fbpx

The Assault on Neutral Principles

One of the hallmarks of a liberal regime is adherence to neutral principles in applying the law. If laws are enforced with partiality toward some classes of people or groups, the state becomes an instrument of oppression rather than a guarantor of liberty and property. Attachment to neutrality separates liberals, classical or otherwise, from authoritarians and totalitarians. Sadly, we see evidence today that it may separate liberals from some progressives as well. It is terrible to see police misconduct that results in death. It is also dreadful to see buildings being trashed and looted and small-business owners dispossessed of a lifetime’s work. But ultimately, individual wrongdoers, whether private citizens or low-level officials like police officers, can and should be held to account. The trashing of neutral principles by government officials in high office, however, can endanger the liberal regime. Politics then becomes all about acquiring power to protect your side from the other.

As with most legal issues, there are some hard questions around the edges of what constitutes neutrality in the application of principles, but the core is clear. As my colleague, Martin Redish, a liberal but not of the classical kind, has written, “neutral principles require that whatever rationale [is selected] . . . must be applied consistently in all cases; it cannot be selectively altered in subsequent cases solely because . . . the outcome dictated by use of that principle [is seen] to be politically distasteful or offensive.” Thus, a decision in applying a principle should not depend on the identity of the parties, or even on the nature of the dispute, but rather on standards that transcend the dispute and the character of the parties.

We have seen evidence of the flouting of neutral principles in the manner politicians have spoken and acted during the confluence of the protests over Floyd’s shooting and the coronavirus crisis. Most notoriously, New York City Mayor Bill De Blasio justified banning outdoor Hasidic funerals during the pandemic while authorizing—indeed supporting—protests of police brutality against African Americans because the latter were more important. Protests and funerals are both protected by the First Amendment, funerals constituting both free speech and assembly, as well as the free exercise of religion. To argue that some people exercising free speech rights should be exempt from the coronavirus restrictions based on one’s assessment of the political importance of speech is to turn the concept of neutral principles on its head.

Not surprisingly, it is also against a century of Supreme Court case law, because the need for neutral principles is particularly important when it comes to the First Amendment. Political actors can gain support from picking and choosing what speech to encourage and what to suppress. Where there are reasons to believe that trust in those interpreting the law should be low, constraint on discretion is even more essential.

But neutral principles are important outside of the First Amendment. And here too they have been ignored. Cyrus Vance, the district attorney of Manhattan, said that he would decline to prosecute anyone arrested for “disorderly conduct or unlawful assembly” in the course of the recent protests and looting in New York. The reason again was the identity of the protests in which they were participating. There is no suggestion that Vance would not apply the full rigor of the law to those arrested while protesting abortion. It might be perfectly reasonable to decide to excuse some protesters from being prosecuted for minor offenses but only if the kind of protest at issue is not the relevant factor. To make prosecutorial decisions dependent on the political beliefs or objectives of those prosecuted is a step toward tyranny.

Liberalism does indeed choose to entrench certain rights and not others . . . But once the rights are determined, it requires that they be defended in a neutral manner.

Neutral principles have purchase outside the law as well. A liberal democracy in a complex society like our own depends on experts because most people do not have the time, inclination, or educational background to understand completely certain issues of public importance. But necessary democratic confidence in experts is, in turn, dependent on their neutrality. Experts are trustworthy precisely because they leave aside considerations that are irrelevant to their professional expertise in making their judgments. But epidemiologists who argued for the strongest possible lockdown rules to prioritize saving lives from the virus then turned around and declared that mass protests about police misconduct against blacks were acceptable because the cause was important. Some have argued that this advice was not inconsistent because protests of police brutality could themselves save lives in the long run. But, as David Bernstein has noted, epidemiologists have no remit to make such judgments. When experts squander credibility by making political judgments outside their expertise, they erode their important function in a democracy—restraining populism when it turns toward ignorance about science.

Relying on neutral principles is not to give up on reforming institutions that are systemically discriminating against classes of people. Indeed, the concern that some police departments are discriminating in law enforcement against African Americans is an appeal to neutral principles. The nub of the complaint is that one group of people is not being treated like another. The struggle for the instantiation of neutral principles can be a noble one.

Unfortunately, the legal academy’s Left has been targeting neutral principles for a long time. While it may be taking pleasure in the current official validation of its ideas, they are not only dangerous, but intellectually unsound. For instance, in perhaps the most widely cited critique of this issue, Mark Tushnet has argued that anyone can always retrospectively reinterpret precedent in the liberal order to generate a wide variety of principles. Thus, he implies that neutrality yields no substantial constraint. And certainly, Tushnet is right that precedents can be reinterpreted to yield different principles. But that does not mean that one interpretation is not more plausible than another, given deeply embedded understandings of the world. Consider a mathematical analogy: Given any sequence of numbers, we can frame a rule to obtain whatever number we want in the sequence. But for many sequences, particularly long ones (say, 2, 4, 6, 8, 10; or 1, 1, 2, 3, 5, 8, 13), we would consider that one rule has more intuitive plausibility than any other.

So it is with the law: some principles that explain previous decisions are more plausible than others. To go back to the examples discussed here, it very difficult, if not impossible, to interpret the case law on the First Amendment as making the constitutional protection for Free Speech dependent on the utility of the cause for which expression is used. No current judge on the federal judiciary, whatever his ideology, would make the distinction De Blasio made.

Another attack by the Left is to observe that free speech is itself not a neutral principle, as if that were a refutation of the need to apply the concept neutrally. The concept of free speech is indeed not neutral, because we have decided to give constitutional protection to that activity and not to others. This point raises what may initially seem like a paradox within liberalism. Liberalism does indeed choose to entrench certain rights and not others. And the choice of these rights is often defended not simply on grounds of neutrality but either on the utility or the natural value of those of rights. Moreover, figuring out what rights are to be constitutionally protected is itself a difficult enterprise and the structure of that discovery process has to be defended, as Mike Rappaport and I have done in the case of constitutional rights, on its utility.

But once the rights are determined, liberalism requires that they be defended in a neutral manner. The impartiality of rule utilitarianism is the only practical way to proceed in a world where people themselves tend to partiality. Without such neutral principles, we are left to the vagaries of politicians. But rulers and their coalitions cannot be trusted to make ad hoc decisions, like those of which the Mayor of New York or others in this crisis are so confident. The human frailty, not to mention the more than occasional malevolence, that has been on display in the last few weeks, confirms the wisdom of putting neutrality of principle at the heart of the liberal order.

Reader Discussion

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.

on June 18, 2020 at 08:00:07 am

I agree with everything in this piece. The locus classicus for this issue, in historical, ideological and wider thematic contexts generally may well be an acutely perceptive essay by Angelo Codevilla titled Our Revolution's Logic.

read full comment
Image of Michael Bond
Michael Bond
on June 18, 2020 at 09:54:27 am

"To go back to the examples discussed here, it very difficult, if not impossible, to interpret the case law on the First Amendment as making the constitutional protection for Free Speech dependent on the utility of the cause for which expression is used. No current judge on the federal judiciary, whatever his ideology, would make the distinction De Blasio made."

I am not quite as sanguine as is McGinnis regarding the Federal Judiciary's ability or willingness to make such "distinctions".
Look only to Masterpiece Cake and more recently Bostock v Clayton in which the Federal Judiciary has now opened the floodgates to all manner of First amendment restrictions based upon a delusional, if purposive AND non-neutral textual analysis of Statutory law.

Yet McGinnis does highlight the underlying problem. It is NOT the absence of neutral ;principles; rather, it is the non-neutral post facto rationales / justifications for the violation of those neutral principles that is at issue today. First, the lawyers concoct some fanciful defense for a violation; later, the academics pedagogically profess additional rationales; finally, the rabble, that is to say the media, entertainment industry and the "victims" themselves invent even further variations upon the theme.
We are then left with nothing more than a hollow chested neutral principle no longer recognized as valid by the hollow chested children of our times.

read full comment
Image of gabe
gabe
on June 18, 2020 at 11:28:26 am

“We are then left with nothing more than a hollow chested neutral principle no longer recognized as valid by the hollow chested children of our times.”

One cannot be affirming the inherent Dignity of every son or daughter of a human person, who is first and foremost, a beloved child of God, if one than feels free to discriminate against certain beloved sons and daughters, and deny their inherent Dignity as a beloved son or daughter through the condoning of demeaning acts of any nature such as the destruction of the life of a beloved son or daughter residing in their mother’s womb, euthanasia, racism, violence in the street, or the condoning of sexual acts, that regardless of the actors, or actor’s desires, like all acts that demean our inherent Dignity as human persons, are physically, psychologically, emotionally and spiritually destructive, because they are devoid of authentic Life-affirming and Life-sustaining Love.

Love is not a “neutral principle”, it is the very essence of that which affirms and sustains human life.

Love is not possessive, nor is it coercive, nor does it serve to manipulate for the sake of self-gratification; Love serves only for the Good of oneself and one’s beloved.

Love is ordered to the inherent personal and relational Dignity of the persons existing in a relationship of Love, which is why a man is not Called to Love his wife, in the same manner as he Loves his daughter, or his son, or his mother, or his father, or his friend.

Just as every element of Truth will serve to complement and thus enhance the fullness of Truth, so, too, will every element of Love serve to complement and enhance the fullness of Truth.

Love and Truth cannot serve in opposition to one another.

God, The Most Holy And Undivided Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, but we get to choose our own destiny.

“When God Is denied, human Dignity disappears.”- Pope Benedict XVI

And when human Dignity disappears, anything can become permissible due to a failure to Love.

read full comment
Image of Nancy
Nancy
on June 18, 2020 at 13:00:43 pm

When God is denied, human Dignity disappears.” - Pope Benedict XVI

And thus we can know through both Faith and reason, that the end goal of The Atheistic Materialist Overpopulation Alarmist Globalists is the objectification of the human person and the denial of the inherent Dignity of the essence of being in essence a beloved son or daughter, brother or sister, husband or wife, father or mother, due to unjust discrimination and thus the condoning of demeaning acts of any nature such as the destruction of the life of a beloved son or daughter residing in their mother’s womb, euthanasia, racism, violence in the street, or the condoning of pornographic acts, that regardless of the actors, or actor’s desires, like all acts that demean our inherent Dignity as human persons, are physically, psychologically, emotionally and spiritually destructive, because they are devoid of authentic Life-affirming and Life-sustaining Love, are all cut from the same cloth, that which is anti Christ and thus anti Love.

Something to think about in the days to come:

https://mirrorofjustice.blogs.com/mirrorofjustice/2016/07/how-the-constitution-in-fact-gets-rewritten-thank-god.html

https://strangenotions.com/nothings-the-matter-with-atheistic-materialism/

Truth In Love; Love In Truth, Through The Unity Of The Holy Ghost. Amen

God Is Perfect Love.

read full comment
Image of Nancy
Nancy
on June 18, 2020 at 13:06:11 pm

I largely share McGinnis’s views on the importance of principled application of the law—if not his politics. The Trump Administration should provide enough examples of unprincipled application of the law to disabuse anyone from thinking that this is a peculiar predilection of the Left. The attack on “David French-ism” at First Things was basically an attack on applying neutral principles when those principles fail to produce the outcomes favored by religious fundamentalists. Likewise, the editor of First Things argued that Free Exercise protections should apply only to religions that are “true,” according to his own judgment; this is a naked invitation for biased judicial decisions.

That said, I find myself in regular disputes with progressive activists these days. I tend toward an ACLU-style support of equal protection of the law for all—even Nazis. Arguments that gay people are wholesome, and thus deserving of equal protection of the law, may be great marketing—but lousy law, because even jerks are entitled to get married or be protected from employment discrimination based on suspect categories. Likewise, arguments about the virtues of George Floyd in particular, or black people in general, strike me as similarly irrelevant—because even white jerks are entitled to civil rights and due process. All this emphasis on the sympathetic-ness of victims suggests that we need legal remedies only for sympathetic victims, rather than equal protection for all.

Having disparaged the views expressed on First Things, I find more compelling one of their essays suggesting that the views of Black Lives Matter are taking on the quality of a religion: There’s identification of original sin, confession of sin, offers of atonement, etc. These may be powerful tools for a social movement, but they have drawbacks. First, there’s no real prospect for forgiveness and reconciliation. Second, activists inevitably treat those who do not share the faith as apostates. I find myself defending people’s right to refrain from embracing the new religion.

read full comment
Image of nobody.really
nobody.really
on June 18, 2020 at 13:52:15 pm

nobody:

WOW! You have apparently survived the Chicomm Flu. good for you!
Now as to BLM taking on the traits of a religion.
Indeed, this is true as comes news today from my afflicted burb that BLM supporters are now passing around the collection plate requiring all white folks to donate $10 to a single (singular, one would hope) Black man. I guess they have decided to transform the collection plate into a dual alms'giving and penance plate.

read full comment
Image of gabe
gabe
on June 18, 2020 at 13:07:19 pm

Martin Redish . . . has written, “neutral principles require that whatever rationale [is selected] . . . must be applied consistently in all cases . . . .”

“Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Justice Antonin Scalia, Cruzan v. Missouri Dept. of Health (1990).

read full comment
Image of nobody.really
nobody.really
on June 18, 2020 at 13:21:39 pm

[I]t very difficult, if not impossible, to interpret the case law on the First Amendment as making the constitutional protection for Free Speech dependent on the utility of the cause for which expression is used.

Have you checked the obscenity cases? See Roth v. United States. (1957): “All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties [of the First Amendment], unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” Accord Paris Adult Theatre v. Slaton (1973).

Or Miller v. California (1973): “The basic guidelines for the trier of fact must be . . . whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

read full comment
Image of nobody.really
nobody.really
on June 18, 2020 at 16:05:00 pm

NOBODY.R, throughout you are simply begging the question in favor of your libertarian extremism, which is itself a discriminating choice that you merely posit as being normative. Hence your argument is nothing more than a complaint; conceived as argument it is self-defeating precisely because it is a (your undefended) discriminating choice.

And the ACLU has not been even-handed in the manner suggested. The Skokie case you allude to was an aberration, not the norm. It's often high-lighted as though it is an ACLU norm; it is not and never has been.

read full comment
Image of Michael Bond
Michael Bond
on June 18, 2020 at 21:21:49 pm

This essay makes needlessly complex, academic and abstruse a simple, common sense matter of equal application of the law, better understood as equal protection of the law. So I will say nothing more about its core point, which is a mere statement of the obvious, certainly to any lawyer, if not to all intelligent people.

But I do need to comment on the essay's resort to a tactic which is all too common on this blog site, gratuitous, ill-informed attacks on populism which treat it as an inherent political evil engage in by ignorant people. Such common comments here usually reflect misguided, ill-informed contempt for President Trump and his supporters.

In discussing briefly the matter of "expertise" (which, BTW, is a subject far more interesting than the banal core of McGinnis' essay) McGinnis says, "When experts squander credibility by making political judgments outside their expertise, they erode their important function in a democracy—restraining populism when it turns toward ignorance about science."

The statement is incorrect on several fronts. First, I care little what experts say outside their expertise, But I know that it is very important that experts not make political judgements INSIDE their expertise. Yet, ideology is a very common source of expert opinion by experts speaking WITHIN their expertise. Dr. Fauci typifies that ubiquitous tendency. There is a strong, false assumption in our society, that scientists are not ideological. The history of science shows this to be untrue; it shows that a handmaiden of science is scientism, which is ideologically-driven, false science. Scientism is faux or fake science masquerading as scientific fact and valid scientific theory when it is neither. It is politics. And is is seeks to shut down inquiry and debate, both of which are indispensable to true science.

Public health, psychology, neurology as a behavioral science, all of the environmental sciences, computer modelling, risk assessment, epidemiology and all of the so-called "social sciences" are particularly prone to if not rife with scientism nowadays. Climate change alarmists have all become exponents of scientism. The eugenics movement in the U.S. was based on scientism and was promoted by and became widespread solely because of ideologically-driven scientists. The abortion industry is also rife with scientism.

Secondly, McGinnis say the function of expertise is to counter the ignorance of populism. This, too, is wrong. The function of expertise in every aspect of society (not just science) in which expertise is called into service, ranging from governance and national defense, to education, to science, to business, to medicine and public health, to agriculture and manufacturing, to transportation, to banking and finance, to environmental protection and conservation, is to facilitate better results, better decision-making, better judgment and better outcomes than would occur without the benefit of expertise.

It is simply ridiculous to declare, as McGinnis does, that expertise is intended in a "democracy" (actually, we have a "democratic republic," not a "democracy") as a curb on populism.

Nor is it correct for McGinnis to suggest that populism means a turn toward ignorance about science. Where is the evidence to support such a politically-bigoted assertion, the notion that expertise is a counterweight to a popular, democratic political movement?

McGinnis talking about populism sounds eerily like H,L, Mencken reporting on the Scopes Trial. Mencken referred to Appalachian Whites, who believe as a matter of faith that God created the earth, as "Gaping Primates."

Maybe Hillary's "deplorables" is another apt comparison to McGinnis' comment about populism.

read full comment
Image of paladin
paladin
Trackbacks
on June 23, 2020 at 15:44:47 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

on June 23, 2020 at 15:47:41 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

on June 23, 2020 at 16:16:29 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

on June 23, 2020 at 16:22:37 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

on June 23, 2020 at 16:28:49 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

on June 23, 2020 at 21:43:33 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

on June 30, 2020 at 06:29:34 am

[…] in a separate piece, ably points out what it means to enforce laws apolitically in a liberal […]

on August 09, 2020 at 16:05:21 pm

[…] objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the […]

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.