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Explaining the New Illiberal Liberalism

A new form of illiberal liberalism first appeared in Europe. In 2004 the President of the EU Commission proposed a distinguished Italian academic, Rocco Buttiglione, as Justice Minister. But his nomination foundered because he had said previously that homosexual activity was wrong. Buttiglione’s assurance that he opposed discrimination against homosexuals and would enforce that principle was unavailing.

Fast forward to 2018 in the United States, Senator Cory Booker complained that the nominee for Secretary of State, Mike Pompeo, did not approve of same-sex marriage and had said that homosexual acts were morally disordered. Pompeo’s argument that he would not discriminate against homosexuals and would enforce marriage rights as required by law did not appear to assuage Booker, even though Booker did not offer any evidence that Pompeo had engaged in such discrimination at any time in his life, including his long political career.

Thus, a new norm is developing among progressives that favors disqualification from office of those who believe or at least have said publicly that homosexual marriage is a mistake or homosexual acts are wrong. This is a perversion of liberalism in the broad sense of the term.

Liberalism makes a sharp distinction between legality and morality. Indeed, modern liberalism began by making clear that the state should not regulate religious belief, which of course contributes importantly to many people’s moral judgments. The liberal state allows individuals to pursue their own idea of the good so long as it does not harm others. Indeed, this liberal view was the best argument for the deregulation of sexual activity and the extension of marriage rights to homosexuals.

But the idea of the good may include moral judgments about one’s own and others’ actions. Officials in a liberal state owe a duty of obedience to its law, but they cannot be expected to surrender their moral opinions, particularly ones rooted in their religious faith. Now it’s true that if these opinions are extreme or eccentric, they might offer reasons for exclusion from public life, because they may raise questions about their general fitness and stability. But the moral judgments at issue can hardly said to be either, although they are not mine. They reflect the shared opinions of the great monotheistic religions over the centuries. They remain the view of the great majority of these religions.  Same-sex marriage was opposed by leaders of our main political parties in the United States until a few years ago.

What is driving this form of liberal illiberalism? Here are four possibilities.

  1. A New Religion. The new liberalism is now not a political philosophy of limiting the permissible ends of government but itself a intolerant religion. Many religions in the past held that error had no rights and when their advocates controlled the state acted on that position to stamp out heresy.
  2. The Rage for Equality. Equality is now more important to the new liberalism than liberty, even liberty of conscience. It is intolerable under this view for people to express any opinion exalting one kind of moral vision of the good life over another at least when it concerns sexual relations. Of course, that equality may be applied selectively: some views about sex may well turn out to be more equal than others.
  3. Elite Conventionality. Views of certain subjects are just rules for admission to the elite club. The masses may have some benighted views on morality, but the social cohesion requires a stricter set of conventions.
  4. Fragility of the Modern Psyche. People should not be expected to tolerate opinions that they are acting immorally, because that makes them feel bad about themselves. Precisely because many people in the modern world lack a considered moral framework in which to ground their behavior, they cannot endure criticism.

In any event, all these positions are in substantial tension with the essence of classical liberalism which permits, indeed encourages, individuals to pursue and articulate an ideal of the good so long as it does not violate the law or cause direct harm to others.

Reader Discussion

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on April 18, 2018 at 07:35:18 am

5) All of the above

Postscript: "although they are not mine." - that the author found it necessary to include this caveat is evidence enough.

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Paul Binotto
on April 18, 2018 at 08:52:40 am

I don't think it's illiberal views on the rise per se, but the liberals morphed into something else and left classical/traditional liberalism far behind.

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Asko
on April 18, 2018 at 09:19:07 am

The argument of a new religion is compelling, and not merely as a metaphor.

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Wayne Abernathy
on April 18, 2018 at 10:38:20 am

I agree with this argument as an argument, BUT:

The liberal state allows individuals to pursue their own idea of the good so long as it does not harm others.

As a matter of historical fact this kind of liberal state did not exist in the US except at the national level for a time. Sunday Blue Laws; the preposterous Connecticut law against contraception that gave us, first, Griswold v Connecticut, and then later Roe v Wade; the law against sodomy first upheld by the SCt in Bowers v Hardwick and then reversed a mere 17 years later (so much for respect for precedent) by Lawrence v Texas; the laws barring voting age adults from buying cigarettes, liquor and now, it seems, guns--all of these reflect the morals hiding in the liberal legal regime.

McGinnis's statement of liberalism is essentially Mill's definition of liberty, and the second part has always completely eclipsed and negated the first part. Get enough people to believe that some act of mine works a "harm" to others--whether to discrete others or, more typically, to others in the form of "society"--and the liberal democratic state will ban it in a heartbeat. That is all that is going on now; it's merely that the acts deemed harmful have changed. And so far a great deal of these new harms are being remediated not by positive law (although that is what progressives desire) but by social pressure, just like in communities where, notwithstanding our Constitution's fine words about freedom to practice or not practice religion, you are pressured, either subtly or not so subtly, to go to church, because people are watching you and will first disapprove of your not going to church and later allow themselves to be convinced by stronger wills that you not going to church actually harms society, i.e., them.

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QET
on April 18, 2018 at 10:57:20 am

I share McGinnis’s understanding of the value of separating articulated values from law, and not seeking out inappropriate means to punish unpopular speech. Indeed, this is part of my recurring emphasis on policy disaggregation.

Thus, I also disapprove of liberal illiberalism. And I suspect each of McGinnis’s hypothesized causes may play a role, although I’d express quibbles here and there.

For example, I suspect that “Fragility of the Modern Psyche” is hardly modern. Recall how long the military excluded homosexuals from joining. Why? I humbly suggest that psyches are always fragile.

Also, I suspect that “Elite Conventionality” can influence people’s behavior—but I don’t know that its influence is different than any other kind of conventionality. And it’s odd that McGinnis would cite Elite Conventionality as a basis for disparaging opposition to homophobes, given that MOST PEOPLE FAVOR EQUALITY FOR GAYS. I look forward to McGinnis’s next post chastising elitists for countenancing sex outside of marriage, or letting women vote.

What would cause liberal illiberalism? I’d guess the same things that cause conservative illiberalism. Dodie Horton is a dyed-in-the-wool, glock-toting, blood-red Republican member of the Louisiana House of Representatives. She noticed the number of kids shot by people acting in self-defense (especially cops) when they could not distinguish between the kid’s toy gun (BB guns, air soft guns) and a real gun (that uses gun powder). Louisiana law bars kids from bringing guns to school. She proposed a bill to also bar kids from bringing look-alike toy guns to school. 65% of people supported the bill. But she felt the wrath of the NRA and her fellow Republicans for daring to regulate guns. In short, she had tread too closely to sacred ground, and no amount of rational argument can prevail against religion.

Or recall all the furor over Muslim immigrants imposing Sharia law in the US? First, much of Sharia Law is what your or I might call “law”: Honor contracts. Let juries judge guilt. Etc. Second, anything that extended beyond conventional law could not be “imposed” except through democratic processes—in which case, it would again become “law.” So why the fuss? Well-- rationality be damned; we’re being invaded!

How does this happen? Well, lots of media people make a living riling people up. Those media people need a constant supply of red meat issues. And if they don’t have them, well, they’re willing to invent them. So they’re willing to distort otherwise benign topics in order to push people’s buttons. (Gabe is always happy to cite examples of stories that push his buttons, even if the stories aren’t accurate or relevant.) Experienced politicians, knowing this, will avoid doing things that could easily get distorted, and will cave in quickly when things do get distorted. For example, Obamacare had provisions for providing certain kinds of counseling, but when opponents distorted those provisions as “death panels,” the bill’s authors just dropped them.

In short, it’s a tipping mechanism: Andy sincerely feels strongly about X. And Bill is willing to provoke Andy in order to retain his attention. And Carl is willing to support Andy. And Don is willing to support Carl. And Evan is willing to pander to all of them to win elections. Thus does a minority view become a wave. It’s not a new phenomenon; it’s just a phenomenon.

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nobody.really
on April 18, 2018 at 12:03:10 pm

I'd say all of the above characterize Senator Cory Booker, particularly the "Fragility of the Modern Psyche" one

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CJ Wolfe
on April 18, 2018 at 16:47:42 pm

I agree with both nobody.really and QET.

The harms that activists seek to minimize tend to become more trivial and abstract, inevitably giving rise to such concepts as "microagressions," and "unconscious bias," and "climate denialism." The terms are new, but the appeals to such oddities is not.

There is one concept that lurks behind Professor McGinnis's post and the above comments: that of conformity. In fact, of you replace the term "illiberal" with "demanding conformity," the meaning will change little. As I have said previously, if you look at the words and actions of a college office of "Diversity, Equity and Inclusion," you might better understand its policies if you mentally renamed it the "Office of Conformity."

Many cultural terms of art, e.g. equality, inclusion, tolerance,, safety, etc., while perhaps not explicitly euphemisms for conformity, are the euphemistic names of paths leading to the same end.

As nobody.really notes, this is not new, nor specifically undesirable; the concept of a culture inherently contains within it a certain measure of uniformity and conformity. This is one reason why many countries have official state religions, and why the British Empire's response to cultural and ethnic conflicts was an instinctive resort to partition. Citizens of a functioning and thriving state must have some measure of conformity to shared values and goals, or they will struggle, individually and collectively. But as with much else in life the problem with conformity is not so much one of quality as of quantity. Conformity is a unit of measure for totalitarians and tyrants. It is valued, not for its own sake but for its relationship to control and subjection. It is the easiest thing by which the bully may keep score.

There are a couple of curious characteristics of the modern push for conformity, with its inherent dalliances with intolerance and illiberality. Conformity demands some outward gestures of its acceptance. The modern left, in particular, has developed what may be fairly thought of as sacraments of conformity, consisting mostly of gaseous symbolism: retweeting hashtags, supporting feel-good legislation that has no benefit other than a claim to good-think, shaking an impotent social media fist at the contrived outrage of the day (note that this is a lazy habit of both the right and the left), and the tireless, unceasing, relentless search for someone to blame and for "accountability," even if people have forgotten what the blame is for. It is quite natural that the human tendency to be comforted by the conformity of others seems analogous to religion; like religion it has clergy, sacraments, demands sacrifices, has sacred texts, and defined contexts for reason. But while many religions (certainly not all) at least try and describe the good that will eventuate to the faithful, the cult of conformity seems satisfied that the power that comes from the conformity of others is an end in itself.

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z9z99
on April 18, 2018 at 18:43:32 pm

Let us name it
The Office of Lemmings" - except they do not see the cliff

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Guttenburgs Press and Brewery
on April 18, 2018 at 18:51:32 pm

"I look forward to McGinnis’s next post chastising elitists for countenancing sex outside of marriage, or letting women vote. "

Hey, I don;t mind the voting - it is the Drivers License thing that I have a problem with.

Now as for Sharia Law and not finding anything wrong with it - Are you kidding me (said Nancy Pelosi) Sharia????

How about female circumcision, how about Jews not being able to give equal testimony as a Mohammedan in court, or women not being credible witnesses about their own rape;

Now nobody the great proselytizer for gay rights is prepared to overlook, if not implicitly endorse, the Mohammedan's stance toward homosexuality; all this in a continuing effort to diminish the value / morality of his own culture and traditions.

Yep, he sure does make himself sound like a reasonable fellow UNTIL one looks at what he is actually supporting.

And by the way, nobody, MY stories ARE accurate - CERTAINLY more accurate than the sly little slanders of your own culture (Democrat talking points, of course) that you slip into your otherwise literate commentaries.

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gabe
on April 18, 2018 at 19:29:46 pm

Z:

Correct on conformity!

Let me take what may appear to be a rather different note for me:

Conformity is not necessarily bad. Indeed, the founders sought to inculcate a rather *conforming* mindset, a body of consistent, and for them, moral, beliefs and practices. See Thomas West's book, "A Theory of the American Founding" and review ALL the many policies and practices that they encouraged, endorsed, implemented with a view toward inculcating a Judeo-Christian disposition in the citizenry. It is quite extensive and belies the current folklore that a) the founders believed in strict separation of Church and State, b) the cultivation of virtue / morals was to be outsourced to private entities or subdivisions of the states, c) that the founders did not have very clear picture of what they believed to be the proper "Common Mind" for the citizens of the American Republic.

No, what we have now is a conformity that seeks to TOPPLE that which the founders deemed necessary to sustain a Republic.

so conformity may be either good or bad - depending upon its purpose.
Nobody really believes that his conformity is the high expression of a historical trend, a vanguard, if you will, of improvement in the human condition. it is neither historical (hysterical, perhaps?) nor an improvement. It is at best unsettling of a different conformity; one that served us well for over 200 years in that it allowed for dissent, indeed believed that dissent would permit a new resolution, unlike the present *vanguard* conformity which seeks only to topple the fictional cultural tyrant lurking at the heart of American culture / regime.

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gabe
on April 18, 2018 at 19:36:12 pm

Here now further proof that the new cpnformity seeks not to engage and discuss / deliberate BUT rather to STFU any dissident (or insufficiently supportive, for that matter):

From Mark Pulliam's "Misrule of Law" Blog (and from my old school);

https://misruleoflaw.com/2018/04/16/the-mask-slips-at-cuny/

Wherein Josh Blackman is pilloried by the new conformists for ...well, who the hell knows nowadays.

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gabe
on April 18, 2018 at 19:46:53 pm

How about female circumcision, how about Jews not being able to give equal testimony as a Mohammedan in court, or women not being credible witnesses about their own rape;

Now nobody the great proselytizer for gay rights is prepared to overlook, if not implicitly endorse, the Mohammedan’s stance toward homosexuality; all this in a continuing effort to diminish the value / morality of his own culture and traditions.

Gabe, it would be refreshing if you could make actual arguments. Let me help you. Which are you trying to argue:

1. Muslim immigrants have caused US jurisdictions to impose female circumcisions, or banned Jews and women from testifying in courts.

2. No, obviously the US Constitution precludes these parts of Sharia law from being imposed on people against their will. But there are other (as yet unspecified) aspects of Sharia law that might pass Constitutional muster and be imposed upon people--assuming a relevant legislature would adopt those laws. And the appropriate body to determine what laws should apply in any given jurisdiction is gabe (or nobody.really), not the relevant legislatures working through the democratic process.

3. No, obviously the US Constitution bans certain aspects of Sharia law from being imposed on people against their will. And no, the relevant body to establish the relevant Constitutional laws are their local legislative bodies, not the personal preferences of gabe or nobody.really. Still, Sharia law offends gabe, and thus gabe wants government to punish people who express views that offend him--which is precisely the illiberal behavior McGinnis is decrying.

I'm truly curious what you understand McGinnis to be arguing here. It appears you've missed the entire point.

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nobody.really
on April 19, 2018 at 00:09:56 am

Gabe,

There are certain characteristics of the specific type of conformity that is relevant to what Professor McGinnis describes as "illiberal liberalism."

1.) While the term "conformity" seems to be a general catch-all for the notion, in specific instances the term "submission" may be more exact.

2.) The methods of achieving this conformity or submission specifically exclude persuasion; in fact it is often explicitly stated that any views contrary to the demands for conformity can be suppressed as hate speech, violence, etc. Those demanding conformity resort first to coercion using whatever means are at hand--boycotts, name-calling, doxxing, demands that employment be terminated, that colleges and Universities cancel speeches, etc. Conformity is coerced almost exclusively with appeals to emotion and social shaming, and any attempts at dialog or proffers of non-conforming opinion is evidence of guilt.

3.) The conformity or submission is to a set of amorphous, shifting, contradictory and illogical concepts, such as that sex is a social construct, that segregation by race is bad except when it "builds community," that words are violence and violence is speech, that due process for an accused is an independent evil, etc.

4.) Many of the demands for conformity and submission originate in abuses of positions of trust, such as college administrators, journalists, government bureaucrats etc.

5.) The demands are not for conformity to established social norms, traditions, sound policy or shared values, rather they are for conformity to ideological fantasies, privileged delusions and indulgent narcissism.

6.) How an individual treats others in his or her day -to-day life is irrelevant; conformity requires acknowledgement of collective guilt, the validity of blood libels and supremacy of group identity over any individual faults or virtues.

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z9z99
on April 19, 2018 at 00:33:57 am

First and foremost, identifying oneself or someone else according to sexual desire/inclination/orientation, which sexually objectifies the human person, and denies their inherent Dignity as a beloved son or daughter, in direct violation of God's Commandment regarding lust and the sin of adultery, would be consistent with atheistic materialism.

Atheistic materialism, which denies the inherent Dignity of human persons, by denying that God Is The Author of Love, of Life, and of Marriage, is an affront to our founding Judeo-Christian principles, which, from The Beginning, affirm The Sanctity of the marital act, and affirm The Sanctity of human life from the moment of our creation, when we are brought into being, at our conception, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption.

There is nothing "phobic" about desiring that all persons be treated with Dignity and respect in private as well as in public. Why, then, has respect for the inherent Dignity of all our beloved become a stumbling block for the Illiberal Liberals? Perhaps what they really fear is Caritas in Veritate.

"Intimate choices may define one's beliefs on sexual morality, but they do not define personhood."
Love is ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love, which is why a man does not Love his wife in the same manner as he loves his son, or his daughter, or his father, or his mother, or a friend.

"Faith and right reason dictates how a married life should be lived; just as Faith and right reason in regards to the ‘‘nature’’ of the sexual act dictates how it should be performed within marriage."

The marital act is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife. No one who respects the inherent Dignity of the human person will simultaneously condone sexual acts, including between a man and woman united in marriage as husband and wife, that demean our inherent Dignity as human persons.

Why not tell those men and women who have developed a same-sex sexual attraction the truth? It is because we Love you, and respect your Dignity as a beloved son or daughter, that we cannot condone the engaging in or affirmation of any act, including any sexual act that demeans your inherent Dignity as a beloved son or daughter. The desire to engage in a demeaning act of any nature, does not change the nature of the act. We Love you, and because we Love you, we desire that you will always be treated with, and will always treat others with Dignity and respect in private as well as in public. We will not tolerate the engaging in or condoning of sexual behavior that does not reflect the upmost respect for the human person, simply because all human persons are Sacred in The Eyes of God and we Love you,

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Nancy
on April 19, 2018 at 08:43:22 am

No, nobody, what offends me is your inability to reconize that you also exhibit "illiberal" liberalism, albeit in a more surreptitious manner. All of the little jibes you insert into your commentaries decrying the illiberalism of those who do not support SSM, redistribution of wealth, are against an overly powerful administrative state, or in the above comments, those who do not want Sharia Law WHILE at the same time appear to dismiss the rather obvious inherent hostility of Mohammedanism toward Jews, homosexuals, women, etc.

I do not insist on consistency in others; however, some *constancy* to one's professed causes would be appreciated. It appears that the only constant in your commentaries is a derisive and corrosive, if subtle and well executed, attack upon those who do not share your own enlightened consciousness.

So what is it? will you continue to argue against homophobes (as one should) or will you continue to make exceptions for certain homophobes because they are favorites of the progressive Left and as such must be treated with deference. So it is unacceptable, in nobody's view, to withhold bakery services from gays BUT it is permissible for a Mohammedan to toss gays off the top of a building because - well - because the Mohammedans are also against the Great Satan called America.

Absotively brilliant!!!

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gabe
on April 19, 2018 at 10:31:33 am

Thank you for the previous comment; I think it illustrates the matter well. And what it illustrates is that, in fact, you have not appreciated McGinnis’s thesis. That thesis is that there is a difference between 1) advocating a viewpoint and 2) seeking government to punish those who disagree with your viewpoint.

So yes, I have views. And yes, I intent to continue promoting those views, and arguing with those who disagree. There is nothing illiberal about that: this is called Free Speech.

But no, I don’t recall seeking government sanctions against those who disagree with my views simply because they disagree. So I might find many objectionable qualities to Sharia law. But I don’t feel the need to ask government to punishing people merely for expressing their views about Sharia law. I believe people who favor Sharia law should get the benefit of Free Speech, too.

And there is nothing inconsistent with the view I’ve just espoused. As the classic liberal Evelyn Beatrice Hall (not Voltaire) famously declared “I disapprove of what you say, but I will defend to the death your right to say it.”

Indeed, you could scarcely to a better job of missing the point than this:

So it is unacceptable, in nobody’s view, to withhold bakery services from gays BUT it is permissible for a Mohammedan to toss gays off the top of a building because – well – because the Mohammedans are also against the Great Satan called America.

True, I have no particular objection to a Mohammedan tossing gays off of the top of a building if the gays consent to that behavior. Hell, maybe this is the new fad among people with swimming pools. But if it involves coercion, then this behavior would constitute assault and battery (or worse). Classical liberals object to that. No inconsistency there.

Conversely, while plenty of people DO object to bakers withholding services from gays—and under some circumstances, I might be among them—as a general proposition I have not raised such objections. To the contrary, I’ve advocated my Market Power Affirmative Defense. Maybe you missed those posts?

Absotively brilliant!!!

Oh … now you’re making me blush.

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nobody.really
on April 19, 2018 at 10:42:16 am

You have much to blush about, Nobody...ha-ha!! Just kidding.

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Paul Binotto
on April 19, 2018 at 12:58:47 pm

Absotively! Indeed it is why I may appear to be overly critical of nobody.really as he embodies point #3; however, he is skillful enough to posture as the mythical "reasonable man"; further, he appears to be the bloggers equivalent of the NPR mellifluous voice syndrome - speak ill of others, cast aspersions upon both their character and motives, relegate them to a lower moral / intellectual strata BUT speak softly and mellifluously.

Sorry, venomous propositions are not made any less lethal by virtue of flowery tones / phrases.

so many on the *right side of history* as they suppose are simply unable / unwilling to recognize their own illiberality amidst all their pleadings for tolerance and civility.

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gabe
on April 19, 2018 at 13:04:37 pm

nobody:

Let me begin with an apology to Mr McGinnis. You are indeed correct that my comments would appear to exhibit a certain non-responsiveness to his arguments. It is true. And that is because I intended my comments to be directed at you and your usual sleight-of-hand wherein in the midst of another seemingly rational dialogue, you slip in the usual slanders, insinuations and implications about the majority culture.

So, sorry Prof. McGinnis. I do appreciate your argument but the task I have set is simply to counter the effluence oozing from the pustulent core of nobody's philosophy.

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gabe
on April 20, 2018 at 11:06:46 am

Oh, there-there, gabe. Don't you worry your pretty little head over such things. Let others do the heavy thinking; they're better suited to it.... :-)

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nobody.really
on April 20, 2018 at 11:52:21 am

Nobody:

Presumably, these are the "others" that are going to do the *heavy thinking^:

http://insider.foxnews.com/2018/04/19/cuny-law-school-students-protest-professor-josh-blackmans-lecture-free-speech
(BTW: Mark Pulliam did a piece on this at MisRule of Law)

or then here is another example of the *heavy thinkers* (no commentary is intended upon the physical appearance of this *heavy*).

https://pjmedia.com/parenting/planned-parenthood-instructor-mother-arrested-trying-audit-pornographic-sex-ed-class/

No doubt she (or is it he, or some other gender construct) and Planned parenthood were obliged to instruct the "light" thinkers amongst us.

And hey BTW - the Ladies (that is real biological ladies) always did think my head was quite pretty. Ha!!!!

Take care, my incorrigible friend!

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gabe
on April 24, 2018 at 16:03:40 pm

 “Oh … now you’re making me blush.”

 “You have much to blush about, Nobody….”

You may misunderstand me. I’m hoping gabe will make me a Merlot or Cabernet. But if I piss him off sufficiently, he’ll just make me a blush. Still, a blush from the Pacific Northwest might be worth the trip....

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nobody.really
on April 24, 2018 at 18:15:00 pm

Ahh, I see, Yes, although I am sure any trip to the Pacific Northwest to meet Mr. Gabe would be well worth it and the vintage 1st rate...

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Paul Binotto
on June 23, 2018 at 07:29:01 am

[…] • John McGinnis, “Explaining the New Illiberal Liberalism“ […]

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Noteworthies (36) – A Sunday of Liberty

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.