Part 2 of the series, "The Structure of Lies in Conservative Jurisprudence".
On his Mythic America blog, religious studies historian Ira Chernus—whose son is gay and married—has a typically insightful post, On DOMA, Right-Wing Justices Got It Right — And Wrong. In it, he tackles two main dynamics: the relationship between conservatism and bigotry, and the relationship between two different modalities of conservatism, one typified by Justice Kennedy's opinion striking down DOMA, and the other typified by the conservative dissenters. This piece represents an ideal stepping-off point for the series that follows, because it helps clarify the origin point—or perhaps “fissure” is a better term—of where all the troubles I'll be discussing can be traced back to.
Chernus starts with Antonin Scalia's dissent in Windsor, which he rightly notes “fairly screams: I’m not a bigot. I’m not. I’m not,” and goes on to say:
We liberals sort of take it for granted that bigots will be conservatives, and that conservatives are more likely to be bigots. But we all too rarely ask why that should be.
Scalia offers a glimpse of an answer here: It’s not that we have some kind of blind, irrational bias against certain groups of people, he argues. We merely want to keep up patterns of thought and behavior that have “been unquestioned in our society for most of its existence.” We want to conserve. Why do you think they call us conservatives?
Scalia’s partner in conservatism, Samuel Alito, agrees emphatically in his dissent.... It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. … Nor is the right to same-sex marriage deeply rooted in the traditions of other nations.” So how can it be a fundamental right?
In other words, if you ain’t doin’ what we’ve always done, you ain’t got no right to be doin’ it — at least no legal right protected by the Constitution.
That last line is a pretty neat summary of conservatism. It's what they call "ordered liberty", and slavery used to be an integral part of it. Forced childbirth still is. Moving on:
Alito goes on to explain why. The opponents of DOMA want “the recognition of a very new right, and they seek this innovation … from unelected judges.” Those judges had best be cautious, he warns, because “the family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.” No one “can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.”
In other words, when you start doin’ things different from what we’ve always done, no one knows what you’ll do next. That makes life feel unstable, off balance, and dangerous. Conservatives conserve because it makes them feel safe.
After considerably more detail, Chernus writes:
Behind all this legalese we see the link between bigotry and conservatism. The essence of bigotry is treating people unequally — giving rights, privileges, and respect to one group that are denied to another group. The people with the rights and privileges pretty quickly get used to having those advantages. After a while the inequality becomes tradition, the way things have always been. As long as things stay that way, the world seems familiar, predictable, and therefore safe.
But as soon as there is any substantial step toward more equality — whether it’s women getting the vote, blacks going to school with whites, undocumented immigrants getting a path to citizenship, same sex couples getting married, or whatever — conservatives think, “Hey, if this can happen, who knows what can happen next?” As Justice Alito wrote, “No one … can predict with any certainty what the long-term ramifications” will be.
So the right-wing justices did get something right. As they made clear, resisting same-sex marriage is merely the most current example of what’s always the really crucial issue for conservatives: continuity versus change; the familiar, which is predictable, stable, and safe (or so they want to believe), versus the unfamiliar, which feels so unpredictable, unstable, and scary. The essence of their arguments, whatever the issue, always comes back to conserving the old so we can avoid the uncertainty of the new.
OTOH, he immediately goes on to note:
Justice Anthony Kennedy, in the majority opinion, pointed out part of what the conservatives got wrong. If you really want to live in a stable, predictable society, he wrote, you should strike down DOMA. “By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”
Kennedy recognizes the value of stability and predictability. But he understands that sometimes you get more of it by allowing change than by keeping things rigidly the same. That’s what makes him the swing vote on the Court.
This has long been roughy the supposed official position of so-called “Burkean” conservatives: gradual, organic change responding to changing circumstances from below, preserving stability by shifting gradually over time. But, of course, Corey Robin has convincingly demonstrated, in The Reactionary Mind, that Burke himself was not a “Burkean” when push came to shove. That doesn't necessarily mean the “Burkean” conservatism is only and entirely an illusion. It certainly is an illusion as a political ideology, which is Robin's point. But there's another way to think about conservatism, in terms of a cluster of traits as described in the 2003 meta-analysis “Political Conservatism as Motivated Social Cognition”, or, relatedly, in terms of the “big five” personality trait of consciensciousness — both of which Chris Mooney discusses in his book, The Republican Brain, The Science of Why They Deny Science. While these traits can — and in recent decades in America certainly have — produce a strong tendency towards irrationally held dysfunctional beliefs, they are so broadly and deeply embedded in a significant minority of human beings that they must have a more benign overall potential — a potential, arguably, to orient us toward risks that conservatives themselves might not have the best solutions for, but which still surely merit our concern. Call this, if you will, temperamental conservatism.
While not strictly pathological in and of itself, temperamental conservatism does carry within it a distinct potential for pathological development, which I described and illustrated in a 2010 diary at Open Left, "Pathologizing conservatism: The demonization of Park51 as template for a case study", which drew on Media Matters' compilation of a timeline mapping the growth of Islamophobia focused on the so-called “Ground Zero Mosque” -- which was, of course, neither at Ground Zero, nor a mosque. In that diary, I noted:
Conservatism per se--particularly in any given individual--does not always lead to stigmatization, isolation, demonization persecution of outgroups, but conservatism does involve tendencies that can lead in that direction when the conditions are ripe.
And, of course, those tendencies also make it possible for conditions to ripen, which is how a potentially benign set of tendencies — one that exists as part of our genetic heritage, and that clearly has some utility for small groups cohesion and other evolutionary conditions, nonetheless leads to pathological behavior on a mass political level. How to manage the pathologizing tendencies and take advantage of the potential benefits is a tricky question, but I provided one possible answer to it in a a 2006 diary, ”Liberalism is the 'True Conservatism'” in this temperamental quasi-Burkean sense. In it, I wrote:
If the conservative answers have repeatedly been wrong for America, the conservative questions have not -- at least some of them. The question of how to preserve social order is a valid and important one, even if the question of how you keep blacks, women, immigrants, gays, Jews, etc. in their place is not. And it is in this sense -- where conservatives have been mostcorrect -- that liberalism has shown itself to be far superior in answering the questions:
- You preserve social order by including the so-called "undesirables." You grant them the dignity they deserve, simply by being human, and they proceed to act with dignity. It's as simple as that. (You think gays are hedonistic narcissists utterly destructive to social order? Then recognize their right to marry. And stop treating them like second-class citizens.)
- You preserve religion's place as a polestar in people's lives, precisely by keeping it separate from the vagaries of politics, in which change is the only constant, and compromise a guiding principle. You render unto God that which is God, and unto Cesaer that which is Cesaer's.
- You preserve the integrity of local communities and their institutions by engaging the power of state and national government to deal with problems that are too large for them to handle, that would twist and distort--if not utterly break them, if they were left to stand alone.
- You maintain historical continuity, and respect for the nation's traditions by rethinking both in the light of new experience, and the experience of new Americans. Self-reinvention is our most hallowed tradition.
- You command respect for authority by exercising authority with respect for the people, who are the only legitimate source of authority.
- You preserve the highest levels of personal morality first by granting people the freedom to discover its logic for themselves, and embrace it as their own freely chosen commitment, and second by insisting on the public morality of a just and equitable social order.
In short, you deliver the most legitimate desiderata of conservatism by embracing the practices, policies and ideals of liberalism.
Liberals are the true conservatives. And this fact--fully and consciously assimilated by liberals themselves--is perhaps the surest foundation on which a new and lasting governing liberal majority can be built in America today.
When I wrote that, back in 2006, it was still possible to imagine that Barack Obama, for example, represented an example of the potential I was writing about. Instead, his neo-liberal bad example only makes it that much more difficult to grasp the task that confronts us. Compromising with conservatism on its own terms — or, indeed, on any terms that it finds acceptable as it exists in America today — is a recipe for disaster. But a fully developed liberal vision like the one described above can actually give American conservatives a great deal more fundamental satisfaction than anything they or neo-liberals like Obama can come up with on their own. To realize that vision, however, we need to be absolutely clear about the failures of the past. You can't fix something you don't realize is broken. Which is why it's so important not to pussyfoot around and obfuscate the centrality of lies in actually existing conservatism. It's this promise of, and hope for a world far better than the one we now know which ultimately motivates this diasy series — not simply a desire to “bash conservatives”.
At the end of his diary, Chernus concludes:
Now, with the Court’s decision in hand, more courageous and clear-thinking conservatives can join with moderates and liberals across the country to honor the “personhood and dignity” (as Justice Kennedy put it) of every American by granting everyone the right to marry whomever they love.
Of course, this was only possible as a result of intense, prolonged, highly organized struggle. In light of the Kennedy and the Court's near-simultaneous striking down of the Voting Rights Act, the need could not be clearer for a similar degree of struggle across issue areas to encompass the full range of human dignity as liberals understand it.
With that in mind, we're now ready to consider the role of lies in confirming rightwing justices, starting with former Chief Justice William Rehnquist.