In case anybody hasn’t noticed it yet, American politics have been realigned, paving the way for a growing Republican electoral dominance. But don’t point it out to an actual Conservative – they’re still in the habit of imagining themselves as an oppressed minority, fighting off the cultural onslaught of “Hollywood” or the “elitist liberal intelligentsia.” It’s understandable, considering the beginnings of the Conservative Movement as a reaction to the Cultural Revolution of the 1960s. For Americans that weren’t quite ready for interracial sex (nothing yet on the gaydar screen), recreational drugs, and any critical thinking that might have undermined religious, nationalist, or consumerist orthodoxy, some reassurance was needed. The business community, having been scared shitless by the threat of American socialism, located this political base (and the Republican party) quite easily. For more than 30 years, wealthy capitalists have poured money into elections, purchased media outlets, and sponsored right-wing foundations and think tanks to refine and transmit their message. In the last decade, this machinery was quite effective in bringing down President Clinton and in narrowly installing President Bush’s son in the White House. More recently, they’ve been turning their sights on Princeton.
Academia, the last remaining venue where anyone bothers to question things that seem profitable, makes an obvious target for the Right. Their much-amplified “struggle for academic freedom” works within the broader conservative narrative of Discrimination – in this case, between “accurate” and “inaccurate.” Having deemed the Giant Investment Banking Vacuum to be a force insufficient for the indoctrination of Princeton students – after all, there are always some budding lawyers in the bunch – alumnus Steve Forbes and other “philanthropists” underwrote their very own ideology machine in the summer of 2000: the “
James Madison Program in American Ideals and Institutions.” Fueled by right-wing financiers like the
Olin and
Bradley foundations, the James Madison Program has raised tens of millions in support of its ideological agenda at Princeton.
Houston, we have a Program…Earlier this week, I made the highly masochistic decision to attend a James Madison Program lecture titled "
Lawrence v. Texas: The Worst Supreme Court Opinion in History?”
Lawrence, for those of us who are not fluent in constitutional case law, was the 2003 decision that declared state laws against homosexual sodomy to be unconstitutional. It was not legal jargon that made the lecture so painful, however, but the delight with which guest speaker Nelson Lund of George Mason Law ridiculed a decision that protects the rights of a minority population. To fits of snide laughter from a largely dyed-in-the-wool conservative audience, Lund deconstructed each line of the
majority opinion’s opening. The notion that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct” was considered utterly laughable. But no more so than the assertion that the case “involves liberty of the person both in its spatial and more transcendent dimensions,” which Lund, despite his impressive academic and legal credentials, claimed to be utterly incomprehensible.
Perhaps Professor Lund missed the point of this language because he does not recognize the debate over sodomy law in terms of Enlightenment Reasoning vs. Theocratic Dogma. In fact, he made it quite clear that he had done his best not to think about the merits of the issues at all. Like his ideological peers in the Cult of Robert George / James Madison Program, Professor Lund believes that members of the Supreme Court shouldn’t actually do anything other than rule on administrative minutiae while slowly dying on the bench (since any meaningful protection of individual rights requires the anathema of “substantive due process”). To confirm this, I asked him if the Supreme Court should ever have had a role in deciding issues such as the constitutionality of
anti-miscegenation laws in the South (which had made it a criminal offense for whites and “coloreds” to marry and create “half-breeds”). His answer was, essentially, “No.”
Lund’s preferred mechanism for settling issues involving basic human rights is something called “competitive federalism.” Of course, the last major “competition” over federalism was a little gentleman’s disagreement called “the Civil War” – which by most accounts was decidedly unpleasant. The constitutional amendments and political order that followed it inaugurated a new era of economic and social development, specifically by repudiating the backward, parochial doctrine of “states’ rights.” Having taken moral leadership on a number of issues in the 20th century, the Supreme Court’s role as guarantor of individual rights is well established. Except, perhaps, to Market Fundamentalists who want to turn the clock back to Warren G. Harding (or further) by systematically dismantling everything from labor unions and
Social Security to the FDA and
environmental protections. Of course, Lund and George don’t need to own up to their political preferences; they can simply use rhetoric about “traditions” and a “constitution in exile” to disparage the last 150 years of American history and progress, pretending that it has all been wholly illegitimate. Clearly, the conservative movement knows how to fight on all fronts: artfully manipulate social wedge issues to build electoral clout, while your academic
assets crank out the legal justification for a complete rollback of the modern nation-state. Unfortunately, the unholy alliance between Market and Christian Fundamentalists may soon bring us a reality that more closely resembles the Salem Witch Trials than the Gilded Age.
The height of hypocrisy was saved for the end of the lecture, in an exchange between Professors George and Lund. They considered, with no sense of irony, the extent to which courts are more influenced by “elite” opinion than by that of the broader public. Then, confident in their righteousness and their populist credentials, they concluded the Ivy League lecture and proceeded to the reception area for hors d’oeuvres, no doubt courtesy of the James Madison Program’s wealthy conservative patrons. It was easy enough to imagine similar gatherings taking place with Congressional leaders, but I suppose not everyone received the memo about legislators also taking “elite input.”
Ironically, the recent GOP dominance of government may have brought me closer to Professor Lund’s position on at least one issue… (Lund is a “Professor of the Second Amendment” at the George Mason University School of Law.)