Monday, October 11, 2010

Bad cases, bad law

It is both a strength and a weakness of the American political system that so much energy is expended on matters of principle. Other nations tend to find this admirable, humorous, inspiring, irritating, or all of the above. During the negotiations following the end of World War I, the French premier Georges Clemenceau was repeatedly driven to distraction by Woodrow Wilson and his high-minded notions on how to refashion the world for good; Clemenceau remarked that he could deal with Woodrow's aide Colonel House, who was a practical man and who seemed to understand how to cut a deal, but that talking to Wilson was "like talking to Jesus Christ."

Part of the appeal of invoking great principles in politics, of course, is that it invests a dirty or mundane business with lofty purpose and high drama; it doubtless feels better to declare that one is fighting to uphold liberty and great constitutional principles than to admit that one just wants to retain one's slaves, pay less taxes, or wrest away various colonial possessions from Spain (to cite a few examples from American history). The ever-reliable Ambrose Bierce defined politics as "A strife of interests masquerading as a contest of principles."

But it was actually a definition a few lines down in The Devil's Dictionary that I found myself contemplating in connection with the American tendency to invest political battles with great consequence:

     Positive, adj. Mistaken at the top of one's voice.

On issues as diverse as animal rights, gun control, user fees for national forests, and local zoning ordinances, I've seen people who did not really differ very much on practical grounds, and who might  well have reached a pragmatic compromise on substance, engage in take-no-prisoners battles royal over their competing underlying ideologies. The more an issue becomes a proxy for a contest of fundamental belief, the more each party digs in its heels — and the louder each becomes.

Contests over principle in fact tend to be fought over trivial or grotesque matters at the farthest frontier precisely because they are seen as establishing bulwarks against encroachment at the core; thus the NRA insists that there will be no gun rights at all if guns are banned in bars and schools; thus the ACLU defends the free expression of Nazis and pornographers to safeguard the free speech rights of sane and decent people.

The case heard last week by the Supreme Court in which members of the fringe (that's the polite term) Westboro Baptist Church invoked their First Amendment right to tell the families of dead soldiers how happy they are that God killed their sons as punishment for the military's supposed tolerance for homosexuality ("God hates fags" explains one of their frequently seen picket-line signs) is a perfect illustration. The New York Times and other journalistic organizations filed a friend of the court brief arguing  that as "lamentable" as the church's utterances are, "it is in the interests of the nation" (as the Times editorialized) that political speech be protected, and warning of the "chilling consequences" if a monetary damage awarded against the church to the family of one soldier were upheld.

But a refusal to acknowledge reasonable exceptions to a principle can be damaging to the principle too. I've often found my fellow journalists to be doctrinaire to the point of pomposity — and to the point of endangering the very principles they claim to be defending — on matters of press freedom. One of the worst recent instances was the fall-on-their swords defense of confidential sources in the Valerie Plame matter. It would have been one thing if the confidential source had been a courageous whistle-blower exposing wrongdoing at the peril of his job; but instead it was a government hack issuing Roveian spin and using anonymity as mere political deniability. The only effect of all of the high-minded words about the role of the press in a free society that were spilled in the course of the affair was to make reporters look like a bunch of patsies.

By the same token, I am deeply skeptical that it does much to bolster freedom of speech to invoke that principle in the case of the deliberately confrontational picketing of soldiers' funerals by the Westboro Baptist Church. Those actions fall much more in the category of a common breach of the peace than anything deserving of the sweeping legal protection of a blanket immunity. As the father who sued the church said, “If the law can’t help us and the courts won’t do something, someone is going to take this into his own hands.”

Accepting exceptions and even occasional inconsistencies in the application of principles is a sign not only of maturity and wisdom but arguably philosophical necessity. Our instinctive commitment as rational beings is to the idea that we can develop perfectly consistent and logical systems of rules in law, mathematics, and other supposedly rational endeavors, and we have almost a horror of inconsistency as a betrayal not only of principle but of rationality itself. But a few years ago I read a fascinating book by the philosopher Robert Fogelin, Walking the Tightrope of Reason, which explored among other things Ludwig Wittgenstein's work on games with inconsistent and incomplete rules; one of the striking conclusions is that in both formal systems and everyday life, we routinely get along just fine with logical systems that lack complete and consistent rules for dealing with the extreme and rare cases. Moreover, trying to build a system that can cover every conceivable case turns out to be literally impossible.

We'd be better off sometimes if we temper our passion for rigid principle with humility about life's complexity and even absurdity; or if we remember the wisdom of that great philosopher Lord Peter Wimsey, who observed, "The first thing a principle does — if it really is a principle — is to kill somebody."