When asked to justify some viewpoint, people often invoke some lofty general principle, only to get tangled up very quickly in contradictions. Conservatives claim to be for personal freedom and against regulation, but then face the question why they don't support freedom for others, and are often willing to impose regulations on others, especially when it comes to sex. Or they claim to be pro-life, but then their accusers ask why they support war or capital punishment. Liberals tend to be less bothered by contradictions and are more likely to shrug them off. They appeal a lot to compassion and simply shrug off the costs and burdens their versions of "compassion" impose on others. Or they simply deny there's a contradiction. When people say "it's the principle," it's never the principle. It's the specific situation. And by looking at examples of "hypocrisy," we can often work backward to figure out what principles people really hold.
We can see this process at work in some of the bizarre comparisons people make between their own stances and those of famous, revered historical figures. For example, opponents of gay marriage or health care compare themselves to Martin Luther King or Nelson Mandela. The reasoning goes that King and Mandela encountered fierce opposition, and opponents of gay marriage or health care encounter opposition, so therefore the two situations are equivalent.
It's a variation on the popular crank fallacy, the Galileo Fallacy. "They criticized Galileo, and he was right. They're criticizing me, so I must be right, and of the same stature as Galileo." Ultimately it's undergirded by one of the great intellectual fallacies of modern times, the obsession with structure as opposed to content. If structure is all important, then if two conflicts have similar structure, they are similar. Unfortunately, content is supreme. Comparing your opposition to health care reform does not make you equivalent to Nelson Mandela because, for one thing, you haven't spent 27 years in prison. Beyond that, the issues are completely different.
Let's look at the pro-life thing. Conservatives claim to be "pro-life," but generally have no problem with war, killing in self defense or by the police, or capital punishment. In this case, it's pretty easy to spot the real principle. The term "pro-life" was coined as an alternative to "anti-abortion" because it sounded more positive, and "pro-choice" was coined in reaction.
But "pro-lifers" are not pro-life, as is often pointed out. They generally support war and capital punishment. So what is it with abortion? First of all, unlike an enemy soldier or condemned criminal, a fetus is defenseless and guilty of no crime. Second, Roe v. Wade was imposed by judicial fiat. Third, there's the sex angle: abortion enables people to escape responsibility for the consequences of sex.
So if the issue is innocent, defenseless fetuses, what about innocent civilians killed in war, or innocent people executed for crimes they didn't commit? Well, enemy civilians aren't wholly defenseless. They can flee, surrender, join the army, or turn against their country's armed forces. They have options, not very palatable ones, maybe, but it's war. As for innocent victims of capital punishment, I'm afraid conservatives simply don't believe opponents of capital punishment because, to be very blunt, why should anyone trust people who defend criminals? In addition, if wrongful conviction is such an issue, why waste legal resources on technicalities instead of rebuilding our legal system to focus on guilt and innocence?
On the other hand, "pro-Choice" advocates are really not very "pro-choice." They have no problem at all telling others how to select employees or lodgers, or how many disabled parking spaces to have. They have no problem at all appealing referenda in the courts, overturning the choices of large majorities of the electorate. Ah, but all those actions are to protect the rights of others. Maybe, but why exactly do the rights of those people supersede the rights of those whose choices are being limited? More to the point, what gives one group the authority to say that something is a right in the first place, and therefore claim the authority to override the decisions of others?
So why are conservatives upset by abortion being decided by judicial fiat, but okay with court decisions striking down anti-gun laws or giving unlimited free speech rights to corporate campaign contributors? They'll champion states' rights in some cases, but have no compunction at all about appealing to the Supreme Court to overturn state gun control laws. Opposition to judicial fiat sounds a whole lot like a principle, and the whole point here is that the principle isn't the principle. So in cases like this, it's never judicial fiat, it's the specific issue. Let's also note that many critics of Citizens United being rammed through by judicial fiat have no problem with abortion or gay marriage being legalized the same way.
Isn't that hypocrisy? Yes, if you really are aware of your agenda and use the "judicial activism" card as a cover. But most people don't think that deeply. In fact, most people are out of their depth in a mud puddle. So complaining about judicial activism is a quick and shallow way of articulating the feeling that bullies are imposing their will on you, and you have no way to fight back. And the real issue is they're thwarting your will; you're perfectly happy to see them do it in support of some cause you endorse. It also creates the illusion of holding the moral high ground. "Freedom" sounds so much noble than "cut my taxes" or "let me smoke pot."
Mostly it's laziness (or shallowness) and an attempt to seize the moral high ground. It's hard to defend specific issues when you're confronted by someone who simply rejects your basic premises. How do you find out what lines of argument they would find persuasive? (Hint: ask them. Say "what exactly would you accept as proof that I'm right?" Most of the time they don't have a clue, because most people only think about why they're right, not how they might be wrong.) It's far easier to enunciate some broad, high principle like Judicial Activism or Equality, except that it's very easy to get tangled up in contradictions.
A failed research effort on my part was most illuminating. I searched for lists of the worst Supreme Court rulings. I was hoping for lists of rulings that had contemporary impact. What I got was mostly scholarly lists of long-overturned rulings like Dred Scott or Plessy v. Ferguson. Or there were pivotal rulings that shaped modern jurisprudence that most people have never heard of. Or there were pro-forma inclusions that I don't think for a moment the listers actually agreed with, such as conservative sites listing Buck v. Bell, which upheld the sterilization of mental patients. So, based entirely on a subjective appraisal of liberal and conservative commentary, here are the rulings I think hit the hot buttons of liberals and conservatives the hardest.
This ruling struck down most of the limits on political campaign spending in the name of free speech. Critics ask where it says in the Constitution that corporations are persons. It doesn't. But in U.S.C. 1.1.1 - the very first page of U.S. law - it says
the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals
Think about it: how can you limit the rights of any group without simultaneously limiting the rights of the people who make up that group? And the Constitution does say
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people (Amendment IX)
In other words, just because the Constitution doesn't explicitly give corporations free speech is not grounds for saying they don't have it. The issue here is not judicial activism or free speech. It's that corporations have lots of money to spend and they spend it on conservative causes.
Not hard to sort this one out because subsequent events had such far reaching implications. Al Gore would probably have favored a vigorous military response to 9-11, including rooting out al-Qaeda in Afghanistan. Would he have gone into Iraq? It's not inconceivable, since Saddam Hussein was jerking the U.N. around on a daily basis and trying hard to act like he did have chemical weapons. Even as a humanitarian move, to rid Iraq of Saddam Hussein and end the hardship caused by sanctions, he might have invaded. Would he have racked up huge deficits in the process? Depends on how he could sell Congress on the financing. It's actually not hard to envision a scenario where Gore is President and the events of 2000-2008 play out pretty much the same. We can hope he'd have taken a longer view of Iraq and anticipated the looting and sectarian violence. But how to pay for it? Picture Gore caught between a rock and a hard place: pilloried as weak-willed and indifferent to American security if he doesn't invade Iraq, a betrayer of those killed on 9/11, yet faced by a Congress that refuses to raise taxes or cut spending.
Probably ranking a distant third on the list of recent judicial rulings hated by liberals might be this 1978 case, which ended up striking down racial quotas as a means of ensuring equal opportunity. There have been so many other erosions of preferential hiring since then that Bakke has faded into the background, but it was highly unpopular at the time.
This belongs under the heading of ruling's they'd despise if their political knowledge were more than skin deep. In 1973, the Supreme Court held that unequal financing of school districts through property taxes did not violate the Fourteenth Amendment.
The commonplace complaint that the Supreme Court has turned "conservative" is awfully hard to believe when we look at the sheer length of this list.
To be fair, a lot of liberals dislike this ruling too, but not for the same reason. This ruling allowed cities to condemn private property so it could be sold to other parties in the name of redevelopment. Conservatives don't like it because of the assault on private property, and probably because of opposition to cities getting involved in redevelopment. Liberals don't like it because it benefits powerful interests at the expense of less powerful ones.
This ruling overturned State sodomy laws and effectively shut the door on any regulation of private sexual conduct between adults. Needless to say, since it pretty much gutted State laws outlawing homosexuality, it infuriates many conservatives.
One of the early "judicial activist" rulings of the Warren Court, this 1966 ruling, familiar to every Law and Order viewer, requires prisoners to be advised of their right to remain silent and have an attorney. Most of us can probably recite the warning from memory. But it irritated, and continues to irritate conservatives because it completely ignores the issue of guilt. The actual impact of the ruling is minimal since the warning is given by rote after almost every arrest, but Miranda symbolizes the whole problem of criminals being released "on technicalities."
Nobody will admit this, but come on. All those "Impeach Earl Warren" bumper stickers that once graced (and probably held together) many American cars (since Detroit had no foreign competition in those days) weren't about interstate commerce. And Obama Derangement Syndrome just happened to crop up when we elected our first black President. The interesting thing is, black Presidents have been commonplace in the movies and on TV for some time: Deep Impact (Morgan Freeman), 24 (Dennis Haysbert), 2012 (Danny Glover). But those guys were all middle of the road, as far as anyone can tell. Mostly they came out boldly against asteroid impacts, terrorists, and the end of the world. Hey, who wouldn't vote for Morgan Freeman? Obama is unabashedly liberal, intelligent, and acts like he knows it. He's "uppity." People who think they're superior run headlong into someone who is superior, and they don't like it.
Surprisingly enough, the name of uber-atheist Madalyn Murray O'Hair is not on the Supreme Court ruling that outlawed official prayers in school (unofficial or personal and private prayer in school has never been outlawed). But this is the ruling that started the Culture Wars. Brown v. Board of Education stuck in a lot of craws, but segregation could easily be carried on simply because blacks and whites tend to live in different neighborhoods. Also, the courts have no enforcement capability of their own, and their ability to compel governments to do anything is limited. Local governments made the process a slog through hip deep mud, and in reality much of the progress was made by Congress stepping in, but most of all, the evolving attitudes of Americans themselves. And the real problem with segregation, the inequality of schools, persists because of the local funding of schools based mostly on property taxes. (My evil twin wonders if we might not be much better off had the Court said "you can have separate schools, but they will be equal, right down to the number of bristles on the janitor's broom.") So people grumbled about Brown, but formal segregation was becoming a laughingstock anyway, and the actual impact could be blunted. Whites weren't officially supreme, but they continued to hold power, anyway. But Engel v. Vitale declared unequivocally that Christianity could not have any official standing. The notion that the government couldn't declare any one denomination supreme was generally accepted, but most people took it for granted that America was religious and specifically Christian.
Well, here it is, the arch-nemesis of the Right. Roe v. Wade has it all: rejection of yet another Judaeo-Christian standard, judicial fiat, intrusion into States' rights, allowing the "undeserving" to escape consequences for their actions, legitimizing extramarital sex, a regular perfect judicial storm.
Judicial Activism: In the 1960's and 1970's, the Right was condemning judicial activism while the Left was denying it existed at all. Legalizing abortion and outlawing publicly supported expression of religion weren't activist; they were simply the natural, inevitable state of things. Now we lave liberals blasting judicial activism in Citizens United. But a little reading of conservative opinion shows just how laughable the notion of a "conservative activist" Supreme Court is. When the rulings on conservatives' hate lists start falling like dominoes, then we have a conservative activist court.
States Rights: For liberals, States' Rights were bad when they were used to justify segregation, but they're laudable when the States try to resist Federal authority and liberalize marijuana laws. Conservatives champion the rights of the states except when Congress steps in to override State regulations on businesses. Although "States rights" tends to evoke images of segregation, one of the most valiant exercises on behalf of human rights came in 1854 when the Wisconsin Supreme Court declared the Fugitive Slave Act unconstitutional in defiance of Federal rulings. When Wisconsin was reversed by the U.S. Supreme Court in 1859, the legislature urged "positive defiance." The Wisconsin Supreme Court refused to file the writs reversing its ruling. To this day, the writs have never been filed. (The Civil War sorta rendered the issue moot.) So the real principle is clear: whether States' Rights are morally justified depends on whether the Federal Government or the States are in the wrong. It's the specific issue, not the principle of States' Rights.
Free Speech: Liberals see no problem with banning discriminatory advertisements and public prayer, but protecting flag burning and pornography. Conservatives favor the opposite.
Privacy: Liberals invoke privacy when advocating abortion, but see no issue with requiring people to report their income and other business dealings to the Federal government or answer detailed census questionnaires. Conservatives view personal business conduct as private but see no problem trying to regulate private access to pornography.
Personal Freedom: Conservatives are all for gun rights but see no problem regulating peoples' sex lives. Liberals don't want restrictions on peoples' sex lives but are perfectly comfortable dictating what products people can buy.
The Sanctity of Life: Conservatives oppose abortion but are okay with war and capital punishment. (So am I - I think everyone in the capital deserves to be punished) Liberals oppose capital punishment but are willing to jeopardize society by freeing murderers on technicalities.
Private and Public Effects: Liberals see peoples' sex lives as a purely private matter, but view discrimination in hiring or renting as public, because one person imposes his will on another. Conservatives view discrimination as private because the owner of a business or hotel owns it, but sexual ethics are not private because, among other things, sex leads to babies who may have to be publicly supported.
Hypocrisy: None of the examples above are examples of hypocrisy. They are actually unarticulated recognitions of the fact that reality is complex and that weighing the pros and cons of actions may cause people to take one stance on issue A and an opposing stance on superficially similar issue B.
Both liberals and conservatives argue that the reward system of society should favor those who do the most for the society. For liberals, that's workers and intellectuals, without whom there would be no labor force to accomplish anything. Conservatives argue that any Third World country illustrates what labor alone can do without vision, capital and direction. Conservatives believe the rewards should favor those who provide the vision, direction, resources and structure to make labor productive.
Liberals tend to assume that social problems stem from inequality and lack of empowerment. Their suggested approach is to redress the inequality by redistributing wealth and limiting the powerful. In the face of some social problem, their approach is to restructure society to minimize the problem or restrict actions that contribute to the problem. Conservatives, on the other hand, tend to assume that social problems stem from sociopathic or stupid individuals. Their approach is to protect the law abiding population while restricting the sociopaths and allowing the stupid to endure the consequences of their actions. Both groups want to place the burden on the people they consider the root of the problem. Liberals want to place tax and regulatory burdens on the wealthy and privileged, conservatives want to place them on criminals and the nonproductive. Given a dangerous footpath on the edge of a cliff, liberals would close the path; conservatives would expect people to watch their steps. If people hurt themselves by reaching under power mowers while they're still running, liberals favor installing cutoffs to shut off the motor when the handle is released; conservatives expect people not to reach into moving machinery. Liberals view payday lenders as predatory; conservatives counter that nobody is forced to take out a loan and that some access to emergency loans is better than none. Nothing illustrates this point better than gun control. If gun control were only about guns, we'd have solved the problem ages ago. It's really about who should bear the brunt of laws to curb gun violence. Liberals feel the problem is the availability of guns, and the solution is to control guns. Ultimately they feel that the root problem is the inequalities that tempt some people to solve their problems with guns. Conservatives believe the problem is criminals, and the solution is to eliminate the criminals. (And I suspect "eliminate" is what many literally would like.)
Since both liberals and conservatives favor some groups over others, it's clear that neither group really believes everyone should be equal. Both have their own hierarchy they would like to see in power. The liberal theory is that groups that have been systematically deprived of a place in American society should be empowered, while the forces that have denied them a place should be held in check. Superficially, this attitude looks a lot like favoring equality. Looking below the surface, we find a widespread sentiment that the middle class is inferior. For example, there's the sneering "Little Boxes" of Pete Seeger (written by Malvina Reynolds):
And the people in the houses All went to the university, Where they were put in boxes And they came out all the same, And there's doctors and lawyers, And business executives, And they're all made out of ticky tacky And they all look just the same.
The song starts out being about houses made of ticky tacky but by the second verse, the people are made of ticky tacky. Then, in response to a question on the site Quora, "What are Middle Class values?" the lead entry (January 9, 2012) comes from "Venkatesh Rao civilized person" who writes:
Keep up with Joneses. But don't get too far ahead. The middle class has no values of its own. Its behavior is 99% driven by imitation, so values are mostly unnecessary. The underlying values are unexamined. The stated values are merely oft-repeated platitudes and bear little or no relation to the actual ones. The unexamined actual values are only visible once you leave or attempt to leave the class. The core one is simple: avoid all risk.
The disdain for the "middle class" on the part of liberals suggests pretty strongly that they consider the middle class drones, whose only value is to generate tax revenue for social programs to benefit the "real people" of society, who don't allow their authenticity to be sullied by deferred gratification. After all, a self-styled "civilized person" says the middle class has no values because they are "99% driven by imitation" and their expressed values are "merely oft-repeated platitudes." Interestingly enough, the middle class has become heroes to liberals after the economic collapse of 2009, as pawns to set against the 1%, and as a potential pool of voters to be recruited against conservatism. The conservative theory is that "socially constructive" people should govern while the "nonproductive" should change their lifestyles and work their way up. In practice this means conservatives favor
When it comes to regulation, conservatives feel their favored groups should be minimally regulated and, if regulations are needed, the burden should fall on the less favored groups. Liberals more or less reverse the priorities. Where we really see a class preference is in attitudes toward crime and punishment. Liberals tend to view common criminals as victims of inequality and poverty, but want severe punishments for white collar economic criminals. Conservatives favor harsh punishments for common criminals but tend to show little indignation for offenses committed by the well off. They favor busting street prostitutes and crack dealers, and banning abortion, but don't get particularly upset by the wealthy snorting coke, patronizing call girls and getting abortions for their mistresses. They reason that the vices of the wealthy don't degrade everyday life and that the wealthy can afford to pay for the consequences of their actions. $1000 a night call girls don't hang out on sidewalks harassing passers-by, and drug dealers to the upper class don't randomly spray neighborhoods with gunfire. Basically conservatives feel that the contributions of the wealthy offset whatever damage they do through personal misconduct.
More specifically, nobody wants a meritocracy based on actual accomplishment. What both camps really want is a meritocracy of values, that is, an aristocracy in which position is dictated by attitude and conduct. Class is neither race, nor wealth, but behavior, though different socioeconomic classes have distinctive behaviors that identify their members. The disdainful term "nouveau riche" applied to people with money but not the conduct to go with it shows clearly that class is not solely determined by economics. The equally disdainful term "white trash" applied to lazy and dissolute whites shows that class is not solely, or even mostly, determined by race. The problem with meritocracy is there has to be a definition of merit. And liberals and conservatives hold radically differing views on the subject.
Created 11 March 2013; Last Update 03 June, 2015
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