« The Weeds

A "titan" of social conservatism on the courts and his battles ahead

2020-03-07

Conservative thinker Robert George joins Jane to talk about abortion, marriage, the Supreme Court, and wielding the power of the federal government. 

Guest:

Robert George, (@McCormickProf) Professor of Jurisprudence, Princeton University

Host:

Jane Coaston (@cjane87), Senior politics reporter, Vox

More to explore:

Subscribe to Impeachment, Explained on Apple Podcasts, Spotify, Stitcher, Overcast, Pocket Casts, or your favorite podcast app to get stay updated on this story every week.

About Vox

Vox is a news network that helps you cut through the noise and understand what's really driving the events in the headlines.

Follow Us: Vox.com

Facebook group: The Weeds

Learn more about your ad choices. Visit podcastchoices.com/adchoices

This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
Support for this episode comes from Clickup. We lose an average of three hours every day, switching between all our work apps, but you can get them back with Clickup a flexible platform that brings all your essential tools into one place where you can prioritize tasks. Collaborate on docs chat with your team and track goals, so companies like uber and web flow use clickup is their mission control Center, replacing every other app that we're using before click up even guarantees to help you save one day a week and get more done. It's completely customizable! It's free forever! So try click up today and click up com. The weeds support for this pod asked comes from mainline health home to Lincoln heart institute. We're heart care is delivered many human resulting in bigger break through an tinier scars delivery options when you run out of them thanks to the Momen. Trust, a team of cardiologists who believe in the healing power of science and empathy, treating you as a patient and a person. The promise to hear more than your heart, because what is hard care, if it's not human
learn more mainline health dot, Org, slash heart. Hello and welcome to the weeds. I'm Jane Costin and I've been really interested in an intra conservative battle. That's taking place right now. No, it's not about abortion or tax policy or liberalism is about pornography and the role of pornography players in our society and the danger in their view of pornography on youth, on everyone really, and a lot of conservatives are thinking very deeply about ways for the federal government, specifically the Department of Justice to combat pornography, not just the porn industry.
But the use of pornography and the availability of pornography more widely. One of those people is Robert George he's a titan and the world of social conservatism, he's the Mccormick professor of jurisprudence and direct the James Madison Program and american ideals and institutions at Princeton University and he's been called the most influential conservative christian thinker by David Kirkpatrick of the New York Times. He's. Also, recently written a letter to attorney general, William Barr, asking about how the federal government attempts to go after obscenity and pornography, we had a really interesting conversation and I think you might be intrigued by his answer to a couple of questions about what social conservatives might do, with a loss at the Supreme Court or at the judicial level. So let us know your thoughts at the weeds, Facebook page and without further ado. Here is Robert P. George Robert P, George welcome to the podcast it's my pleasure. Jane thanks for having me
You ve been involved in thinking about conservatism and specifically social conservatism. For a long time. There is a near times article from two thousand and nine that I believe that something to the impact that, like you, is there actually were kind of, like a catholic Super state, they'd be meeting at your house up in my mix, jewish christian House. Yes, let's turn up which you know that that that tends to That happens. I think I'd like to start with something that I have written on previously and you ve been talking a lot about, which is the current intra conservative debate over print and obscenity, and on January thirteen th you sent a letter to attorney general, William Barr, asking for clarification regarding Department of Justice policy on the enforcement of existing obscenity laws, which is an interesting issue because, as viewed likely, no attorney general barbarous, very involved in obscenity prosecutions during his first round of involvement with the Department of Justice under the age of.
Bush administration and the debate over how obscenity is prosecuted by the Department of Justice has gone back and forth over the last twenty twenty five years, but I think it's interesting and will post the letter that you sent in show notes, along with some other materials, because you make the argument not so much from a moral standpoint and there have been a lot of writings on pornography as a moral ill, but you write about it in this letter as a harm to children, a physical and so harm. Can you tell me a little bit why you decided to focus on that element specifically for this letter and specifically with regard to how obscenity laws are enforced? Yes, certainly Jane. I do believe that obscenity creates
Great moral harms- and I think the moral argument against obscenity needs to be made. I think we need to recognise that there are such things as moral harms and take them seriously, but especially pornography as it has developed in the second half of the twentieth century and especially since electronic means of transmission become available, creates not only moral harms, concerns for public morality, but also public health and public safety, as we know, a great deal more than we did when you Hefner launched his mainstreaming of soft Gore pornography, so called software pornography. In the mid nineteen fifties about the psychology of pornography, especially about porn addiction. People have always known that pornography in the main targets women treats women as objects is instruments such degrades women are. This has become a worse and worse
the addictive qualities of it. The damage the harm, that's done from porn addiction has become more and more evident. It's also become clearer and clear overtime that the porn industry benefits from the exploitation of women who are used in the production of pornography and even the trafficking of women into the trade into the business. Many times women from overseas from South EAST Asia from South Central Asia. Often women who do not speak English, very many times women who have no way out nowhere to go no friends, so they can appeal to who are really trapped in the industry in addition to the moral harms. What I perceive now- and I am far from alone- this is across the spectrum- put people on the left as well, be
The right understand us that there are significant public health and public safety issues that are created by obscenity, especially contemporary Britain, obscenity, modern obscenity, an obscenity, that's transmissible electronically, as a final point on that, as, of course, because of the electronic transmission any kid nine year old kid. Thirteen year old kid boy or girl can easily access even the most hard core of seem imagery on his or her cell phone. That's a really serious issue when it's a tough one for parents and took stop when for society to deal with the general test. For what obscenity is the Miller test, as detailed in the Supreme Court case, Miller versus California is notably kind of vague, because this has been an issue. What even is obscenity that people have been debating about for decades, and so the current Miller tests is whether the average person applying contemporary community standards for find it
Work taken as a whole would appeal to the period interest and in a peace. I wrote about this. This is it's been noted that this is vague and and one in one court case in two thousand, eight, an attorney attempted to or planned entrant evidence. The Google trends for is the city of Pensacola Florida to show that, based on what people are googling his clients, pornographic material did not meet that standard. So do you think that we should update the Miller test, as is something that should be taken to the court's, because I think, if the Department of Justice response to our questions, as how does Department of Justice defines obscenity with we go by the Miller test, it seems that we have just kind of wandered into a circle here, an additional element of the military. To that the Dree or depictions must lack any serious, artistic or scientific or other value. The test is somewhat vague, and I dare say if we adopt the obscenity
solutions in the way that emerging general bar to do that would generate cases. That would be a contested. The would be challenges to the constitutionality of certain of the prosecutions and it would give the courts and eventually spring courtiers. Its itself an opportunity to revisit the Miller test and see if perhaps they can get a bit more precision into the test, but I think that there are now so many clear cases, cases that are not near the border. The trouble with the Miller test as there's this grey area, but even under Miller. There are so many cases that are not near the border that you could keep the Justice Department prosecutors around the country busy for the next thirty years prosecuting thee. The clear cases I am reluctant really to even Some of what is out there now and available even to children who can access it so easily. But if you'll forgive me for doing so
Talk about one particular image. That's got a good deal of publicity on porn hub. It's an image of a pparently teenage girl sits in older model, but she appears to be a teenager, strapped by her ankle, enhancing mouth to a ball, to the ground and she's being penetrated by a machine while she's being burnt with hot wax that's not near the boundary, that's not in the grey area, there's nothing in the military that would leave. Any ambiguity there. It seems to me at least I certainly be happy for a prosecutor to take that court. It sort of case to the jury and defy the defence to demonstrate any serious artistic or scientific value. That sort of thing, so I think there are clear cases, so we don't have to wait for further guidance from Supreme Court of the United States for General BAR to do what I think the Justice Department should do, which is start to actually enforce current.
I will make clear Jane, I'm not asking for any changes to the law. Here we might want to down the line we might, it might benefit country to have some more precision if the Supreme Court's court review but right now my letter to general bar simply asks him to enforce existing law. That's is jobs, job of any attorney general enforce the exist. In law. The reasons for that law, the reasons now that have become really quite urgent because of exploitation because of addiction because of harm to children, we should reconstitute what we have add when bar was attorney. General many ago, and that is the task force, the working group within the Justice Department that is focused on obscenity, it's interesting you use the idea- and you mention this in a letter about the idea of pornography being potentially biologically addictive, and so Emanuel Gobi wrote a piece for Journal of american greatness. That was a science based case for ending the porn epidemic, but one of the things he notes is he smokes cigarettes and he's aware,
Cigarettes are bad and addictive, but he still does that. Obviously we have limited access to cigarettes, but we did not ban cigarettes. We curtailed there, you and their availability, but we do not ban them in an ideal world in which you are the grand poobah of everything's, to we're in this kind of in the round between limiting and curtailing its use kind of, as we did after the end of prohibition where alcohol is availability is still available, but was limited or cigarettes, or are you looking, or eventually an all out ban on pornography. Well, what we're talking about obscenity ran, so it's that portion of pornography that qualifies under the Miller test or whatever amended test the court would you as obscene and and I think it is important that we not become fanatics. The next thing we know are banning the year, the song of song, the Bible, because of their sexual imagery there.
I am not advocating prudery or balloon hobbism. I wanna protect children. I want tat man. I want to protect us, I want to protect women who are exploited by the porn now. How do we do that? Well, anytime we're talking about government regulation, whether itself public morals or public health public safety, whether the reasons have to do with public health, safety or morals, their different strategies and prudence, as required prudential judgments are required as to what this strategy should be, should they be non coercive strategy? Should they be nudging? Should we be creating private rights of action? That's actually how we struck the decisive blow against the tobacco industry by permitting private parties who had been victimized because of smoking. The tobacco industry to sue the tobacco industry. That's another way of doing it. Instead of criminal law prohibitions, private rights of action, I think probably room if we reform the pornography laws. If we go back to the question of how exactly to regulate absent,
which I have not done yet in anything, I've written to the attorney general or any one else, so farm just sing, enforce the existing laws. But if we move to what I think would be the next step and think about what else we can do what reforms of laws? What changes can we introduce? What new ideas can we introduce to combat were not really were seen for I refer. In any event, I think private rights of action that the people were addicted to porn, analogous to the private rights of action from people who are addicted, to cigarettes could very well work and would be appropriate same for women who have been exploited now. Some law under which I think they could get some protection. There even ass. Things are, but we might want to improve those those laws as well, so I'm not giving you a master strategy here once for all Jane, I think they're different dimensions of it. I think different strategies can be employed and they're not mutually exclusive either. It could be that we a ban on the hardest course stuff. But when it comes to stuff, that's near
or the boundary line? Maybe we want to discourage? Maybe we want to do that private rights of action? Maybe we want to stigmatize and it can't be just government, I think the institutions of civil societies, families themselves, schools, churches, what Burke called the little platoons, what to vile mentioned as being so critical
the success of american democracy, they ve gotta be mobilized as well to protect people against the harm that is now being done by the obscenity plague. The reason I'm fastened by this issue is because it's not just obviously about pornography or obscenity, but it is about what the goal of government and what the goal of conservatism more widely should be, and I think that that goes back to something you ve thought a lot about, which is the idea of natural law. What is the law supposed to do? And that's been a debate among catholic theologians for centuries, and so famously Saint Thomas Aquinas and Saint Augustine had two different ideas on what the point of government was to do. So Saint Augustine basically felt that the purpose of government is this, keep sinful things in line, whereas Thomas Aquinas believe that we should be working towards the idea of the common good and the idea of natural law. The idea you use a pen to write the job
of a pen is to write what is the job of a person and that's kind of the debate about what natural law is, and I think that that's where a lot of your writing has stemmed from. But it is interesting to me that we are having this conversation about conservatism, about conservatives deciding what should government be doing, and perhaps government beginning more involved in encouraging the common good as they see it, and not just saying essentially, as long as you don't break these specific laws do whatever you want, which is a very different approach, then I think libertarian leaning conservatives would take, which is why there's been this break among conservatives? How do you see that split taking place between the idea of government s kind of the bulwark against murderers and see
or government, as we can make people better well we're having within the conservative movement today, and certainly in conservative intellectual circles, but even beyond the intellectual circles, just more broadly out among people what might be called a lively discussion, it's very lively, lively. Sometimes it gets pretty hot discussion about whether we should lean and perhaps very I will leaner, more libertarian direction. Or whether it's not a sell out to collectivism or socialism? carve out a little larger role for for government in advancing the and good that is beyond simply preventing people from doing create immediate harm to other people, I'm, not a libertarian. Myself have a lot of respect for libertarians, I'm glad there are libertarians in the conservative movement. I think that the considerations they bring to bear once that other conservatives like myself need to take very seriously
and learn from, but I dont end up in the conservative camp myself. Now that doesn't mean I'm less than doesn't mean I'm collectivist my view. Was the one that is historically associated with what might be called the natural law tradition, the view that you identified with Saint Thomas Aquinas, Aquinas himself, of course, was in the chilean follower of Aristotle ended, as I am myself. So you might refer to my view was arrested Lillian viewing and that's the view that law and government have a role in encouraging good things and promoting the common good, more broadly than simply protecting individual rights, narrowly conceived, bought and here's the big bought. That role has to be subsidiary secondary law
method. The ideal of limited government is one that libertarians and social conservatives libertarians and traditional conservatives share libertarians one to be even more limited? I suppose you could say than other kinds of conservatives, but does other kinds of conservative still wanted to be it had. So, even when it comes to moral questions, we can't have it be the case relying primarily on government to teach more values are on government to keep people in line when it comes to what justice and the common good we need. Direct I primarily on the institutions of civil society again those little platoon again. Those institutions that Tocqueville saw is so essential to the flourishing of american democracy, the family, religious institutions to institutions, churches synagogues mosques, temples it doesn't matter. The particular faith, for these purposes are very important questions of religion about who's right who's, whose wrong and whether Jesus is the Son of God in these where theological questions. But when it comes to
The role of it's gonna be played in civil society by religious institutions. All of those religious institutions can play that important Braun historic we have done and have done in many different cultures, and it's not just religious institutions. It's all a voluntary associations people getting together to help too observe the values that people need to hold and understand and believe in the virtues that people need to have in order to lead successful lives and be goods. And live in harmony with others. Cooperate with others, make things better Everyone, that's what the common good is, making things better not just with, individual this tribe or clan, a group, but for everyone, so yeah I think that rule the government does rule beyond simply the narrow protection of liberty. Although I think that's critically important, it's got a robe on that, but it must not replace or displace or usurp the authority of families, churches and other religious institutions, voluntary associations
a fourth. So let's call that subsidiary and and that's something I strongly believe in the principle of subsidiary. It's interesting. You say that because I just did a pug cast for the S reply and show, which is a natural part of the facts: media outcasts, network with TIM Carney. Who wrote his book alienated America, essentially on the breakdown of those institutions, on the breakdown of both secular and religious organisations, which he believes in some way help to lead to Donald Trump primary victory. Victory specifically essential.
People looking for that kind of communal experience who were able to find it in churches, but were able to find it in backing this particular candidate. It's interesting to me that you mentioned the value of subsidiary, but there does seem to be a sense from some conservatives quote from a piece from terrorist shilling who wrote in first things the lock and service teacher and a guide to encourage positive, behaviors undiscouraged negative ones. Do you think that, for some conservatives there's no do that, because those institutions have fallen away because the influence of those institutions has fallen away, which I think is also important. I think it's not so much about fewer people going to Roma
church resisted tradition. I grew up in its at the roman catholic Church for many reasons. Both good and bad has lost moral authority over the majority of Americans, obviously because the sex abuse scandal that I think for many people die displayed hypocrisy writ large. Do you think that there is a sense that, because of the breakdown of those institutions, more conservatives are like? While we still have the government? Maybe politics isn't downstream of culture made? We have to start with politics and then get to culture I think the idea that that politics is downstream from culture is a half truth and therefore an untruth. I do think that politics is part of culture and that, just as culture shapes politics, politics shit shapes culture. So I think we have to care about politics The right thing in politics to a large degree in order to reshape culture now, one of the things that needs to happen is we need to rebuild the institutions of civil Society Do we need to rebuild the family? Not not just in some,
communities been an all communities on all sectors of society? We need just and other religious institutions to get their act together to be better to eliminate the hypocrisy to be what they claim to be so They can serve the very important function of transmitting values. Trends. Bidding virtues, assisting families in doing those things they are uniquely in a position to do when their healthy. We need to revisit voluntary associations. Look, for example, the boy scouts which is as we're doing this interview, declaring bankruptcy because of problems that are similar to the sex abuse problems and in the catholic Church, the boy scouts have done a world of good for four, boys for young man for generations. They ve done great thing They ve been a very important source of the transmission of values and virtues, and yet they allowed themselves to fall into decay. They allowed bad things to happen there.
A heavy price for it. Now, and so are we because we depend on institutions like the boy scouts, those kinds of voluntary associations to play this important role now Jane. If those institutions aren't rebuilt, it's not if nothing will step in to replace them, something will and that will be government, just as when public health and public safety breakdown, somebody's gonna step in it's gonna, be the government when families breakdown in communities and and basically, you have communities in which there's family dissolution. It's not as if no one's going to come in to take care of children or to try to do the best they can. The government will come in there be no choice for the government to come and will the government do it? Well, nope the governmental badly, certainly not as well as institutions of civil society to be ended with family would do it if they were if they were healthy, but that is what's going to and so I would warn conservatives don't imagine that
If we simply take us as a given, not something, we can do nothing about the breakdown of institutions of civil society, and then looked at the government to save us. If that's what we say We deluding ourselves because that's not gonna work government can only do it service for us its job for us when its job is subsidiary, when the primary responsibility for health, education and welfare for the transmission the values and virtues that are essential to successful lives and good citizenship can only do its job and the primary role is being played in those things by institutions of civil society. Where do you think within the conservative movement thinking about the law in this way came about because I think for some people who are outside of the conservative movement or observers, this is a rapid shift from the tea party era,
the tea party era that there were a host of articles are arguing that this is the libertarian moment in you heard, from from a representative, run Paul and a host of libertarians, libertarian leading conservatives who essentially argued that, like no one should be stepping in that the individual is sacrosanct. Individual actions and individual freedoms should not be restrained in any way, which is in part, why every libertarian party conference get some very strange, but also this is a concept that I think for many people. That was the conservatism that they remember this isn T Obama era of we need to limit the size and scope of government and the government getting involved in terminate what the common good is or trying to direct Americans towards a concept of the common good is bad and overstep, and it's interesting now to think that with the breakdown of institutions that government could again
do a bad job, but come into this do so. Can you tell me a little bit about what sneak intellectual history of this idea of kind of restoring the use of government, in some ways out. You mention as subsidiary by restoring the use of government to establish, can have a common good because to me that harking back to the progressive era which had ending child labour, good eugenics, bad Woodrow, Wilson, very bad Yom into their eternal shame. The progressives embraced eugenics ology enter, believes that idea of we can improve the man Wing ITALY, as can the idea of self improvement, is ignored. We kind of need to push you along, and some of that is. We need the your food and drugs act, and some of that is certain people should be allowed to have children exactly modern,
My understanding of the history of the thing, the unity of the conservative movement, the late nineteenth Thirty's through, though, Second World WAR and onward until the collapse of communism in Europe was under by common enemies right so libertarians burkean social conservatives, all the different elements of the conservative, Conserve room were bound together by anti communism by fear of further been encroachment in the world and by opposition to Progressive ISM, which I think Conservatives were right about this of all descriptions right about this, which tended to displace the institutions of civil society. Even common dear them, take them over to invade the territory of institutions and civil society well intentioned, but big government bureaucracies.
Agencies and, however, well intended often, the law of unintended consequences, Sir played itself out so concerned. Those were united about that with their own triumph in the Reagan. Seventy and then the collapse of communism, the principle of unity- beard ran the you know when you, when you don't have a common enemy, it's very challenging you it's it's been interesting because I feel I spend the left, I'm talking to conservatives Vol Stripes, and it is fascinating to me how much not just how much they disagree with progressives or liberals, but how much they disagree with each other and that sense of what brought you together no longer really exists. Perhaps in the early two thousands you can make the claim that you conservatives were united against the concept of radical Islam. But now that seems to be less of a sticking point. Four people were
ISIS is gone. Al Qaeda seems to have been gotten under control. So again the the enemy has has disappeared. Now I want to say, Jane, that the only way that different omen The conservative movement can be bound together by having a common enemy, because I think there are some shared values, often the emphases or different off are often the prudential and practical judgments are different, but take Limerick and social conservatives. They agree on the importance of freedom. They agree that freedom is a value they believe in individual rights? They believe in freedom of speech, freedom of religion, freedom of assembly, they believe in the principle of due process of law? But they have disagreements about whether liver is an intrinsic good or merely an instrumental in conditional good. They agree. It's very important good, but they disagree. About some theory there, and they can also
agree in practice in some areas is the freedom to smoke cigarettes or to use obscenity. True, a fundamental freedom? Is it something that the gun that should not only not try to get involved with his horse. Banning things are concerned, but should the government be new we'll about it. A lot of libertarians think that the government should be neutral about cigarette smoking or neutral about obscenity. Even those conservatives who are not libertarians. Who would stop short of government prohibition of those things would probably say, nevertheless, that governments shouldn't be neutral about them. That government, at least in its non coercive roles, ought to discourage the use of cigarette smoking cigarettes because of health reasons or the use of pornography because of health and moral reasons. So I dont think that that what we have here is an alliance of people who have nothing in common at all, except for a common enemy. But there are differences
and here's one of the ways to think about the difference between traditional conservatives, including, conservatives and libertarians, very often for libertarians. The basic conception is that there are two key players: the state, and the individual and then the whole game is how much power should the state have and how much power should the individual have and the goal is to for libertarian- is to decrease the power of the state as much as possible. Get it down, if possible, to being just the night watchman state that protects people against coercion and deception and give as much power as possible to the individual traditional conservatives, including social conservatives. There is something missing from that picture. Yes, there's the state, that's important! Yes, there's the individual here she is important, but in the middle of the institutions of civil society, the families, churches and other religious organisations and the voluntary associations
they have an important role to play to and there should be a fool ready in their hands, not the authority of law that belongs to the state, but nevertheless important social, cultural, moral authority, so that the visual isn't just naked as against the state, those institutions and civil society function as and here the term, that in the literature is mediating institutions. They are intermediate, between the individual and the all powerful state that the our own sense of having monopoly on violence the state so far. He is a traditional conservative as a social conservative. I think We need to rebuild and re empower those institutions of civil society. They can do most of the work, even when it comes to things like public health and public morals, most of the work and discouraging kids from getting addicted to cigarette. And discouraging kids from using get accessing obscenity the states role,
it has a role and I think it can in some of these areas needs to be subsidiary and within that domain it's gone decide when to nudge when to prohibit those are prudential judgments, if you're a gig worker or self employed, there's some news about PPP loans. You might want to consider millions of self employed workers may qualify for up to fifty thousand dollars in one hundred percent forgivable loan, you might be one of those millions as the leader
PPP loans wobbly can help you find out, they have helped over three hundred thousand small businesses across Amerika get a ppp loan funds are limited supply now that won't play dot com, slash, vocs and see if you qualify for a ppp loan, that's W o m p. L, why dot com slash veo Ex wildly is not a lender terms and programme rules apply if the last year's hottest anything it's that we don't know what will happen next, but there's one thing we can all be sure of the only future is one we can all share and leading the charge in building that future his mercy core with over forty years,
and a terrier work under its belt building together is a mercy course. Dna and, as the climate crisis increases their partnering with those on the front lines, making resources more accessible to farmers across the globe. Strengthening community is against escalating natural disasters and ensuring people had the tools they need to thrive mercy course doing the work of matters, but they can't do it alone. That's where you and I come in together, we all have the power to reshape the world when it seems like every day brings a new crisis when every news alert makes you want to throw your phone across the room we may see, to feel a little powerless mercy court. Here to remind us, we don't need to commute based action. We can make change. We are nothing if not in this together. What's next is up to all of us learn how you can be a part of what's possible at mercy core dot, Org, that's
our see why c, o r p s dot org you ve, used in I've, used at two terms that I want to again to you, because I think that they are the fundamental route of how we think about this. So what I'm going to ask? You might sound a little bit basic, but I think it's important. First, the idea of public morals and, more importantly, the idea of common good for me as a libertarian leaning person. The idea of common good? I mean they save, whose common good for for what purpose, whose good who's the common thick and an environment is the United States as an increasingly diversifying country, not just racially but religiously. For example, there have been so many religious freedom cases that have gone before the Supreme Court that have not been about majority religions, but about bit about minority religions. Churches that practice Santa Maria about which former Justice Anthony Kennedy
but you said, like your religion, doesn't have to make sense to be protected. The religion of nine zero decision by the exact were great desert, though, that what am I right? United yeah, it's one of my favorite. I have the Hyalaea yet now and then the federal riffraff comes about again from left and right coming together, not because of their religious rights of Christians reduced, but because of the religious rites of native Americans, to hope witnesses who have been kind of the canary in the coal mine of religious freedom for decades. How do we think about the common good when my religious tradition
or the Halia religious tradition or the religious traditions or even the social traditions of so many different people in this country differ so widely. I think, from the libertarian perspective, that's kind of where you're like just get out of it just get out of the business of trying to decide what it is. I know that you were sbustantially opposed to gay marriage and wrote a lot about that and I think for a lot of conservatives. After the Alberta Feld decision, you heard from some conservatives essentially being like I'm a libertarian on this issue. We should just get out of the government to just get out of this industry so to speak. How do we think about the common and good when. What is good and what is common, even is so up for debate. Yes well, it can be a very difficult undertaking. There's no question about that. So, let's just go back to basics. What is the common good, the common good
is the goods, the values that any particular community is built around. Every community will have a common good, whether it's a political community, a religious community, the community of business, firm, Aristotle, actually has a little sort of VON categorization of these types of communities and different types of communities, different common goods, but in each case the common good of that community is instituted by the values, the goods the purposes the goals. The aims, the things worth having that give members of it. Unity, reason to collaborate together, reason to coordinate their behaviour together, sometimes negatively by staying out of each other's way, sometimes positively by cooperation, so there is the common good of let's say the religious community. It might be the century, it might be the native american church, it might be the Catholics it might be they zorro Austrians, whatever their will
this community, as it will have a common good, the town, weather village in New Hampshire by that's, the city of New York has a common good and the nation has a common good. Now, it's important to sort out jurists threatened and whether Gonna be some blurry lines. On the whole, we have pretty good sense. I think of What is in the domain of the nation, for example, NASH? the fence and making sure that there are trade barriers, deck among the states and so forth, and so on. The constitution is largely concerned with identifying The matters that are within the jurisdiction of the national government, leaving all the rest of the states and localities. We have a pretty good sense in this country. Again, there's birds, areas and gray areas areas but have a pretty good sense of what's for the church and what's for the state? And if it's for the church, the state stays out of it for the state. The church stays out and so forth. We done pretty well, I think, on that, for a pluralistic country it's
raising. We have not had religious wars here. The Europeans have yes, there's his idea of Europe as just unified or make it in that now. The hundred here's war, the thirty years war. And it's so funny when you drawback to like the causes of these words and like you, get went to work, that it sounds mean the great schism which we have the split of the catholic Church or even the brief put point on which we had three Pope's, because a small differences. But anyway I digress. I think it will. If I can just for you, the point, despite the fact that we have this wide religious pluralism we ve not only not had wars of religion. We are we that differences They certainly about that sometimes been pretty beggars, but we have not at anything like what the Europeans have experienced. Religion has flourished here. All the different faces, flourished here in a way that they have not in Europe America to this day, while it's become a bit more secular in recent years, to this day, it's far more religious in Europe
church, is doing better here than it is in France, evangelical, protestant church, a new and better here, then Germany or in Denmark in many unities. Jewish faith is flourishing. Here, more than in TEL Aviv, for example in Israel. So America has been hospitable to religion not only despite, but perhaps in part because of our religious pluralism, but to get back to the concept of the common good within any particular community. It's far from unlikely that, from time to time, sometimes often you'll have disputes about what the goods are, that we should be pursuing what the goods are, that give us reason to collapse, right so within religious denominations. Sometimes there, the the moral equipment. Of civil wars, because we'll take the Methodist smoke recently
Methodist Wanna go in one direction on the big, important moral issues, some Methodist want to go on. The other same for town same for cities. Same spoke the same for the same for nations. We have big debates, big national contests over big issues, Sometimes there are elections that make all the difference in the world like the eighteen, sixty Action are waiting. Whether where even gonna have a nation would depend in law, Measure on who's, gonna be elected there, and here I think, answer is not libertarianism, because that's just it. I think basically trying award the victory? One side advance? I think the answer is democracy. It's what our founding fathers called republican government When we have disagreements which we will even important profound disagreements, We in the end decide that were going to resolve them by constitutionally proscribed agreed upon constitutionally prescribed democratic Republican means we're gonna, stick to our
procedures and principles in resolving them. By lose, which, as a social concerns, and say I have a lot of experience with if I lose in the big public debate, At least I know that I lost in a fair fight. I lost in a situation, in which I had the opportunity in those on my side, had every opportunity to make the case to our fellow citizens. If we failed to persuade them well too bad for us, or maybe too bad for them but we can't say that we were robbed of the of of the victory now and some issues, especially important social issues. That is complicated by the fact that courts, which are least democratic branches of government, the user being our least democratic barns. On courts have come in and short circuited political debates, pose solutions by means that think are not actually consistent with the constitutionally prescribed means. So that's a criticism of Roma
wade or a burger fell versus Hodges. That has led to do with the policies that were finally put into place, which I think can legitimately be debated. Then, with the question of what the procedures were used to settle those policies and there I think, where we went wrong constitutionally, is in allowing courts to resolve them, as opposed to using the constitutionally prescribed democratic means of resolving those issues. It's interesting you bring that up, because I think for some social conservative, specifically that idea of we always lose, has led to some saying. Ok, their support for Donald Trump, for example, is partly because of judges and the courts. The idea that this is not a democratic means of making these decisions, but this is our last stand. This is our bulwark against the intrusion of liberal
or something I was asked the flight. Ninety three Lorraine exactly understand. I think right, prayers argument. Sometimes that's right! There's a lot of truth in this. A lot of people turned to Donald Trump. Undoubtedly know I was there and have remained pretty fierce critic of president from on issues of character and on some issues policy as well, but I know a lot of people who don't like crumbs character, don't like what he says. Don't like his coarsening of our politics, don't even like some of his policies who nevertheless support him. I hear from these people. Sometimes they sometimes they right, very harsh notes to me, but I hear from them and I appreciate and understand what they're saying they're saying: you're somebody who will fight for us here, somebody who we can look to who will stand up to those forces that have cheated us out of a fair fight on issues that we care about a lot of Republicans have said. Well, the courts have really gone astray, but we're going to appoint original list constitutional as judges to the court's. Who will get the court
out of this, so that out of these issues so that they can be resolved by the proper, constitutionally prescribe means and then haven't done it, but Donald Trump, his supporters say he's been as good his word. He has given us those originalist, constitutionalist judges that were promised Ronald Reagan, but often not delivered promised by George Hw Bush, but not delivered promised by George W Bush, often not delivered, but now he's given them to us. A lot of people see as a fighter for them, a lot of ordinary working people see Trump as a fighter for them. When other presidents have talked a good line but not delivered when it comes to standing up for them and for their values, but, as you were saying, the courts or least democratic institution, and so focusing so much on the
ports. It seems to be a circular argument because we have a host of issues. Let's say marijuana legalization, which I know many conservatives differ on, but there are states and city, their voting to support, morale, legalization or decriminalization, and then those issues might go to the courts and the courts that could beat stacked with original stretches could say: no, that's not what we're going to do here based on their enter, of the law, you don't know what you're going to get when voters make decisions, and I think that if there's anything I've learned in my thirty two years of being alive? It's that I have no idea what voters are going to do and sometimes neither do they. But it does seem interesting to me that for conservatives, traditional conservatives who are looking towards the courts to basically say you should be these decisions among yourselves among the demos and then the demos makes a decision and if the demos makes a decision it's like,
we should definitely legalize marijuana and we should decriminalized sex work, and this is what we want to do. How do you think those traditional conservatives would respond by essentially saying we got the judges we wanted, but we still aren't getting the political or perhaps for some conservatives, more importantly, the cultural impact we want. Well, if you ask for constitutionalist judges and you get them, you have nothing to complain about when they respect the constitution, when the constitutional allows people by democratic me to make what you regard as terrible mistakes. So I'm pro life if ROE versus Wade is reversed. This issue is going to heat up. It's not going to be over not gonna, be that suddenly abortion is unlawful and unborn babies get protected. No, if rovers his wages first, all that means is were back in the democratic process. Now I suspect that my fellow citizens in places like We work in California are going to use their dammit authority to do things to create laws
I dont like laws that fail to protect that leave vulnerable So what I regard as lethal violence on born babies now? Have no right, then, to complain and say: Well, you know this isn't what I bargain for, when I ask judges to do the right thing and reverse row versus Wade now Somebody can make argument that that court Sata interpret on a regional list or constitutional scrounge. The Eagle protection clause of the Fourteenth amendment to protect unborn babies, a kind of complete reversal of road, the very opposite of ro- I'm willing to listen to that, but I need to be persuaded by them that this isn't just conservative judicial act I am therefore hypocrisy were conservatives are practising themselves because they now have control of the court's what they condemned progressives for, practising when Progressive said, control of the courts so on really here asking for even handed treating.
With no double standards we applied to the conservative judges. The same rules that we apply to the progressive judges- it's interesting, I think- and I largely sense the idea that ethical out of traditional conservatives have that date. They ve already lost that's where Raw Dreyer of the american conservative. He has the Benedict option. That kind of this that the idea that for traditional conservative, specifically traditional jewish christian conservatives, that the battle of culture has already been lost. And I think that that's where you're starting to see on the debate over pornography, for example, or obscenity, the idea that we can't persuade or use the culture our way out of this. What do you think of that argument that, because liberalism, organ of the idea of liberalism is so widespread that first, social conservatives, it's kind of like? Ok, we just have to take what we can get or
the wines that we can have on these specific arenas. Well again, all I want is for the constitution to be respected If it is, that means all of us whether we're progressive or conservatives, where there were pro legalization of marijuana or against it, whether were in favor. Legal abortion or in favour protecting unborn babies from it. We all have the same equal right to go out into the public square and attempt to persuade our fellow citizens of the rightness of our views. That's democracy. At its best, that's the word of democracy were were able to go out there and make the case dwarfs Citizens, whether succeed or we are, we fail now one We have laws once our laws are decided. I think they should be enforced. Have laws about obscenity. I think they're, pretty good laws like their various. Ways that we could talk about that that we could strengthen them more adjust them. We could, for example, I mentioned earlier. Our conversation, Jane creep, private civil rights
action against point producers of pornography for the exploitation of women or for sex addiction, and so but with the laws we have on the books should be enforced. That's why wrote to eject? a general barred and just said: look enforced the laws to protect people against the harm being done by pornography right now. Going back to our original conversation about obscenity. Eight really goes to this debate about the libertarian conservative divide. And when I spoke with reason: magazines editor in chief Catherine, mangled word. She told me- and I quote her: what you're saying now is this rise of a much more authoritarian and state oriented variant of conservatism, and it just says you know what actually never mind. Let's take away the bad choices, let's make some bad choice is illegal. This has long been a characteristic of the american left
A lot of the conservatory and criticism of your letter or have this overall debate has been the same. Michael Bloomberg. Ask let's ban big sodas, let's use the state even in Europe, to encourage the common good by doing things. It would arguably make people healthier, but also limit freedom. How do you respond to I did it that's authoritarian in some way will we can talk around rhetoric like that? But that's not an argument. It's just rhetoric. It's just using a term in a pejorative way to smear your opponents, those people because they want to worm, ban obscenity or enforce them is that we have against obscenity or authoritarian, makes it sound like they're just like Hitler, but look that's no way to argue. Let's get down to questions of fact, does obscenity, or does it not cause the kind of harm to pump
health and public safety as well as cut public morals that I claim it does now. If a libertarian or a conservatory. Him can show me that it doesn't then I'll say? Then we don't need to act with the force of law in this area, but its long past time. I think that we can credibly believed that it doesn't cost that harm If you look at the work that being published regularly by the magazine, in it, he added by a professor of women studies at University of Rhode Island on a Hughes who documents the role, for example, of sex trafficking in the porn industry that has some published important work on sex addiction. Another things you look at the work being done, studies being done by places like the National Centre on sexual exploitation. It's just possible, really, with a straight face, to claim that obscenity is not doing the harm to public health, safety and morals.
I and other opponents and obscenity or her claiming that its doing now, I'm does not infallible. Maybe they'll come up with something it can persuade me otherwise their welcome to try to answer my arguments in the public square with arguments of their own if they ve got dueling studies competing studies, let them send their studies out there, but that's what this debate should be about. It should be about name you're, an authoritarian, you're, a libertine that doesn't get us anywhere. Let's ask ourselves whether the is being caused. The purposes of government are to protect public health safety and morals and to advance the common good. We've always understood that every Supreme Court, justice who's ever served on the court has acknowledged that it's the core of our understanding of what government is all about. So then the question is: how do we do it? Is there a need for the law to step in That will depend on the harm that depend on whether law can do something significant to ameliorate the harm. That's the kind of debate that we should be having it's fascinating to me, because I think- and I know this is not something that you've
written a great deal about, but I am reminded of how a fork Americans, who advocate for gun control, for example, they talk about guns as a public health crisis and the response from Rotarian, leaning, conservatives or gone owners is essentially that doesn't matter because this freedom is enshrined in the constitution, and I think that the idea of public health or a public health crisis, I think for some libertarians. The response would be like. Yes, it might be bag, but should bad things be necessarily illegal. There are lots of bad things that people could do lots of immoral or immoral things that people take part in every day, and I think my last question to you would be. How do we think about activities? actions that are immoral or amoral, and when do we think about when the government or when civil society should take action on those questions. We all have ideas depend,
on our individual pass or our religious beliefs of what is moral or immoral, and the idea that the promotion of kind of a public morality really depends on what the public values and, as you said, if we all took it, ah and restoring, or going back to the already on the books, obscenity laws and American said. No. We don't want to do that. You made the point that, like you'd, be okay, well, I've lost in the public square, but how should we think about when it comes to morality, which is such a for many people, individual decision or a very little platoon decision? As you said, how should we think about that in relation to how that how government Intervenes or how government is involved in that process, the question of the role of government is itself a moral question and women
Terence argue for a very restricted, very limited role for government may, even just the night watchman state to prevent coercion and deception, making a moral claim and the reason worth pointing that out is what that shows is that we cannot defend any position as to the role of government by appeal to more Subject of is a more moral relativism or moral scepticism. So, if someone says look morality, objective? You have your morality. I have my morality therefore use and be able to impose your morality on me. That person is just contradicted himself because he's making a moral claim asserting it. Something other than subjective something, other than individual one that he is willing to impose. This should be the standard for government government stays out of matters unless they're saw somebody's specific individual rights are being violated, so it can't be on the basis of that. So I think we should just go back to what
All the great teachers of humanity have understood. The role of government should be limited should be subsidiary. It has a or to play and the protection of public health, safety and morals and the advancement of the common good, but that should be limited, sometimes its limited by constitutional constraints. Sometimes there are things because of constitutional restraints or constraints that it would be good nice valuable for government to do but which it can't, because we're not gonna trust government. With that much power, we made that decision and constitutional lost it all of those things I think need to be taken into account. In this complicated debate about what we do. But there is no simple answer like saying you have your morality. I have my morality. Therefore, whatever the weather questioners, obscenity or guns or drugs, the government should just stay out energy just be individuals making their their own decisions at just a poor way to approach the the question
if we're going to reach the end, libertarian conclusions is gonna have to be after eight, an argument that actually confronts all the considerations. That would know it. In favour of some limited, subsidiary governmental government. Why action? At the end of the day, it's really a moral question, do we care enough about when beings members of our community, especially those who are most vulnerable in order to act using what's available to government. Civil society are owned. Individual initiative to protect them government has its role its limited, but it's oil and where government has a proper role where it has not been where that role has not been denied by the constitution where the constitution, as it placed it out of bounds, then we can have the discussion. Whether the government can usefully can help fully Intervene in this area and much just have the debate, and I am not claiming I have a right to win
But I want an opportunity, and I want people on all sides to have an opportunity to make the case to their fellow citizens in the proper forms of deliberate of democracy, and then we'll see how it comes out. And if we can remember democracy, the great thing about Democracy Jane. Is there no permanent winners and no permanent losers. Absolutely not try and experiment, and even if it's got the p, united behind it. If it fails, we can really is that it again. I have another chance to persuade my persuade myself fellow citizens to fight alcoholism. We decided we're going to ban liquor. That was prohibition very narrow exception for going to ban liquor. It had enormous public support. You need enormous public support in order to amend the constitution. After a few years, it became clear that the side effects of this effort to ban liquor were terrible police, corrupt a huge black market, organised crime growing and now
Suddenly the american people willing to look at it again and people are willing to make them able to make the argument to them that you know what it was a mistake: let's go back and was that again and we had an up public support to amend the constitution to repeal the original prohibition, so we can always keep keep coming back. Ah, so I don't think we have to be too timid in acting for fear that will lock ourselves into something henceforth in forevermore, professor charged. Thank you so much for joining me today. My pleasure Jane, thank you. Thank you. So much too rapid charge for joining me. To Jeff Gallagher editor and producer, and the weeds overturned on Tuesday.
Transcript generated on 2021-05-20.