What should receive more discussion is the notion of “Liquidating” the meaning of the provisions of the Constitution.
Demonstrators arose at last week’s American Political Science Association annual meeting with signs exhorting their fellow members to “Stand Up to Torture” by bodily turning their backs on John Yoo, late of the George W. Bush administration, who presented to two sessions on wholly unrelated topics. The protests’ premise was apparently that some views so exceed the pale that those who espouse them ought not to be given a scholarly hearing even on other topics. One might have more confidence in their judgment that Yoo—of whose views on presidential authority and the legality of torture I have been sharply critical—resides beyond that pale if the pale’s scope were not permanently shifting.
But it is. And Yoo—who handled the protests with both the poise of someone who has seen this show before and a dignity that belied the demonstrators’ caricature of him—demands both a reckoning from serious thinkers and the charitable hearing due from those who were not charged with high responsibility in the fog of post-9/11 war.
The demonstrations were part of the growing practice not of disagreeing with but of delegitimizing one’s adversaries. To be sure, as Willmoore Kendall argued, a polity may be entitled to stifle certain views in order to preserve its way of life. When that should be is an immensely difficult and inherently prudential question.
For Kendall, a way of life had to be at stake. One can agree—I do—that legitimating torture in law implicates American values without accepting that it imperils the society. Indeed, the case is better that other battles, such as the astonishingly rapid demolition of gender norms that stretch unto the origins of human memory, pertain to ways of life and social survival, yet the Left would almost certainly deny that tradition is a legitimate basis for restricting speech in those areas. On the contrary, one strongly suspects the next front in the delegitimization battle is the expanding definition of bigotry and that the call will next go forth next to prevent appearances at APSA by those who are not yet with the program on gender.
Those shifting goalposts are a reason to err on the side of free speech without fetishizing it. A scholarly organization or institution is not obliged to hear all voices. As a simple matter of time management, it cannot. Choices must be made. The unserious—those like Richard Spencer and Milo Yiannapoulos—should be dispensed with. The immoral—Spencer and Yiannapoulos occupy a Venn diagram overlapping both categories—present a more difficult question.
If the left wants to draw such distinctions, it should be willing to provide a standard and stick to it. Yet there is a perverse moral relativism on the academic left according to which there are no standards on certain issues and an incessant and arbitrary ratcheting of them on others. What makes a speaker unsavory is shifting and unpredictable. The range of what is either beyond the pale or within it are each, like the universe, expanding.
Moreover, especially given the profession in which they are engaged, the academics assailing Yoo in fact sadly struggle to draw distinctions. Corey Robin, author of a much cited letter opposing Yoo’s appearances at APSA, opens with the obligatory Nazi analogy. He appears to have a quick trigger on these—see here, here, here and here, for example. Instances of even acute immorality are not comparable to and do not inexorably lead to systematic genocide, and slippery-slope analogies reside on, well, a slippery slope that can easily diminish and relativize what lies at their bottom.
Robin implies a standard according to which, if followed to its conclusion, few who have sullied themselves in statecraft, none of whom emerge with clean consciences or hands, could legitimately share company with scholars. He says Yoo’s “speech acts” as a public official helped to bring about “the torture regime of that era.” What, then, of Harold Koh, who supported the legality of the Obama administration’s widespread use of targeted drone killings? Or of Obama himself?
This may not be a problem for Robin, who appears to see no difference between Bush and Trump (again, distinctions). He told the Chronicle of Higher Education that Yoo’s contribution to “norm erosion” paved the way for Trump. (No word on what happened between the 43rd and 45th presidents.)
Part of the issue is the cruelly sterile language of Yoo’s torture memos—the references to “scalding water,” “corrosive acid” and the like—which arose not from a sadistic imagination but rather from the law he was analyzing. That is precisely the dilemma. Put otherwise, the problem with Yoo’s memos is not that that the policy was illegal but that it was so antiseptically steeped in law rather than exception.
The confusion of exceptions and rules is inherently given to extremes: That a president may have authority in an extraordinary situation, it must be preserved for him in all situations. Burke observed as much of the revolutionary French Assembly. “Their idea of their powers is always taken at the utmost stretch of legislative competency, and their examples for common cases, from the exceptions of the most urgent necessity.”
This is the stuff of ticking-bomb scenarios taken from the breathless teleplays of 24, and the flaw in the thinking is both that it nearly never happens and that if it does, there is almost no one who—granting the academic premises that a nuclear bombing is ticking in Times Square, that one is certain the interrogation subject has the necessary information, and that harsh methods would extract it—would not engage in torture. Yet this is an instance of exception, not law, and to make that extraordinary instance the normal rule is to engrave an invitation for abuse.
The question APSA faced was whether the contrary of this was an immoral belief, and not merely this, but an illegitimate one. If we are going to play the slippery-slope game, then, let’s play: What differentiates the protest against Yoo from a future protest against, say, an opponent of transgender ideology (opposition to which one paper presented to APSA associated with white supremacy, certainly an illegitimate view)? Can a distinction in kind be drawn? If it is objective morality, can we then assume that morality is fixed and predictable? If so, can the left save its own ideological commitments if the lens is reversed and proponents of natural law oppose presentations of papers such as the ample number on transgenderism as a threat to social survival?
One doubts. But be certain of this: This fusion of the personal, the political and the scholarly will not turn out well—for anyone.