Wednesday, October 22, 2014

Liberals, Liberal and Otherwise

When liberals go to extremes they typically become either too expedient and pragmatic – sacrificing means to ends – or they become egalitarian heroes, knights in armor slaying dragons of power and privilege.  The pragmatism is adopted from a certain strain of conservatism (consider Aristotle celebrating prudence as the highest political virtue and Burke objecting to policy based upon mere rational principle).  But the heart and soul of the liberal project has always been egalitarianism, the freeing of individuals from inequitable distributions of power.  At first it was fighting for religious dissenters against established churches; then the common man against aristocratic privilege; the individual against the state; the slave against the slave-master; the worker against the capitalist; blacks and other racial minorities against white supremacy; women against patriarchy; gays against homophobia.  In each case, liberals have been on the side of the down-trodden against entrenched interest.  And that’s how they always see themselves, even when they’re the ones wielding power.  But put expediency and egalitarian righteousness together and you have a very potent – and potentially very dangerous – combination. 

And that combination is the driving force behind the new rules and laws addressing sexual assault on college campuses.  No reasonable person denies such assault is a very real, widespread and terrible problem.  According to the Centers for Disease Control, 19% of undergraduate women have “experienced attempted or completed sexual assault since entering college.”  But19% cannot possibly be the work of a few deliberate criminals.  There must be something profoundly wrong with the sexual culture itself.  Clearly, it happens much too often that the woman feels coerced and the man either doesn’t realize or doesn’t care.  The latter case is clearly rape.  The former is not what we would normally call rape, and at least some of the time it represents little more than male inexperience and cluelessness.  But much of the time it represents something much darker, something deeply dysfunctional and destructive: egregious male narcissism and privilege.  This is male sexual power maintained through sheer physical strength, and it engenders female fear and diminishes female options.  It’s hard not to see all of this as part of the broader social problem of male domination of women.

The new rules and laws are designed to combat that privilege and domination, and they mostly do so by implementing “affirmative consent”, which defines sexual consent as ongoing, explicit agreement, not the mere absence of explicit refusal.  “Yes means yes” supersedes “No means no.” The state of California recently enacted a law mandating that all its colleges enforce sexual assault guidelines using the new, stricter definition of consent.  And many colleges across the country have instituted new procedures based upon the yes-means-yes standard. 

But many conservatives (who generally oppose feminist-inspired change) and libertarians (who generally oppose government intervention) find them objectionable, as do many liberals, some of whom have characterized the new policies as “illiberal.”  Twenty-eight members of the Harvard Law faculty recently protested against the procedures Harvard uses, complaining they “lack the most basic elements of fairness and due process [and] are overwhelmingly stacked against the accused.” Feminist lawyer Robin Steinberg worries – as reported by Judith Shulevitz in a piece titled “Accused College Rapists Have Rights, Too” – that these new types of rules “reveal a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes.” 

Some supporters of the new rules deny they endanger anyone’s legal or procedural rights.  Ezra Klein, editor-in-chief of the liberal website, writes “there’s no contradiction between a fair and clear process, real protections for the accused, and an affirmative consent standard — and there's no reason one shouldn't support all of them simultaneously, as I do.”  In theory, of course, that’s true; changing the standard of sexual consent doesn’t necessarily infringe anyone’s rights.  But trying to legislate such a strict standard for an activity so inherently full of subtleties and ambiguities is asking for trouble.  And, unlike the rules for actual criminal courts, where guilt must be proven beyond a reasonable doubt, a college panel can find a student guilty – and expel him and ruin his life – based upon only the preponderance of evidence.  The combination of a very high standard for consent plus a very low one for guilt moves the onus of proof from the accuser to the accused; it amounts in practice to the elimination of the presumption of innocence.  California’s new law mandates that even sex within a healthy relationship requires “affirmative consent” every time, in effect re-labeling almost all present-day sex as assault.  But the law’s defenders say not to worry, since it will only be enforced when a woman has been genuinely coerced and not in those countless everyday cases in which it legally applies.  Well, how reassuring!

But some defenders of the new law argue that such excess is necessary to effectively address the problem.  Klein is eager to put the fear of God into all men:

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.

Klein is right that something must be done to address our dysfunctional, patriarchal sexual culture, but is suffocating all sexual relations with fear of juridical authority a constructive way to do so?  Even our rather damning analysis of that undeniable dysfunction concedes that ambiguous situations can arise innocently.  But Klein’s perfectly OK with criminalizing that ambiguity:

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that's necessary for the law's success. It's those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.

It is indeed “sad” that legislating such a strict, unprecedented, unfamiliar, confusing, dangerously broad standard could harm what are essentially innocent young men, but “it’s necessary for the law’s success.”

This is the grim face of authoritarian expediency, all the more alarming for its heedlessness.  According to Klein, et al, all women are justifiably afraid of all men, and that situation must be replaced by one in which all men are afraid of legal or semi-legal punishment, even unjustified punishment.  The pro-affirmative-consent crowd may dispute it, but their position in effect is that our normal understandings of due process, presumption of innocence, and sexual ambiguity stand in the way of protecting women from the most violent and reprehensible expressions of patriarchy, and therefore must be discarded.  According to Amanda Taub, female fear of men “reinforces power imbalances that keep women out of positions of success and authority.”  And here’s Klein with the answer: “Ugly problems don't always have pretty solutions.”  Egalitarian righteousness plus thoughtless pragmatism equals liberals doing quite illiberal things.

But the point, of course, is that it’s not illiberal, not when you remember that the animating purpose of liberalism is the fight for the oppressed against the powerful.  To affirmative consent supporters, women are the oppressed and men are the powerful and anything is justified in the service of female liberation.  How can weakening the rights of oppressors itself be an act of oppression?  Habitual identification with the oppressed seems to prevent liberals from realizing that they’re actually winning the culture wars, or that they have achieved genuine social and legal power.  In this view, the state and the university are not capable of oppression, since they fight for the oppressed against the oppressors.  How can agents of liberation themselves be oppressors?  We see the same dynamic play out in liberal intolerance toward opponents of same-sex marriage.  And we should note, as does Andrew Sullivan, the heavy influence on campus culture of post-modernism, with its insistence that there is no truth independent of some political agenda, and that, as Michel Foucault put it, “politics is war by other means”; such views do not exactly make one conciliatory toward any oppressive class.  And we see why the affirmative consent doctrine has so far only been applied to academia: it’s the only place where illiberal liberals are powerful enough to get away with it.  For now.

But if self-righteous identification with the down-trodden is so inherent in liberalism then why don’t all liberals support the affirmative consent movement?  What is it that makes some liberals resist?  There are two countervailing principals at play. The first is a broader pragmatism, understood not as mere expediency, but as something more like humility, as appreciation for the limits of human action in the face of the unimaginable complexity and intransigence of human existence.  This amounts to a more tragic view of life, one in which there are no perfect solutions, no set of principles that would solve all our problems if only we applied them more thoroughly.  The more liberal liberal understands that some of our most important and desirable goals – such as liberating women from patriarchy – can conflict with others equally or more important – such as protecting individuals from authoritarian abuse.  And secondly, the wise liberal understands how particularly important it is to fight that authoritarianism, even the liberal version.  With power comes responsibility and that responsibility does not disappear simply because your goals are noble and your cause is just.  Virtuous intentions are meager protection against an overzealous or unscrupulous prosecutor armed with an ill-conceived and over-reaching law.

The broader, wiser pragmatism is – like the expediency itself – a borrowing from conservatism.  But the skepticism of juridical authority is essential to liberal thought and liberal political culture.  Go back and look at that list of historical liberal fights for the oppressed.  One of the very first is the protection of the individual against misuse by the state, which primarily takes the form of individual legal, political and civil rights.  Those rights are typically seen as inherent and inalienable, but we can understand them better as protectors of individual interest.  Libertarians typically treat them as absolutes and fail to see their instrumental nature.  And libertarians fail to perceive any oppression beyond state oppression.  Modern liberals understand how limited that view is.  They’re wise enough to see the iniquitous power relations that surround us: in capitalism, in culture, in patriarchy, in religion, in the family.  But they must insistently remember the special case of oppression that is legal oppression, the special danger of a state or a university with the power to punish and destroy.  This is how we keep liberalism honest and beneficent. Wisdom demands that we respect the destructive power of all those oppressions, while humility demands we acknowledge the limits of liberation.  But crucially, the earnest, passionate liberal hatred of oppression demands we never sacrifice the most important liberation for any other.