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| Any logical incoherence in the foregoing paragraph jump out at you? "Americans' First Amendment rights?" As long as you, minmally, abstain from citing or writing favorably about the words & phrases fundamental to the "Woke" cohort? Moreover, your use of such terminology (unless evoked disparagingly) precludes your eligibility for federal employment in 2025 and beyond. |
THE CONCEPT OF FREE SPEECH evolved in the West for 2,000 years, beginning with the Athenians (although not without a few setbacks, such as the death of Socrates). But America was the first country in history to enshrine a formal, legal, and enforceable protection for free expression, ensuring that people have the right to speak no matter who’s pissed off or how powerful they are.
Whenever a society collapses in on itself, free speech is the first thing to go. That’s how you know we’re in the process of closing up shop. Our legal protections remain in place—that’s why so many of us were able to smack the Trump piñata to such effect—but the culture of free speech is eroding every day. Ask an Oberlin student—fresh outta Shaker Heights, coming in hot, with a heart as big as all outdoors and a 3 in AP Bio—to tell you what speech is acceptable, and she’ll tell you that it’s speech that doesn’t hurt the feelings of anyone belonging to a protected class.
Flanagan, Caitlin. On Thinking for Yourself (Atlantic Editions) (pp. 72-73). Zando. Kindle Edition.
Zack De Piero taught writing for four years in the English department at Penn State’s Abington campus. Then he resigned and, in 2023, filed a lawsuit alleging that administrators and other faculty members discriminated against him because he is white. In his telling, the school’s diversity, equity, and inclusion initiatives violated the Civil Rights Act of 1964 by creating a hostile work environment. In response, hundreds of academics signed an open letter calling the lawsuit a reactionary attack on “ongoing efforts in diversity, equity, inclusion, and belonging.”The dispute, like so many in higher education, pits a faction that believes that the prevailing campus attitudes toward identity are racist against a faction that believes that they help fight racism. It is hardly unique in raising the question of whether DEI initiatives ever go too far. Still, this case stands out, not only because it resulted in a federal lawsuit, but because earlier this month, a judge denied Penn State’s motion to dismiss De Piero’s hostile-workplace claim. The case can now go to trial.
The ruling comes as backlash against DEI initiatives is growing and questions about when they violate antidiscrimination law remain unsettled. More significant, it establishes a standard that federal judges of varying ideologies could plausibly adopt, and that other plaintiffs can use to bring bias claims to trial.
This isn’t a case where, say, a white Donald Trump appointee who hates academia took an extreme position, like “Any departure from color-blindness is illegal,” that would be overturned on appeal. This particular judge is more difficult for DEI partisans to dismiss. Wendy Beetlestone, a Black district-court judge born in Nigeria, was appointed to the bench by Barack Obama. She was announced last year as the University of Liverpool’s next chancellor; she is clearly not hostile to higher education. And the substance of her ruling is hard for would-be critics to reject in full…
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Critical race theory was yesterday’s scandal. Today, diversity-equity-and-inclusion initiatives are in the crosshairs of critics across the political spectrum who seek to dismantle any notion that racism is systemic and thus deserving of systemic remedies. Though the crisis at Harvard University began with questions concerning the prevalence of antisemitism and ended with charges of plagiarism against its president, Claudine Gay—who then resigned—for many of Gay’s opponents, D.E.I. initiatives appear to have been the main target. When the conservative activist Chris Rufo wrote in the Wall Street Journal about the role of conservatives, including himself, in ending Gay’s presidency, antisemitism and plagiarism received no meaningful mention. Instead, Rufo focussed on conservatives’ efforts to end D.E.I. in higher education. In his own long statement, Gay’s chief critic, the billionaire hedge-fund manager Bill Ackman, said that D.E.I. was the “root cause” of antisemitism on Harvard’s campus…
OK, whatever your opinion of the breadth of consenting adults' erotica proclivities and indulgences (irrespective of media expression format), this lame willful conflation is, well,—utterly predictable, I guess. First, gauzy as it may be jurisprudentially, it's "obscenity" that crosses the decisis ConLaw line. Moreover, the characterization of porn as "omnipresently manifested" in "transgender ideology and sexualization of chlldren..."
(** And, I've keyword/phrase-searched most of the principal red-meat straw-gender-fluid fallacies spanning the text in pursuit of their conclusionary contexts. Yeah, the riff is endemic. Don't take me at my word. "Do Your Own Research." Cmd-F is Your Friend.)
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| ** Gotta love SECTION 4(26), by Peter Navarro, now convicted & sentenced for Contempt of Congress. |
...On the right there is constant complaints of the “liberal bias” in the media, and on the left there are complaints of the rise of right-wing media which they feel is biased and radicalizing. The culture wars focus mainly on schools, because those schools teach not only facts and knowledge but convey the values of our society. The left views DEI (diversity, equity, and inclusion) initiates as promoting social justice while the right views it as brainwashing the next generation with liberal propaganda. This is an oversimplification, but it is the basic dynamic. Even industry has been targeted by the culture wars… —The Neurologica Blog
Hmmm... they're gonna be hiring? (A sort of "temp agency?" I’m seein’ a Netflix Series…) What could possibly go wrong?
Wafts of Trump University in the air?
...Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.
To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.”Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.
Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.
Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.
Finally, unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.
Common-good constitutionalism draws inspiration from the early modern theory of ragion di stato—“reason of state,” which, despite the connotations that have become attached to its name, is not at all a tradition of unscrupulous machination. (Indeed, it was formulated precisely to combat amoral technocratic visions of rule as the maximization of princely power.) Instead the ragion di stato tradition elaborates a set of principles for the just exercise of authority. Promoting a substantive vision of the good is, always and everywhere, the proper function of rulers. Every act of public-regarding government has been founded on such a vision; any contrary view is an illusion. Liberal and libertarian constitutional decisions that claim to rule out “morality” as a ground for public action are incoherent, even fraudulent, for they rest on merely a particular account of morality, an implausible account.
Given that it is legitimate for rulers to pursue the common good, constitutional law should elaborate subsidiary principles that make such rule efficacious. Constitutional law must afford broad scope for rulers to promote—as the ragion di stato put it, in a famous trinity of principles—peace, justice, and abundance. Today, we may add health and safety to that list, in very much the same spirit. In a globalized world that relates to the natural and biological environment in a deeply disordered way, a just state is a state that has ample authority to protect the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events. Because the ragion di stato is not ashamed of strong rule, does not see it as presumptively suspect in the way liberalism does, a further corollary is that authority and hierarchy are also principles of constitutionalism. Finally, and perhaps most important, just rule emphasizes solidarity and subsidiarity. Authority is held in trust for and exercised on behalf of the community and the subsidiary groups that make up a community, not for the benefit of individuals taken one by one.
How, if at all, are these principles to be grounded in the constitutional text and in conventional legal sources? The sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document, afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, hierarchy, solidarity, and subsidiarity. The general-welfare clause, which gives Congress “power to … provide for the common Defence and general Welfare of the United States,” is an obvious place to ground principles of common-good constitutionalism (despite a liberal tradition of reading the clause in a cramped fashion), as is the Constitution’s preamble, with its references to general welfare and domestic tranquility, to the perfection of the union, and to justice. Constitutional words such as freedom and liberty need not be given libertarian readings; instead they can be read in light of a better conception of liberty as the natural human capacity to act in accordance with reasoned morality.
...The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax...
Watch it all closely.
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