July 16, 2014
By Kim R. Holmes, Ph.D.
In yesterday's essay, I argued that American liberalism is becoming increasingly illiberal. By that, I mean that American liberals are becoming more inclined to use coercion to deny some citizens their freedom of expression and conscience and to treat them as unequal before the law.
Yesterday, I focused on illiberalism’s cultural aspects. Today, I describe its politics, analyzing the ways in which government and the courts are being used to shut down debate and coerce people into conformity.
So what are government’s illiberal practices?
They are prominent in the news. The current administration is stretching, even ignoring, legal boundaries. Federal agencies target their investigations on ideological opponents of the party in power, or leak sensitive information to their allies outside government. Federal and state governments refuse to enforce laws with which those in power disagree. Judges regularly break new ground to overturn referenda and laws with which they differ. Federal agencies toy with expansive new regulations, such as the Federal Communications Commission’s idea to regulate the “content” of news outlets. And some members of Congress want to amend the First Amendment to restrict freedom of speech.
Equally troubling, the federal government increasingly ignores the separation of powers established in the Constitution. The executive branch and the courts bypass Congress, as when the Obama administration announced it would not defend the Defense of Marriage Act before the Supreme Court ruled on the matter. By openly asserting a right to use executive actions to achieve policy objectives unattainable through legislation, Barack Obama is expanding executive authority beyond merely “executing” the laws or even interpreting them. He is effectively creating new laws through executive fiat.
Legislating by Executive Fiat
A president’s assertion of executive authority is not new. Chief executives have been raising constitutional questions about legislation ever since President James Monroe issued the first “signing statement” in 1821. Moreover, the Supreme Court has repeatedly ruled that “interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” Presidents have long issued executive orders in order to execute the law and to exercise the president’s prerogatives to conduct foreign policy, protect national security, and fulfill specific obligations mandated by the Constitution.
Nevertheless, it is one thing for a president to use the constitutional prerogatives of the executive to interpret how to implement a law or to exercise legitimate authority. Using that power to cherry-pick which laws to enforce is another thing altogether. Past presidents regularly used signing statements to preserve the constitutional privileges of the president (such as those in the Recommendations Clause of the Constitution) and to protect the confidentiality of national security information. But they did not routinely use executive authority as an excuse to override specific legislation or as a pretext not to enforce provisions of laws with which they disagreed as a matter of policy.
For example, George W. Bush used executive orders to amend the order of succession in his agencies and to reestablish commissions. The novelty of President Obama’s approach is, as he stated publicly, that he would use executive orders, actions, and other less formal means to bypass Congress. In 2011, he announced his plan to reduce college costs, saying, “I intend to do everything in my power right now to act . . . with or without Congress. We can’t wait for Congress to do its job. So where they won’t act, I will.” In 2012, while the contentious Dream Act was still in play in Congress, President Obama announced that the Department of Homeland Security, through memorandum, would begin implementing a provision in that bill—effectively expropriating a constitutional right of the legislative branch.
Lawyers can sort out whether such acts are strictly constitutional or not, but one thing is clear: this expansion of executive authority goes beyond any concern for protecting the constitutional privileges of the office. It is, as Obama himself explained, driven instead by the desire to achieve by executive fiat what cannot be obtained through the regular legislative process. This is dangerous. At best, it represents a cavalier attitude about the Constitution and the law. At worst, it could be an abuse of power not seen since the days of Richard Nixon.
Another worrisome trend in recent decades is the courts’ tendency to manufacture “constitutional” rights, using their rulings to overturn democratically enacted laws. Of course, this has been happening since Roe v. Wade (1973), but the gay marriage debate has opened a new front. Regardless of one’s opinion on these issues, the implications of using courts to legislate on sensitive cultural questions are far-reaching. Allowing judges to overturn laws in the name of rights that appear nowhere in the Constitution implies there is no limit to what a judge can do in the name of newly defined rights. Since this process intentionally bypasses legislatures—and often offends the consciences of millions of people who disagree—it is not only fundamentally undemocratic. It is also illiberal.
Government overreach by the courts or the executive branch—not to mention the bitterness of partisan warfare—is nothing new. Historically, both political parties are guilty. However, what is new is how uncontroversial such illiberal overreach has become when denying certain Americans their fundamental rights and freedoms. Liberals are happy to ignore constitutional limits as they overthrow democratic referenda in the name of their view of “constitutional rights.” Conservatives appear powerless to stop them. During President Nixon’s time, it was clear that using the IRS to investigate opponents was wrong. That is not so obvious today, particularly among the mainstream media who have either ignored or downplayed the IRS scandals. The widespread attitude is that government overreach is perfectly acceptable so long as it serves a preferred cause.
The danger is that this illiberal mindset is breaking down the checks and balances associated with the rule of law. It is turning the government into an instrument of coercion that restricts constitutional rights, including what people can and cannot believe or say.
How American Liberalism became Illiberal
One of American liberalism’s greatest achievements is its defense of freedom of speech. Yet freedom of speech had a spotty record in the nineteenth and early twentieth centuries. Even someone as open-minded as Supreme Court Justice Oliver Wendell Holmes, Jr., voted in Schenck v. United States in 1919 to curb free speech; he argued that speech akin to “falsely shouting fire in a theater and causing panic” should not be allowed. But the idea that speech can be limited began to change as progressives became more liberal. Feminist Margaret Sanger, union supporter Upton Sinclair, and others spawned a free speech movement during World War I, which culminated in the establishment of the American Civil Liberties Union (ACLU) in 1920.
Alongside this respect for freedom of speech was respect for freedom of conscience. This was a major concern of the Founders, as the First Amendment’s protection of the “free exercise” of religion reflects. For secular progressives, however, it is not religion that needs protecting; it is the right of protest and dissent. The idea that the individual’s conscience must be protected from government tyranny—developed in Jefferson’s generation and elaborated later by liberal philosophers such as John Stuart Mill—became a left-wing theme in early twentieth-century America.
In this way, the old-fashioned progressivism of Woodrow Wilson’s era, which was sometimes accused of racism and even militarism, developed a civil libertarian wing. It embraced tolerance, dissent, and pluralism as virtues in and of themselves. By the 1950s, these ideas were best represented in the rising civil rights movement, which was championed by some Republicans, but was also growing in the liberal wing of the Democratic Party. They were present even in the easy-going liberalism of Adlai Stevenson who, though recommending a go-slow approach to civil and women’s rights, embraced the idea that all would work out if the political system were kept open and “liberal.”
As I explained in yesterday’s essay, this started to change in the 1960s. The New Left transformed American liberalism as it opened its back door to the illiberal notions of radical egalitarianism—the assumption that no difference whatsoever should be tolerated in social status or economic condition. Everyone, regardless of race, gender, effort, or class, should be absolutely equal in all facets of life, and any differences ipso facto should be treated as the consequence of some form of discrimination or an imbalance in the distribution of wealth or social power.
Liberals today like to pretend they are the heirs of classic progressives Herbert Croly and Walter Lippmann. In reality, they owe much more to Betty Friedan, Kate Millett, Herbert Marcuse, Norman O. Brown, Tom Hayden, and Noam Chomsky, all of whom would be hard-pressed to be called liberal in the classic sense of the word. John Kerry and Barack Obama are thoroughly steeped in the worldview of the New Left, which makes their domestic and foreign policies utterly different from those of traditional liberals like Franklin Roosevelt, Harry Truman, and John F. Kennedy.
It’s not that this new liberalism is merely more “radical;” it is also grounded in ideas that are fundamentally illiberal—ideas about culture and politics that arose largely (although not exclusively) from the neo-Marxist philosophies of the New Left, much of it developed in Europe in the 1930s and 1950s.
The American liberal philosopher John Rawls, who in the 1970s tried to reconcile liberty with the welfare state, was aware of the dangers these new ideas of social justice posed to liberalism. He wanted to reconcile liberalism’s belief in liberty with the new demands of social welfare. But he also believed that in any conflict between liberty (meaning individual rights and freedom of speech and conscience) and welfare, liberty should have priority. Otherwise it did not deserve the name liberalism at all. This was the bargain—and the balance—that communitarian liberalism had made between the liberal desire to be free and the social democratic goal of involving the state in ensuring social welfare.
It was an uneasy balance, to be sure—especially after liberalism got a bad name in the 1970s. At one point, President Clinton even declared that the “era of big government is over.” Yet the size of government continued to grow. “Big government,” like the welfare state, has come back with a vengeance under President Obama. Cultural liberalism has also continued to grow; today, it largely dominates American life. Illiberal values associated with cultural liberalism—mainly, its zero-sum attitudes of intolerance—are burying what remained of communitarian liberalism’s respect for individual rights and liberty. Combined with the collapse of distrust in big government, liberals today see a green light to pursue “income equality” with the zeal of a democratic socialist. They also find few restrictions in enforcing cultural conformity, because individual conscience and free speech no longer seem to matter.
Where Liberalism Stands Today
The balance between liberty and state-enforced notions of social justice is broken. It has become perfectly acceptable to deny someone his liberty in the name of a certain idea of social justice. It is fine to curb someone’s religious freedom to force him to accept gay marriage. It is suitable to coerce a private charity to comply with laws that it believes violate religious conscience. It is okay to restrict discourse with speech codes and “trigger warnings” on campus. It is appropriate to put restrictions on election campaigns to limit who can be involved in the democratic process.
To be sure, the civil liberties “liberalism” of the ACLU lives on in selective causes; it still defends controversial speech and criticizes speech codes on campus. Yet it is a shadow of its former liberal self. It remains silent, for example, when the speech or conscience rights of Christians who oppose redefining marriage are involved.
Liberalism is dying. The question is whether Americans will be able to resuscitate authentic liberalism—not only for this generation, but for all those to come. We must reject the illiberalism that is overtaking America. We must restore the balance of power outlined in our Constitution and work to ensure that future generations can enjoy the hard-won blessings of liberty.
- Kim R. Holmes is a Distinguished Fellow at The Heritage Foundation.
Originally appeared in Public Discourse
Kim R. Holmes, Ph.D.
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