontology and epistemology. Even someone like Ronald Dworkin, who wanted to claim that goodness was real in some sense, felt he had to pay homage to Hume. Dworkin therefore wrote self-refuting nonsense toward the end of his life.

I thought all this was an insurmountable dilemma. That is even why I left Judaism. Its talk of God became unreal to me.

People have a hard time seeing what this has to do with President Donald Trump. But to me it is obvious that the next step in our current worldview was the death of truth. Once truth is gone as something reliable, I lose the common ground from which to reach out to my political opponents. We then have to hate each other because only winning counts.

Before, years before, there was lying and cruelty in politics, but it took place within a context of meaning and truth. Now, there is lying and cruelty within a context of chaos and chance.

What I did not realize is that the current worldview is not at all insurmountable. In fact it was surmounted by thinkers like Bernie Lonergan, Alfred North Whitehead and Martin Heidegger. Their thinking does not yet seem to have become popularized in the culture, however. American lawyers were not all lucky enough to have a teacher like Robert Taylor. Nevertheless, it will happen. In a hundred years, it will no longer be thought strange to say that the world is more than matter and not mean that there is a supernatural realm.

Monday, August 27, 2018

Why I Took Out a Billboard

8/27/2018—Friends and family—and other people by now—are wondering why I would take out a billboard in Erie County that reads “Tax Cuts Threaten Social Security.” It wasn’t primarily because I am worried about social security. It’s that I hate lying.

I became enraged that politicians who plainly knew the truth would repeat the lie that tax cuts pay for themselves.

But, of course, we now live in a post-truth age and so the issue of lying is much deeper and more sinister than that. Lying about the effect of policies makes democracy impossible. The people are treated like children and cannot make effective decisions. We are encouraged to believe that money grows on trees.

But it is even worse and deeper than that. The lie is the foundation of totalitarianism, as Hannah Arendt argued in The Origins of Totalitarianism in 1951:

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true. ... Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow. The totalitarian mass leaders based their propaganda on the correct psychological assumption that, under such conditions, one could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.

This is why I took out the billboard, so truth would have a champion.

This culture has become convinced that there are no objective truths. This view arose first on the academic Left in postmodernisn. Now it lives on in the anti-elitism of both the Right and the Left—climate change and vaccine denial.
We must reclaim realism. Not just about truth, but about the good, the beautiful and the just. I am trying to fund a podcast series highlighting the teaching of Dr. King that “the arc of the moral universe is long, but it bends toward justice. Go to kickstarter: https://www.kickstarter.com/projects/bendstowardjustice/the-bends-toward-justice-podcast-project?ref=user_menu

Friday, August 24, 2018

The Coming Desperate Struggle

8/24/2018—Watching recent exchanges on the Law and Religion Law Professor List, it is obvious that liberal legal thinking has not adjusted to the looming loss of the Supreme Court. While liberal political operatives are acting as if Judge Kavanaugh’s nomination could be stopped, when his confirmation is actually certain, liberal legal thinkers are still acting as if certain paradigms and analogies are going to be applicable in a few short months. Specifically, in the area of same-sex marriage and religious liberty, these legal observers seem to believe that the new conservative majority on the Supreme Court will not immediately act to protect the religious right to refrain from involvement in same-sex marriage. Even if Obergefell is not itself overruled, there is zero chance that this new conservative majority will allow religious dissenters to be forced by anti-discrimination laws to do anything that compromises religious conscience. And this definitely includes discrimination in the commercial realm.

Liberals imagine that there is some rock solid commitment to anti-discrimination law because of the experience of race discrimination, which was not permitted in the commercial realm regardless of religious sincerity. These liberals are about to get a lesson in legal realism. Nothing binds judges when those judges are determined not to be bound.

What is shaping up is a very harmful clash between political/legal power, on the one hand, and cultural influence, on the other. Same-sex marriage and other aspects of LGBT rights have won the culture without question. But they have lost in Congress and the Presidency for the moment and that means they have lost the Supreme Court for a generation. This pill is going to be incredibly bitter to swallow, especially because of the refusal to face a reality that is already here. It is already too late to salvage anti-discrimination law.

The bitterness should be assuaged by the fact that this religious rearguard action is actually completely insignificant as a practical matter. The conservative protection of religious dissenters could be accommodated without the loss of a single same-sex marriage or the loss of a single other right. Yes, religious believers are about to win an unlimited right to discriminate against LGBT persons, but all this will accomplish in the end is the further discrediting of religion, especially in the eyes of the young. It need have no impact on the actual lives of LGBT persons.

Unfortunately, that insight will be lost. Despite all the signs, the loss of the Supreme Court is going to be very hard for the Left to take. No plans yet exist to use that loss to finally translate cultural influence into political power.

Thursday, August 23, 2018

Busy Day for Hallowed Secularism

8/23/2018--Busy day. The Kickstarter Campaign for the Bends Toward Justice Podcast Series went live today. Also today is the press conference underneath the billboard in Erie that I commissioned that says Tax Cuts Threaten Social Security.

I will have some prepared remarks.

Americans are tired of being lied to. But we think there is nothing we can do. This billboards shows that something can be done. It confronts one particular lie--that tax cuts pay for themselves. They don't. They add to the deficit under most circumstances and the 2017 tax cuts are adding to the deficit right now. The politicians who told this lie knew it was a lie and thought it was OK to lie to the American people. This billboard says it is not OK to lie.

I would like to see ordinary Americans get together to do things like this--create new ways to confront the lying we see in public life. It might mean billboards. It might mean something very ordinary, like asking every candidate for Congress the simple question, do tax cuts pay for themselves. If the candidate says yes, the candidate is a liar who should not be supported. We are citizens, not subjects. We live in the post-truth age only if we allow it.

Politics is complicated. Many matters involve judgment and honest disagreement. You could certainly support tax cuts or urge the privatization of social security in good faith. But democracy requires that debate be based on honest disagreements. Not on lies.

I know both parties lie. I have a list of Democratic Party lies also and I would be happy to see them confronted too. (Obamacare did not allow us to keep our medical plans. It is not illegal to accept dirt on a political opponent.) The lie about tax cuts has been a successful one for far too long and is dong real damage. Without that lie, the 2017 tax cuts would not have happened.

As to why there is so much more lying now in politics than there used to be, this is a deep problem of relativism and nihilism in our culture. I want to begin to confront that as well with a podcast series called Bends Toward Justice. The kickstarter campaign for that is going on right now.

The billboard and the Podcast Series are part of the Truth/Justice/Democracy Initiative that includes efforts to create a bipartisan pro-democracy caucus of law professors to call out both Parties. Against gerrymandering and partisan Presidential impeachment.

A best selling book, How Democracies Die, explains how it can happen in America. We must act in creative ways to save our democracy. More partisanship will not do save us. Only coming together.

Tuesday, August 21, 2018

Pantheism and Penentheism

8/21/2018—One of the issues for a hallowed secularism that is open to the divine is to ask where and how the divine could manifest?

If you are a traditional monotheist, God is a pretty simple idea. God is separate from the world. But this leads to all kinds of issues that for me are unsolvable. The problem is supernaturalism that breaks into the causal connections of the world, creating miracles and creation, but contradicting what we actually know and experience of the world.

But, once the idea of a god separate from the world is given up, God is somehow in the world—-or, if the word God can only be conceived of as separate, as a being--then in the world are holiness, the good, the true, the beautiful and justice.

The route often taken by thinkers at this point is called panentheism—-God within the world but not the same as the world. God as a kind of blueprint underlying all that we see, know and experience. So, much of the world is ugly and violent, but that is not the divine principle, which is constantly working at purifying the world and becoming more manifest.

In panentheism, you don’t ask about where the divine comes from, anymore than you ask that about God in traditional monotheism. The divine is baked in at the heart of reality.

But panentheism still suffers from a kind of dualism—-this is not God, that is God. This is the ugly part, this is the good part.

Panentheism is not entirely satisfying, but it is better than a pantheism that appears to make everything holy when we know most of the world—-much of the world?—-is not holy at all, but horrible.

But I learned yesterday during a study with my mentor of Alfred North Whitehead-—Process and Reality, for those wondering-—of a different kind of pantheism. In this thinking, God is indeed the whole of reality, but only the whole. We see and experience only partially and from this perspective there is much that is ugly and violent. But we are called through experience always to more, and in that lure to the more, to the fuller, there is our experience of the divine. And if we could somehow see and experience all of reality, we would see God face to face, so to speak. This is like St. Paul who sees through a glass now but will one day see all clearly.

Evil now becomes resistance to the whole. We try to sanctify the partial—-our experience, our group, our way of doing things, even our one lifetime—-and forget about the whole. We deny the lure of the more and shrivel in our racisms and nationalisms and partialisms. And we all do this. Instead, we should try all our lives to open ourselves to all that reality offers.

I don’t know about this. It exalts the aesthetic at the expense of the good, of morality, to some extent at least. I’m more comfortable condemning evil than seeing it as partial. In this pantheism's way of seeing and understanding, even a Hitler serves a kind of good—-helping Germans recover pride and economic security—-but errs in holding the German race as supreme, an idolatry of racism.

Friday, August 17, 2018

This Social Democratic Moment

8/17/2018—It is said that the Democratic Party is in conflict between its more progressive wing and its more moderate wing. But there is no real conflict. Today’s Democratic Party is basically an inheritor of the European tradition of social democracy. It basically seeks the protections and security of the welfare state within a primarily capitalist economy. The Democratic Party does not reject public undertakings in principle, and seeks human solidarity against an overly individualistic market viewpoint. But we are not socialists, democratic or otherwise.

The tradition of social democracy has fallen into disarray and disuse but it brought about and maintained security and prosperity in Europe for 70 years.

There is no reason to reinvent the wheel and deny that all this has been done before and thought before. The point is to cure what ails social democracy; there is no need to invent anything really new.

We have a model in this effort: Tony Judt, the great thinker and historian of the Left, who died in 2010 from the ravages of Lou Gehrig’s Disease. It was Judt who started us thinking about what is living and what is dead in social democracy, the title of his famous lecture in 2009.

Just what is living and what is dead in social democracy I will leave for another day. What Judt himself represented, however, is the first step. Judt was humble in his thinking. He was not vicious toward those he disagreed with—they might think he was, but just compare his tone with today’s exchanges.

Judt was educated in the history of ideas. He believed with Keynes that when public men proclaim that they are uninfluenced by thought, they are likely just repeating in garbled fashion an idea from the very tradition they think they reject.

Judt was universal. He believed in a common good for all. This did not mean for him the end of cultural differences. But universal values were real to him.

Judt was open to religion. He was a product of the Jewish tradition, however much he became a critic of the policies of the State of Israel. The worst aspect of the thinking of the Left today is its belittlement of religion. In doing that, the Left sacrifices that which is tender and the longing for the permanent and ultimate. Even for what is fair.

Judt was clear that the social democratic critique of unrestricted capitalism is a moral critique. And you can’t have a moral critique if religion is wrongheaded in principle—not in its particulars but in its generals.

This is the social democratic moment. The moment to celebrate what social democracy in the postwar period accomplished and how little the Reagan-Thatcher reaction to it brought to us. Ironically, Reagan’s great accomplishment was in his unflinching dedication to freedom from Soviet domination. For this he deserves to be lauded. But in this he was mostly within the post-war liberal consensus.

There is much more to be said. But only after recognition of who we are, where we are and what time it is.

Wednesday, August 15, 2018

The Catholic Church Child Abuse Scandal Comes Out

8/15/2018—A redacted version of the Grand Jury Report was released yesterday and as expected it showed 70 years of repulsive and criminal conduct by hundreds of Catholic Priests in Pennsylvania as well as probably criminal acts of cover up by the Church hierarchy. Good thing it came out and people like me who are critical of some of its recommendations had better acknowledge the important good that the Report is doing, both in allowing victims a forum and in asking questions about who knew what when in terms of persons still active in public life.

That said, there are questions about the Report. The most important one is why the Catholic Church has been singled out in this way? If the answer is that a child abuse report on abuse generally would have been too diffuse to be useful, which is true, there should certainly be another investigative grand jury now that allows all victims of institutional child abuse to come forward. Were there similar patterns in other institutions, like private schools and organized athletics, or not? There have already been some allegations about child abuse in elite prep schools over the years. (here is an example). These victims also deserve to be heard.

Second, what about innocent persons named as abusers? The public probably believes there aren’t any and maybe that is true. Certainly, the overwhelming number of accusations in the Grand Jury Report are true. But 13 of the persons named (out of 301) apparently deny the allegations and that is why the Report was redacted to exclude their names—although the media will probably be able to figure out who most of them were. Perhaps even more important, the cover up allegations might certainly not be true in every instance. So, are innocent persons being included with the guilty?

Third is the question of future reforms. Basically there are two. One is against non-disclosure agreements in settlements in civil cases. I agree that State law should be amended to prohibit all such agreements. (I don’t think the Grand Jury Report goes that far). These non-disclosure agreements go way beyond the Catholic Church. They are routinely used to protect powerful corporations.

The other reform, and this is really the focus of legislation in Harrisburg, is the statute of limitations in civil and criminal cases. In 2002, the statute was extended in both, but the change not made retroactive. That is why the Grand Jury Report only led to 2 criminal cases being filed. The last instance of child abuse in the Report occurred in 2010 and most occurred over twenty years ago.

I really don’t understand the idea of making a change in a criminal statute of limitations retroactive once it has run. If that is not unconstitutional, it ought to be. There is no constitutional requirement that there be such a limit—there is not one usually in murder cases, for example—but once one has run, surely the defendant’s right not to be prosecuted has vested.

In terms of civil liability, it really is a question of whether you are willing to bankrupt the Church over wrongdoing that mostly occurred more than 30 years ago. The Church adopted reforms in Dallas in 2002 that are apparently effective in preventing and dealing with child abuse today. Many victims have come forward and have been compensated. We have statutes of limitations for a reason. So, I wouldn’t support such a rule essentially just for the Catholic Church. But I understand how others would.

Finally, there is the question of reckoning for persons still around. The fall of retired Cardinal Theodore McCarrick for sex crimes against seminarians in June 2018 has raised questions as to who had been silent about allegations against him over the years. These are the questions that current members of the hierarchy are going to have to answer. Pittsburgh Bishop David Zubick denies there was any cover up under himself, since 2007, or previous Bishop, and now Cardnal, Donald Wuerl. But there are allegations concerning Wuerl. They, and other such allegations, will have to be looked at in detail.

Sunday, August 12, 2018

Decent Republicans, Especially Law Professors, Have Got to Stop Voter Suppression

8/12/2018—I have called and will continue to call on my fellow Democrats to stop making up grounds for impeaching President Trump. And I will do it publicly when the time comes. So I believe I am in a fair position to say that the time has come for decent Republicans, especially law professors, to stop making excuses and stop voter suppression their Party is practicing.

My friends know it is happening and they know it ought to be illegal. But they point out that White Democrats invented suppression of African-American voters and in fact did far worse than Republicans are doing today. It’s true, but is that an excuse—that 50 years ago Democrats murdered African-Americans for trying to vote and we don’t go that far?

The Justices should have stopped this stuff years ago. The intent to suppress lawful voters because of their likely votes violates lots of fundamental rights and strict scrutiny should have been applied all along. It wasn’t. What we got was acceptance of lies by the courts. Voter fraud. No partisan intent. Neutral rules. All the while a conspiracy to destroy democracy was taking place.

This becomes crystal clear in Carol Anderson’s searing column today in the New York Times. Read it and see if you are not ashamed.

Really, all Republican law professors have to tell the Justices is that it is ok to enforce the Constitution. The new conservative majority would go a long way toward saving democracy if it would bite the hand that put it in office.

Democracy is at stake. Voter suppression is one step away from cancelling elections. Think about that.

Friday, August 10, 2018

The Lynne Kelly Quote

8/10/2018—A good day for the meaningful universe. I saw a retweet by Michael Shermer of the Lynne Kelly quote:

“Some believers accuse skeptics of having nothing left but a dull, cold, scientific world. I am left with only art, music, literature, theatre, the magnificence of nature, mathematics, the human spirit, sex, the cosmos, friendship, history, science, imagination, dreams, oceans, mountains, love, and the wonder of birth. That’ll do for me.”
― Lynne Kelly

Then Jonah Goldberg, the conservative thinker, publishes a column in which he argues that political hatred is a substitute for religion—a re-enchantment creed, following Ernest Gellner. Presumably this description includes people who go to church but still hate their enemies.

The problem at base is the meaningless universe.

A question for me, however, is the status of these wonderful things that Kelly points to and that Goldberg celebrates. Are they real or just hobbies that humans have? Are there re-enchantment creeds that are true even though not supernatural?

So, there is art. Is it all beautiful? Is nature actually magnificent or does it just appear that way to a certain privileged white perspective that can afford such contemplation?

And if the good, the true and the beautiful—and justice—are in fact real (in some sense)—then why attack religion? Why play into the religion/non-religion dichotomy? Why not celebrate all the traditions that pay homage to the real?

That would be a hallowed secularism.

Saturday, August 4, 2018

What Can We Learn From the Failure of Four Secular Democracies?

8/4/2018—In one way or another, four countries may be said to represent the failure of the secular democracy project: Turkey, India, Israel and the United States. The story of each failure is different, but there is a pattern. In each, a left-leaning secular elite, generally hostile to religion, tries to create a State without religion in the public square. Some form of separation of church and state. In each, over time, a pretty religious voter majority rebels and brings to power a religious, nationalist government. In each, democratic forms are kept, more or less, but minority rights are definitely threatened.

Of course, each county is also quite different. Recep Erdogan in Turkey is pretty religious and the struggle is pretty directly religion versus secularism. Narendra Modi is pretty religious, but the struggle is also highly nationalistic with Hindus versus Muslims and others. Benjamin Netanyahu does not appear to be religious at all and the struggle is definitely nationalistic, although joined by religious fervor, as in India. In the US, President Trump is as secular as can be, personally, but is highly identified with religious believers. The struggle, though, has no religious content per se, except in allowing a very small number of religious people to practice controversial forms of discrimination.

What can we learn from the failure of the secular democratic project in these four countries? Michael Ingatieff, the President of Central European University, has suggested that liberal society will always disappoint. His article appeared in the New York Review of Books in June 2018. I wrote a letter to the editor that was not published, which I reproduce below. I should add that Ignatieff is so gracious that he wrote a short response to me, which I will not reproduce here only because he did not suggest it was for public consumption. Basically he suggested that my mistake is in the use of the word “shared.” In liberal society, people cannot share fundamental commitments of meaning. That is the point of liberal society.

I should also add that I have always been skeptical and hostile to the secular democratic project. I wrote American Religious Democracy as a rejoinder back in 2007. I believe democracy will only succeed in building societies of freedom and flourishing human life when the secular/religious split is overcome and religion is acknowledged as the positive and necessary force that it is. Not everyone is going to be religious, but everyone is going to be human, which entails some kind of depth experience.
To the Editor:

Michael Ignatieff’s dispiriting review of three books about the relationship between liberal, secular society and religion was unduly pessimistic because Ignatieff’s conception of secular society is truncated and static. On the one hand, there is religion—a rich, but ultimately irrational, communal search for meaning, belonging and the purpose of human life. On the other, there is secular society—an arid collectivity that tries, increasingly unsuccessfully, to deliver a welfare state, equality and individualism.

Ignatieff then concludes that religion will not disappear and that liberal society will inevitably disappoint. Really? With a stacked deck like that, of course liberal society will disappoint. But, then, so will religion, which, according to Ignatieff cannot deliver knowledge about the nature of reality.

Maybe the accommodation of religion and secularism has to be deeper than Ignatieff’s example of whether a Sikh has to wear a helmet when riding a motorcycle. Maybe the accommodation should be a shared search for meaning among religious and nonreligious persons of good faith.

Secularism rejects supernatural accounts of reality and holds that scientific laws are invariant. But almost all modern religions accept scientific accounts of the world and do not routinely invoke miracle to explain natural phenomena. There is much more common ground here than secularists are willing to admit.

The important issue between secularism and religion is the status of what Tim Crane calls, in one of the books Ignatieff reviewed, the religious impulse—the human hunger for something transcending the world of ordinary experience.

Secular society will continue to disappoint until it comes to terms with this impulse and its meaning.

Crane, himself an atheist, does not believe that there is any transcendent reality. But, how can anyone listen to Mozart’s music or look at the night sky and deny transcendent reality? For that matter, how can anyone listen to the words of Martin Luther King Jr., and deny transcendent reality? The arc of the moral universe bending toward justice is definitely something transcending the world of ordinary experience.

In their unthinking zeal to defeat religion, secularists have surrendered everything that gives human life purpose and meaning. But that surrender is not required by denial of the supernatural. Liberal, secular society does not have to be arid. It can be as rich with meaning as any formal religious community. And when secularism realizes that, its opposition to religion will be seen as unnecessary and will recede. On that day, all of us, religious and nonreligious, will just be spiritual seekers again. On that day, it will be possible for politics to be again a shared public search for the deepest truths of human experience.

Friday, August 3, 2018

The Media as Enemy of the People

8/3/2018--I believe even Donald Trump does not understand the harm he is doing by telling his supporters that the press publishes fake news and is the enemy of the people. Cal Thomas wrote a critical column about the press, but he ably described the meeting this week with the the publisher of The New York Times, A.G. Sulzberger.

"[Sulzberger[ recently met with the president and told him his comments were encouraging dictators to persecute and suppress independent media coverage of their regimes and worse, putting American journalists at risk of physical harm. Sulzberger said the Times was forced to hire armed guards to protect employees."

One day, a future Donald Trump will close newspapers he does not agree with and there won't be any public support to defend a free press.

It is certainly the case that the media is biased. For every Fox, there are numerous liberally oriented outlets. But, so what? There are lots of conservative leaning outlets also, like almost all of talk radio.

The real point is that no one made President Trump run for office. He should stop whining. If a lot of the media is biased against him, it is a lot better than not enough critical media. No country ever went downhill because the press bashed its leaders.

The real criticism is not bias against the President but that there was not enough criticism of President Obama--I'm just not sure that was true. There sure seemed to be all kinds of criticism of him when he was President, including foreign leaders speaking on the floor of the Congress. The pass that Obama supposedly got might just be a fantasy.

Saturday, July 28, 2018

The Truth-Justice-Democracy Initiative

7/28/2018—Readers of this blog know of my concern for the future of American public life. We can’t rule out anything, even a military coup or cancelled elections.

You can blame certain people for our current state, if you want, but I keep reminding people that Americans have been polarized and divided since the election of Bill Clinton, over twenty-five years ago. Not a single Republican in Congress voted for Clinton’s first budget. The deadlock was occurring then. Don’t blame President Trump or Hillary Clinton.

The problem is not this or that policy difference. Americans distrust and hate each other. The rabbis asked, how did Jerusalem, the holy city, fall to the Romans? They answered, baseless hatred. The defenders of the city were so busy fighting each other that they could not join together against their common enemy. That is America today.

What do we do? Calls for civility are irrelevant. We must change our thinking.

To paraphrase St. Paul, and now abides, truth, justice and democracy.

Everything starts with truth. We are told we have entered a post-truth era, even that there is no possibility of a fair representation of history.

These claims are themselves false. They are really just bad habits of mind. And they are self-contradictory. So, we must begin by taking back truth.

I am beginning that effort with a billboard in Erie County in August. Look for more details and the August 23 announcement. Hint—tax cuts don’t pay for themselves.

Next is justice. Martin Luther King, Jr. taught that “the arc of the moral universe is long, but it bends toward justice.” Because he believed that, he did not hate his enemies. His view was formed by Christianity, but is available to all of us. We do not believe this, or we are not sure what we believe, and that is why we hate each other.

So, look for a kickstarter campaign in which I raise money for a demonstration of the Bends Toward Justice Podcast Series. I plan to travel the country asking all sorts of people whether they agree with Dr. King and then to archive the podcasts. The goal is to reopen the question of moral realism and the shape of history. Does history bend toward justice? Does the universe? If so, why and how? A new view of religion may be born here.

Finally, democracy. Read the book, How Democracies Die, by Steven Levitsky and Daniel Ziblatt. The book tells the story of how various democracies have died and how we are moving in that direction. We must put aside all other differences and prevent this.

As law professors, our best contribution would be the creation of a bipartisan caucus to convince the Supreme Court—especially the coming new conservative majority—that the norm of democracy is constitutionally protected in ways the Justices have not yet announced. Specifically, the intent to frustrate the will of the people must be treated with the same opposition as the intent to racially discriminate.

So, gerrymanders, voter ID laws and any manipulation of the Electoral College must be seen as presumptively unconstitutional.

Can law professors come together in a pro-democracy caucus without regard to Party when we have been as partisan as anyone, if not more so? Why not, if the alternative is the possible destruction of constitutional government of any sort? So far, not much success. But the effort is young.

There you have it. Overall, one small effort to address the emergency.

Friday, July 27, 2018

Special Prosecutors Are a Menace

7/27/2018—I am now tweeting, like President Trump. It is a silly way to do business, but apparently necessary today. My handle is @BLedewitz.

I tweeted today about a story in the New York Times that Robert Mueller is now investigating Trump’s tweets for obstruction of justice.

Think about it—obstructing an investigation that has found nothing.

This is not the same as paying off a witness to disappear. That’s obstruction. A President urging an investigation to wrap up when he has legal authority to end it is hardly obstruction.

This is Ken Starr syndrome. Here is the Wikipedia summary, which I believe is accurate: “Starr was initially appointed to investigate the suicide death of deputy White House counsel Vince Foster and the Whitewater real estate investments of Bill Clinton. The three-judge panel charged with administering the Independent Counsel Act later expanded the inquiry into numerous areas including suspected perjury about sexual activity that Bill Clinton had with Monica Lewinsky.”

In other words, there was nothing to the original charges, so we investigate until there is.

There was no collusion with Russia. There didn’t have to be. Putin wanted Trump. First as a disruption. Then as President. What enemy of America would not have wanted Trump’s victory? So, no collusion necessary. No collusion happened. End of investigation. Mueller go home.

Tuesday, July 24, 2018

But Why Do Immigrants Vote Democratic?

7/24/2018—Democrats and independents don’t understand all the talk about illegal voting. Because there really isn’t any illegal voting. Various studies have shown this.

But that understanding is not what is actually being talked about. In an April 5, 2018 article in the New York Review, Adam Hochschild reported on the following exchange he had at a California gun show.

“At one table a man is selling black T-shirts that show a map of California in red, with a gold star and hammer and sickle. Which means? ‘This state’s gone Communist. And I hate to say it, but it was Reagan that gave it to them. The 1986 amnesty program [which granted legal status to some 2.7 million undocumented immigrants].’”

This means that 2.7 million votes in California, and now the children of those admittees, are not legitimate votes. Multiply that by the vote in other States and you get an idea of what Republicans are thinking about when they say Trump really won the national vote—-the vote of the people who ought to have been allowed to vote in the first place because they did not come here illegally.

This is not pure racism—-it actually has nothing to do with African-Americans, for example. It is nativism.

The conservative columnist Cal Thomas wrote today in the PG that the whole reason that Democrats favor immigration is that they want these votes.

Aside from the fact that all of this is deplorable anti-democratic thinking, it does raise the question Republicans don’t want to ask—-why do immigrants vote Democratic? A few years ago, President George W. Bush appeared to be ready to take that question on and contest that political narrative.

For all the talk about crime, immigrants, documented and otherwise, are more law abiding than are Americans who have been here longer. As Bush realized, but Republicans now don’t want to think about, they are a natural Republican Party constituency. They work hard. Many own small businesses. They are religious. In fact, undoubtedly, they are more likely to be pro-life than are native born Americans. They didn’t come here for the privilege of paying high taxes.

There are precedents. Cuban immigrants voted Republican for years.

The main reason that immigrants vote Democratic seems to me to be that Republicans obviously don’t like immigrants. That seems pretty stupid on the part of Republicans. As a Democrat, I’m glad they are not waking up. But as an American it would be better if they would.

Sunday, July 22, 2018

Israel Says It Cannot Be Both Jewish and Democratic

7/22/2018--I always said I would not be a critic of Israel since I don't live in a country surrounded by enemies who want to destroy me. But I am not criticizing Israel here, just pointing out what the Israeli government has just enacted. The government adopted a statute providing that Israel is the national state of the Jewish people. For this reason, Arabic was downgraded from an official language.

Obviously, any Israeli citizen who is not Jewish is now a second class citizen, as Arab members of the Knesset argued in their opposition to the bill.

There always was a tension in trying to be both democratic and Jewish. In a democratic state, if a new group gains a majority, they just take over the government. But, if a state is supposed to be dedicated to a particular religious group, what happens if someone else gains a demographic majority? If Muslims and Christians gained a majority in Israel, would they not be tempted to change he nature of the Jewish state?

But how can that be prevented if the state is democratic? For now the announcement is largely symbolic. But if Arabs threaten to become the majority, further steps will have to be taken to limit their voting rights.

It's not evil. It's just the tension between a religious state and a democratic one. The Israeli government is right--you can't be both.

Tuesday, July 17, 2018

He’s Not a Russian Agent, Just Unfit to be President

7/17/2018—It is hard to react to yesterday’s press conference between President Trump and Vladimir Putin, President of Russia. Trump raises questions about American intelligence agency assessments because a dictator who assassinates people in foreign countries says so. I did not watch the news conference but President Trump did not appear to raise the issue of the seizure of Crimea, the invasion of Ukraine or the shooting down of Malaysia Airlines Flight 17 in 2014, apparently with Russian weapons used by local military forces.

Of course the world already knew that the United States has been disgraced by this President, but that press conference was just too much. And they thought that President Obama was weak.

Where is the Federalist Society? Where is Mr. Leo, who prepared the list of judicial candidates for President Trump? Trump is President Washington’s worst nightmare—a man who admires murderous dictators.

As readers of this blog know, I fear the breakdown of democratic norms in America. But you have to sympathize with anyone who feels this man should never have been President. No, he’s not a Russian agent, just unfit to be President.

Saturday, July 14, 2018

Disgraceful Democratic Party Defense of Peter Strzok

7/14/2018--To paraphrase a recent book about politics--this is how the Left loses its mind: an FBI agent tasked with investigating a politically sensitive matter relating to a Democratic Party candidate for President, and later tasked with investigating allegations that the Republican Party candidate colluded with foreign powers to fix the election, writes in a late night email to a fellow agent, also so tasked, that the Republican has to be stopped.

This is what Democrats today are defending.

Just reverse the polarity and have an FBI agent writing about how Secretary Clinton has to be stopped. Would that be fine?

We have to stop acting in a partisan fashion and not defend the indefensible. This goes for Republicans practicing voter suppression and it goes for Democrats defending Peter Strzok.

Just to repeat the obvious. FBI agents have to be above reproach. They have to try to have no political favorites. Failing that, they can at least keep their mouths shut. Shut to everybody.

How would you like to find out that a racist Secret Service agent sent an email saying, I would hate to have to take a bullet for a black President.

Maybe there is a Secret Service agent who felt that way about President Obama. At least you didn't read an email about it.

It would be so refreshing to hear a single Democrat with integrity say, the emails didn't amount to a hill of beans, Trump is a bum, but you, sir, are a disgrace to the FBI.

Tuesday, July 10, 2018

Needed: A Nonpartisan Pro-Democracy Caucus Among Law Professors

7/10/2018--Below is a proposal I sent to a law review for inclusion in an issue on election law--too broad for their tastes. But, unless democratic norms are seen as constitutionally protected, there may not be any future election law. Ironically, once President Trump's nominee is confirmed, conservatives may be open to a new direction.
The Role of Law in Preventing the Death of American Democracy

American democracy is in serious crisis. The recent book How Democracies Die, by Steven Levitsky and Daniel Ziblatt, chillingly illustrates how close America’s experiences are to those of other nations that have actually lost their democracies. It can happen here. Unless something is done to prevent it, it will happen here.

Law cannot address all of the threats to democratic norms, many of which involve the violation of soft conventions, such as not treating political rivals as illegitimate, that do not rise to the level of illegality. Law is already responding to the current crisis where previously established constitutional norms are threatened, such as racial equality, freedom of speech and freedom of the press. What is lacking is the formal adoption of the norm of democratic self-government as a general constitutional principle. If this were done, the response by the courts to claims of partisan gerrymandering, forms of vote suppression and manipulations of the Electoral College would be much more aggressive and effective than they have been to this point.

The reasons that law has been largely ineffective in addressing the crisis are, first, the natural tendency to assume that everything is “politics as usual,” rather than the potential death throes of our system. Second, law professors and judges currently participate in the hyperpartisanship that is threatening public life. Third, disputes over substantive constitutional claims, such as abortion and same-sex marriage, and differences over interpretive methodologies, have overshadowed the much more fundamental threat to democracy that we are now facing. Finally, the adoption of any norm in constitutional law is fraught today because of value relativism and the fear of judicial activism.

These barriers to the recognition of the norm of democratic self-government can be overcome. Recognition of the fragility of our democracy is growing. In light of that growing recognition, it is conceivable that American law professors, who still share a commitment to constitutional democracy, can reach a bipartisan consensus over the need to protect self-government. Recognition of the norm of democratic self-government does not require surrender of substantive or methodological disagreements. There will still be controversy over abortion cases like Roe v. Wade and Obergefell v. Hodges and there will still be debate over originalism versus the living constitution. The norm of democratic self-government transcends these differences. Nor does the adoption of the norm of democratic self-government require establishing substantive and objective moral and political standards. This latter point was demonstrated beyond dispute years ago, in John Hart Ely’s classic work, Democracy and Distrust.

Adoption of the norm of democratic self-government would mean that any attempt to permanently embed partisan advantage so as to impede the ability of the people to express their decisions on matters of policy or election would be presumptively unconstitutional. That would include gerrymanders, voter ID laws, voter registration, election rules, voting roll purges and any national effort to manipulate the Electoral College through selective State abolition of winner-take-all.

By itself, law cannot prevent the death of American democracy. But, law does have a potential role to play in the attempt to save it.

Wednesday, July 4, 2018

In Christ There Is Neither Democrat nor Republican

7/4/2018--We wake up this Fourth of July in very grave danger to our democracy. If you don't believe me, read How Democracies Die, by Steven Levitsky & Daniel Ziblatt, which describes the process by which many other democracies have failed. Among the danger signs are demonizing your opponents, changing the rules, pushing every advantage. The soft touch of mutual toleration and forbearance disappear.

America is well on its way.

Whose fault is this? Why does that matter now?

The question is, how do we stop the momentum?

Maybe we don't. History does not have a lot of examples of countries that proceeded down this path and stopped short.

But my friend and mentor, Robert Taylor reminded me the other day of Paul's saying that brought inclusion to the early church communities. In Christ there is neither Jew nor gentile, male nor female, slave nor free. Whether you believe or not, it should be obvious what is meant. Not that Jesus is neutral, but that your divisions are not his. Humanity is one.

When I heard this, I thought, one thing is still missing. Right now, this kind of thinking would lead each side to think, god forgives him and loves him despite his sin--or in secular terms, I am right but he is human also.

But that misses Paul's point. Robert once illustrated Paul's point for me. You are not Hitler, he said. However, here is Hitler and here is you--holding his thumb and forefinger slightly apart. But there is God--pointing far across the room. Or, as Jesus himself said, Why do you call me good? Only God is good.

So, the point of neither D nor R is that none of us is justified. No one is good.

America will not be healed until each of us says, how did I contribute to the catastrophe? Where is that voice in America?

And, by the way, that question cannot be answered, I did not fight hard enough for justice--meaning against my enemies. No, the question is, how did I help lead America to mutual hatred? How did I fill my heart with hatred and provoke others to the same? How did I fail to listen to those people I disagree with? How did I take their concerns flippantly?

Then there might be hope.

Sunday, July 1, 2018

Can We Agree that not Everything Unions Do is Speech

7/1/2018--In Janus v AFSCME, the US Supreme Court struck down the agency fee for public sector unions. The agency fee is that portion of union dues that someone who does not wish to join a union must nevertheless pay. The agency fee deducts any political activity engaged in by the union. The rest of the fee--the agency fee--is supposed to be that portion of union dues that covers the provision of services to workers.

Can we agree that not everything a union does is speech? So, for example, let's say a union is obligated to represent a worker who is fired if the worker files a grievance over the firing. I hope we can all agree that this representation is not speech, even though speech will be employed. Therefore, it cannot violate the first amendment to force a worker to pay for this service--even if the worker opposes this service. A person cannot be forced to pay for speech with which she disagrees, but is often forced to pay for services that he does not wish to have. [think of the government forcing you to buy auto insurance when you would rather self-insure.]

Now take the case of collective bargaining. The union argues that wages should go up. But the worker does not believe that wages should go up because he opposes increases in government spending. This still seems to me like a service, rather than like speech. The government here occupies two roles--government sovereign and employer. The union may not argue that a law should be changed by the use of the agency fee, but only that workers should be treated in a certain way.

I believe in Justice Alito's anti-union enthusiasm, he confused the question of whether there should be collective bargaining--advocacy about that would be speech--with the question of what wages should be in a particular job--not speech for worker representation.

Tuesday, June 26, 2018

Liberal Inconsistency and Arrogance

6/26/2018—Let me get this straight. Liberals raise a legitimate question about when it is appropriate for a religious believer to deny commercial services to someone based on moral objections—the famous cake maker and the same sex wedding, for example, or the really horrible case of the woman about to miscarry—and then celebrate the denial of service to White House press secretary, Sarah Huckabee Sanders, at the Red Hen restaurant in Lexington, Virginia? What a double standard.

Apparently this is not illegal in Virginia. Too bad. I can hardly wait for Chick-fil-A to start asking women customers if they have had an abortion—that would not be illegal either in most States.

I feel the same way about yelling at Republican office holders at movie theaters. Apparently that is just fine with some Democrats, too.

I guess shooting people is next.

Others will object to all this because it is not civil. That is not my objection. I guess it would have been fine to throw Nazis out of one’s establishment before they took power. If you think President Trump is Hitler, why not?

To me this is all part of the liberal refusal to win elections. Instead of stupid actions like these, certain to aid Republican efforts to maintain the House and Senate, go register voters or go door to door or just talk to anyone you can find who voted for President Trump and try to change their minds—especially in a swing district.

I don’t see all these outraged liberals actually trying to convince anyone to vote against these people. We don’t need resistance. We don’t need impeachment. All we need is to win elections to get rid of these people.

Then, when you see a Republican you don’t like, you can hand them a slip of paper that states—"Another Democrat has been registered to vote in your honor. Enjoy your misrule while you can.”

Saturday, June 23, 2018

Best Paul Krugman Column Ever

6/23/2018--In Return of the Blood Libel, Paul Krugman really does zero in on the anti-immigrant hysteria. It has nothing to do with immigrants. In that way, it is simply a projection against the other, just as classic anti-semitism was. Why do people feel this way? Krugman admits he does not know. But the frenzy against immigrants today, legal and undocumented, is not about genuine policy differences. It is not about whether immigration lowers average wages. It is not about enforcing our laws. Those are matters for debate. But the idea that America is under some threat is crazy. Immigrants don't commit crime much--places with large numbers of immigrants have lower crime rates--they don't us up public resources and they by and large want the American dream. That does not mean that people here in violation of law should be allowed to stay, just that there is no reason to hate or fear them. Krugman's point--immigrants are the new Jews.

Monday, June 18, 2018

We Don’t Live in a Post-Credal Age—Only Power Lives in a Post-Credal Age

6/18/2018--What do we do when we really smart people are blind? The question arises out of a review in the New York Review of Books by the novelist Norman Rush of a book of essays by the public intellectual, Teju Cole.

According to Rush, Cole’s essays concern “an array of thematic problems routinely confounding to the educated secular leftcentric urban readerships of today. Here are two examples among the many that Cole discusses. One: In a world that is post-credal, post-religion, and post-socialism, in what should humanism be grounded? Two: When liberal empires engage in overseas criminality, what are the responsibilities of that empire’s domestic beneficiaries—the lucky, the talented, the wealthy?”

Cole reports that he was very excited when Barack Obama was elected President. Unlike George W. Bush, Obama was a literate, educated, thoughtful man. Cole writes, “We had, once again, a reader in chief.”

But then over time there was the realization that this man, Barack Obama, would kill, especially in drone strikes. Maybe several hundred, maybe three thousand, including women, children and innocent young men. Cole is devasted: “How on earth did this happen to the reader in chief? What became of literature’s vaunted power to inspire empathy?”

Well I can tell you exactly what happened—-Obama lives in a post-credal age. He is too smart to be taken in by simplistic Church nonsense about the sanctity of human life. Who taught him all this—-Teju Cole and people like him.

We don’t live in a post-credal age. Cole knows that the drone hits are criminal. They are wrong. So, let’s not blather about post-anything. Let’s try to revivify morality. Simplistic, old fashioned morality. Otherwise, we are playing into the hands of power.

Friday, June 15, 2018

What is Wrong?

6/15/2018—I am working a book review essay for the Tulsa Law Review concerning three books that ask the question, in one way or another, what is wrong?

People are still shocked that Donald Trump could be President—including some of the people who voted for him. How could this wreck of a human being have ascended so high in our society?

But it is deeper than that. Everybody believes that her opponents have succumbed to new lows in public life. I ask, how could Republicans not see that President Trump went to Korea, gave away the store and came back with nothing? If Obama had done it, they would be screaming for his scalp.

But Republicans say, if Obama had done this, Democrats would be applauding. How could they be so hypocritical? And maybe they’re right.

So, let’s say a lot of us are angry and in despair. Why is that?

Along comes Michael Ignatieff in the New York Review of Books, reviewing three books on the relationship between liberal, secular politics—think the separation of church and state—and religion. Ignatieff believes that religion will not go away, despite liberal anticipation of secularization. And he thinks he knows why. He writes:

Finally, a cardinal fact about liberal society is that it disappoints. It offers no radiant tomorrows, no redemption, no salvation. The most that the social democratic variants of liberalism have promised is a welfare state that seeks the slow reduction of unmerited suffering, the gradual diminution of injustice, and the increase of prosperity and individual flourishing. These public goals are what Western liberalism at its best has had to offer since Franklin Roosevelt, but they leave many people yearning for deeper collective belonging and stronger ties to tradition and community. This dissatisfaction leaves a void, which is constantly being filled by nonliberal doctrines.

Notice two things. First, Ignatieff has completely given up the effort to combine liberal values with flourishing human life. Liberal values, here secular values, just must be flat and dissatisfying. That is what immanence entails.

But, second, notice that he believes religion can counter this. Here Ignatieff is just wrong. If your society embraces a flat secular universe, it will infect religious life also. Tell me, just where in America does religion deliver “radiant tomorrows?” Not in any mosque, church or synagogue I have recently visited.

What Ignatieff does not see is that this is not necessary. He is the biographer of Isaiah Berlin and he believes that the whole point of liberalism is to narrow the reach of public life. There are no universal values. There are no great ends. The fear of Stalinism has now led to a new disaster of public life—empty and purposeless human life. Ignatieff is the human face of nihilism.

This is not necessary or inevitable. Ignatieff himself is trying to pick up the pieces in a new book entitled Ordinary Virtues. In it, he says that there are no universal values, but there are “tolerance, forgiveness, trust, and resilience.”

Not bad, but not enough. With that starting point, though, one could begin to construct a beautiful secularism. But not if beauty itself is by definition out of reach.

Tuesday, June 12, 2018

My Response to Ross Douthat Column on Free Speech Saving Us

6/12/2018--check out my response to last week's Douthat column, Why Won't Free Speech Save Us?, in Starting Points, the online magazine of the Kinder Institute on Constitutional Democracy at the University of Missouri.

Monday, June 11, 2018

The Nakba

6/11/2018—I attended a Bat Mitzvah on Saturday. It was lovely. The Torah portion was from the Book of Numbers—the story of the 12 spies sent into the promised land to scout it out. Ten came back and said the land was too fortified. But two, Joshua and Caleb, said the Children of Israel would conquer the land with the help of God. Because the people agreed with the ten, God determines the generation of slaves is not ready for freedom. Therefore, there must be forty years of wandering in the desert, though Joshua and Caleb are rewarded for their faith.

The Bat Mitzvah concluded from this story that we must face our fears and persevere.

As I said, a beautiful event.

But I was filled with sadness. The story of the spies is the story of genocide. The only way to possess the land where people are already living is to kill every man, woman and child. God is not telling the Children of Israel to conquer people living there as a new governing elite, but to start afresh in a new land.

As you would expect, in the Old Testament, having begun by conquest, murder and displacement, there is never peace in the land. There are constant wars until the Greeks come and subdue everybody—followed by the Romans.

I don’t mean this as a criticism of the people in the story. They had just left Egypt and slavery. They were returning to their ancestral lands. But, there were now people living there. It would have taken a real miracle for the story to end peacefully.

Now, why wasn’t the story told this way in the very liberal congregation? If it had not been for 1948, it might have been. But we now know that essentially the same thing happened then—-what the Palestinians call the Nakba—-the catastrophe.

Americans have no idea of this history. They imagine the Palestinians chose to leave. Many did. Most were forced out. People living in Gaza tell stories of their villages only a short distance away. But they are not allowed to return.

Of course the Nakba is more than just forcible displacement. Even if all of the Palestinians had stayed, they had lost much of their land.

The parallels are just too obvious and painful. Again, it is impossible to blame the Jews who were entering the land. They had just survived the Holocaust. But, by and large, they did not come to share the land but to start afresh. The UN mini-state was the result. Those lines were erased in a war the Jewish occupants did not start.

Judaism and Islam each has its own personal God. Each religion tells of all these injustices in ways that justify its people. There is no path to peace without acknowledging all these wrongs. Sometimes, history puts innocent people in the way of each other. It is not clear how justice will eventually come, but it must.

None of us is innocent. The US began in the very same way. There were people here. They were displaced and killed. They are not getting their lands back either.

But if perfect justice is unattainable, reconciliation is not. It will probably require the end of the personal God of justification, however, to get to reconciliation. And that will take a long time.

Tuesday, June 5, 2018

Yes, the President Can Pardon Himself and This Court is Going to Vote for Religious Believers

6/5/2018—Two utterly unsurprising items in the news from yesterday. First, the President claims he can pardon himself. Here is the language of the Pardon Clause—"he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Not only is there no limit on the power, it is worded as if to remind us that the remedy for abuse is impeachment and removal. So, yes, he can pardon himself and then Congress should get rid of him.

The President is liable for state crimes, so he would have to shoot Comey in DC, in Giuliani’s weird hypothetical.

Second, the Supreme Court ruled in favor of the baker. As I told my Con Law class, Justice Gorsuch was appointed to protect religious believers and that is what he is going to do, which means a majority to do that.

The theme of hostility to religion, or a non-neutral application of the law is interesting. The baker was cited for refusing to make a generalized wedding cake. Three other bakers were not cited for refusing to make a cake with a gay-bashing message. Although decided under the free exercise principle of a non-neutral law, I believe the case would go the same way if there were any other basis to refuse to make a cake. In other words, the law recognizes free expression rights in bakers making cakes. So, how can you distinguish any opposition by any other baker?

As for the anti-religion comments, these are the same comments a lot of people now make about religion in the context of religious exemptions—they are routinely called a right to discriminate, rather than a right of conscience. So, the Court still has respect for religion. But a lot of Americans do not.

Religious believers should remember that they are not practicing live and let live here. There are plenty of people who would love to revere the Obergefell same-sex marriage case if they could. Time for a grand bargain?

Friday, June 1, 2018

Why Won’t Free Speech Save Us?

6/1/2018—This is a letter I wrote to the New York Times commenting on a Sunday column by Ross Douthat.

To the Editor:

Ross Douthat wrote an excellent column arguing that a purely procedural free speech will not save us, (5/27/2018) but neglected to say why that is. The reason is that free speech was never meant to function procedurally. The purpose of free speech is to aid in a society's search for truth. Once the concept of truth is surrendered, there is no point to free speech. Therefore, to save ourselves from the rot, we must ask a simple question. When Martin Luther King, Jr., said, "...the arc of the moral universe is long, but it bends toward justice," was he speaking gibberish or was he correct? For too long, left-wing intellectuals, joined now by Donald Trump, the nihilist-in-chief, have gotten away with leading our society into the ditch by denying King's vision. Let's finally have an actual debate about materialism and moral realism. I believe Dr. King will hold up very well.
In a pitch for a piece in the Online magazine Starting Points, I amplified this point.

Douthat suggested briefly why he thought that free speech by itself is an inadequate response—free speech has become merely a procedural value, a right to argue and nothing more: “If you want a healthy culture of debate, it’s not enough to complain that Marxists and postmodernists are out to silence you; you need your own idea of what education and human life itself are for.”

The very form of Douthat’s suggestion requires some form of moral realism. It requires the commitment that there is an actual answer to the question, or at least better and worse attempts to answer the question, what is human life for? That sounds very much like what would be called today an essentialist and foundational account of free speech. Free speech would then be justified not as a procedural right alone, but as a part of a people’s search for truth.

Without that underlying substantive commitment, there is little point to free speech and no good reason to tolerate speech that we hate. Unfortunately, that commitment today is lacking, both on the political Left and the political Right. We have become materialists, relativists and nihilists. Not free speech alone, but only a commitment to truth, will save us.
There is a difference here between law and culture. As a matter of law, the First Amendment protects the right to speak without regard to anything else. The law ignores the content of speech and the purpose of speech in all but the most extremes contexts, ie., an immediate threat of violence. That is why free speech is treated as a procedural right.

But in terms of the culture, it was always assumed that there was a point to free speech as a whole. The best, the only, way to assure progress toward truth was to let the people hear the speech of all and then decide over time what to do and what to believe. Yes, at a certain point, Justice Holmes seemed to turn this upside down by defining truth as what people came to believe, rather than the other way round, but there was still an assumption that deliberation and decision by the people were the ultimate goal.

We live at a time when this faith—that deliberation can be encouraged and trusted—is missing. When people think about it at all, they do not trust their fellow citizens. Therefore, bad ideas must be kept from them. Free speech transforms from an engine of liberation to a weapon of oppression. Robust exchange is just another form of harassment. Obviously this is bad for universities—and bad for football teams disciplining their players. But it is disastrous for anything like democracy.