Overturning norms
They may or may not have been playing the song “The World Turned Upside Down” when Lord Charles Cornwallis’ troops surrendered to Gen. George Washington at Yorktown in 1781, but there’s good reason to sing it now.
Progressives tell us that it is a violation of “democracy” to allow state legislators and governors elected by voters to decide how to regulate or criminalize abortion. “Democracy,” in this view, requires such decisions to be made by nine unelected judges.
Progressives tell us that “democracy” requires “content moderation”—censorship, in plain English—of all communications over prevalent social media platforms such as Twitter and Facebook.
Things haven’t quite become an Orwellian dystopia in which “democracy” only requires an agreement that two plus two is five. But we have gotten to the point that speech considered offensive must be called violence, and “mostly peaceful,” or violent, protests must be regarded as speech.
Progressives have also moved to suppress information formerly considered useful but now stigmatized for producing politically incorrect results. College and graduate school admissions offices are dropping standardized tests, and felony charges for stealing goods under some amount—$950 in California—are barred.
Those who invoke “democracy” often do it to justify something like its opposite.
The justification for turning the world upside down varies. Those claiming that “democracy” requires few or no restrictions on abortion have the excuse that the Supreme Court 49 years ago plucked out of thin air (rather than any clause of the Constitution) a right to abortion and has reasserted it ever since.
Advocates have been unembarrassed by liberal scholars’ devastating criticism of this Roe v. Wade decision, going back to John Hart Ely in 1973, who wrote that Roe “is not constitutional law” and “gives almost no sense of an obligation to try to be” and to Ruth Bader Ginsburg in 1985, who wrote, “The Court ventured too far in the change it ordered and presented an incomplete justification for its action.”
Amid all of the lamentations of Justice Samuel Alito’s leaked draft opinion purporting to reverse Roe, you will search in vain for full-throated defenses or celebrations of the reasoning of Justice Harry Blackmun’s opinion.
My view is that it owes much to the fact that of all the 115 Supreme Court justices in history, Blackmun spent more of his pre-judicial career as a lawyer for doctors, who were the people prosecuted under criminal abortion laws.
The progressives arguing for social media censorship (“content moderation”) must search back further in history for judicial sanction—back, perhaps, to Justice Oliver Wendell Holmes’s analogy of shouting “fire” in a crowded theater in a series of cases, some of which upheld the Wilson administration’s criminal prosecutions of peaceful protesters against World War I.
Progressives argue “democracy” is suddenly threatened by “misinformation,” and the prime culprits are former President Donald Trump and his supporters, arguably a target-rich environment.
Actually, the most successful purveyors of “misinformation” have been the progressives themselves. For the better part of three years, with the cooperation of Pulitzer Prize-awarded journalists, they advanced misinformation in the form of the Russia collusion hoax, concocted apparently by operatives of the Hillary Clinton campaign and nurtured by intelligence officials and a duplicitous FBI director.
That doesn’t excuse Trump’s multiple misstatements and baseless charges that the 2020 election was stolen. Two wrongs don’t make a right. But it does highlight that in seeking to delegitimize an election result, both Clinton and Trump violated a political norm observed by Richard Nixon in 1960 and Al Gore in 2000. Good luck getting progressives to admit that.
Why are progressives just now overturning norms, insisting that democracy requires courts to remove an issue from voters, and progressive censors removing speech from public forums?
Presumably because things aren’t going their way. The 2016 Russia collusion hoax fizzled in 2018, the 2020 suppression of the Hunter Biden laptop information has come undone in 2022, and Twitter’s progressive censors are about to be sacked by the pro-free speech Elon Musk.
That leaves the Biden Democrats in trouble as inflation, immigration and crime escalate out of control. Rising inflation and illegal immigration can plausibly be attributed to Biden administration policies and rising crime to many Democrats’ embrace of “defund the police” policies.
No wonder the Biden administration is creating a Government Disinformation Board to be headed by a purveyor of the Russia collusion hoax. When you’re losing on the facts, argue the law. When you’re losing on the law, argue the facts. When you’re losing on both, shut the whole discussion down—and call that “democracy.”