Legal And Cultural Confusion: Individual Rights And Intolerance

Jul 20th, 2019 | By | Category: Featured Issues, Politics & Current Events

The American experiment in democracy is wrapped around precious terms such as rights and liberties:  The freedom of expression; the free exercise of religion; due process rights such as legal representation; and, because of the diversity of America, principled pluralism.  It is my argument that all of these freedoms are under siege.  Each is being challenged by a Postmodern culture that values attaining individual autonomy through outright coercion and enforcing ideological intolerance in the name of selective exclusivity.  Such developments are altering the American experiment—for the worse.  Consider these examples:

  • First is the case of Harvard law professor, Ronald Sullivan. Harvard University dismissed him as head of Harvard’s Winthrop House after he helped give Harvey Weinstein legal representation in his various trials dealing with sexual assault charges.  As reprehensible as the accusations are against Weinstein, one of the principal rights of the American experiment is that its citizens deserve due process rights, including the right to legal representation.  But as columnist Nicholas Kristof correctly observes, this is a “troubling example of a universal monoculture nurturing liberal intolerance.”  Due process rights are hard-won rights in the history of liberty and are to be protected, even in the case of someone accused of rape.
  • Second is the case of Oberlin College in Ohio. Oberlin has a remarkable history as an institution committed to human rights and liberties.  It was one of the energizing centers of abolitionism before the Civil War and was a center of revivalism during the Second Great Awakening in American history.  But, recently its reputation was darkened by a tragic demonstration of intolerance.  A black student at Oberlin shoplifted wine from a store called Gibson’s Bakery and a white clerk ran after him, attempting to grab him.  “The police report shows that when officers arrived, the clerk was on the ground getting punched and kicked by several students.  Seeing this incident through the lens of racial oppression, students denounced Gibson’s and distributed fliers claiming ‘This is a RACIST establishment.’  A university dean attended the protest, and the university responded to student fervor by suspending purchases from the bakery.”  The student who shoplifted the wine pleaded guilty to theft and acknowledged that there was no racial profiling involved in his arrest.  Gibson’s bakery sued Oberlin and won a $44 million judgment “reflecting the jury’s exasperation with the university for enabling a student mob.”  The issue with this Oberlin student was not racism but stealing stolen property, but Oberlin assumed the worst about Gibson’s Bakery, went along with the student mob and paid a dear price for its poor judgment and leadership.
  • Third is the case of Kyle Kashuv, a graduate of Marjory Stoneman Douglas High School in Parkland, Florida, a school that had experienced one of the many tragic shootings where in February 2018, a gunman killed 17 students. Kashuv was a school safety advocate and graduated second in his class from Douglas High School, with a weighted GPA of 5.345!!  He was admitted to Harvard.  But Kashuv is a conservative, advocating, among other things, the right to own a gun.  As columnist David Brooks reports, “A few weeks ago, documents leaked showing that about two years ago, when he was 16, some months before the shootings, Kashuv wrote racist comments in text messages and on a collaborative Google doc.  He was studying for the A.P. History exam with some classmates online.  Around midnight they began posting childish things.  Kashuv’s comments were repulsive—blatantly racist and anti-Semitic.  He wrote the N-word 12 times and then explained that he was good at typing that word.  ‘Practice uhhhhh makes perfect.’”  When these repulsive comments became public, Kashuv immediately apologized.  When Harvard raised questions about his comments, Kashuv wrote a letter that reflected a contrite heart filled with shame for what he had done:  “I am no longer the same person, especially in the aftermath of the Parkland shooting and all that has transpired since.”  Harvard decided to revoke his admission to the University.  Kashuv asked for a face-to-face meeting, but Harvard declared the case to be closed.  In one sense, Harvard has every right to revoke an admission to its school.  But, as Brooks comments, “In a sin-drenched world it’s precisely through the sins and the ensuing repentance that moral formation happens.  That’s why we try not to judge people by what they did in their worst moment, but how they did in their worst moment.  That’s why we are forgiving of 16-year olds . . . .”  He concludes that “These days people seem to think that the way to prove virtue is by denouncing and shunning, not through mercy and rigorous forgiveness.  Harvard could have but didn’t take the truth-and-reconciliation approach—confronting the outrage, but trying to use it to get to a deeper eventual embrace.”
  • Finally, are a few comments about the state of religious liberty in America. Religious liberty is central to the Constitution, with the First Amendment stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  But the last half of the 20th century began a rethinking of what this exactly means.  Famous Supreme Court cases began to remove religious expression from the public square:  Engel v. Vitale (1962) outlawed organized prayer in public schools; Abington School District v. Schempp (1963) declared school-sponsored Bible reading in public school unconstitutional;  and Lemon v. Kurtzman (1971) ended state support of parochial schools.  In 1993 Congress enacted the Religious Freedom Restoration Act to protect and clarify the application of the free-exercise clause of the Constitution.  This act was “the pride and joy of the Clinton administration.”  But as the 20th  century was ending and the 21st century dawning, attitudes toward the free exercise clause began to shift.  David Skeel, law professor at the University of Pennsylvania, argues that there is a growing body of legal scholarship contending that the First Amendment is too favorable toward faith:  “They’re not denying that the Constitution regards religion as special.  They’re arguing that it shouldn’t—that there’s no basis for treating religion differently from impulses like conscience or convictions.”  The result of this shift is that the Progressive left now insists that “social reforms implemented in the name of individual autonomy can achieve their aims only by outright coercion.   Hence, Progressives seek to compel employers to supply abortifacients even if this violates their conscience.  Similarly, “the freedom of same-sex couples to marry has been accompanied by an effort to conscript caterers, florists and other small-business people to participate in same-sex weddings . . . .”   As governmental power has increased in these areas, principled pluralism—“the effort to accommodate individuals and groups with divergent beliefs”—is made increasingly difficult at precisely the same time as the country has become more diverse than ever before.

Ideological rigidness (on both the right and the left) is a genuine threat to the American experiment in democracy and the protection of individual rights and liberties.  The progressive left with its embrace of individual autonomy and intolerance is perverting the very meaning of liberty itself.  And using the power of government to coerce is wrong and dangerous to liberty.  The re-evaluation of the meaning of the First Amendment’s “free exercise” clause is one of the most dangerous developments in our history.  May God have mercy upon us!

See Nicholas Kristof in the New York Times (30 June 2019); David Brooks in the New York Times (18 June 2019); and Barton Swaim’s interview with David Skeel in the Wall Street Journal (22-23 June 2019).

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