Letters

From the March 1998 issue

(Page 3 of 5)

James Maloy
Greeneburg, PA

Michael Greve replies: James Maloy and I are not going to agree on Romer. I think that Bowers--the lone Supreme Court precedent on homosexuality--was very relevant to Romer. The Romer majority harangued the Colorado voters for their "animosity" and "bare desire...to harm" homosexuals; to me, that's an accusation of "bigotry." Having read and re-read the opinion, I am at a loss to discern any of the "strong arguments" to which Mr. Maloy alludes.

What I do discern is Romer's holding that we must not "exclude" homosexuals from the "civic life of a free society." The private right to exclude, however, is called freedom of association. Romer ran rough-shod over this fundamental right. Why should libertarians strain to defend this result?

Don Erik Franzen shows a similar tendency to set aside--or not think through --libertarian commitments when sex, life, and death are at issue. He castigates Justice Scalia for his failure to discover--in cases dealing with abortion, the "right to die," and homosexuality--pre-political, constitutional rights "to control one's body, to end one's life, and to choose whom one sleeps with."

But the right to control one's body ends where someone else's life begins; for this reason, libertarian beliefs about the role of the state don't settle the abortion question. There is a right to die, in the sense that everyone can exercise it at any time. But the far more complicated question in the misnamed "right to die" cases is whether one can recruit a doctor's assistance in the act. And, sorry: There is no general right to "choose whom one sleeps with." One may not sleep with the dead or with sheep, for instance (and it's not because they can't consent).

I have considerable sympathy with Franzen's natural-rights thinking. But rights without contours are mere slogans; the question is, who determines the contours? Franzen is mistaken in suggesting that the determination and enforcement of extratextual rights by the Supreme Court have helped or will help "keep government at bay." To repeat the point of my article: If the Supreme Court's Constitution doesn't reflect the text, it will reflect the interests of the dominant elites. Perhaps we get a few highly questionable "reproductive rights," but we certainly get a constitutionalized nanny state.

Brett Bellmore, intriguingly, suspects that Justice Scalia himself may be a closet elitist. He suggests that Scalia underestimates the extent to which public (more precisely, populist) opinion would permit a textualist reconstruction of constitutional norms. Bellmore raises exactly the right question. I'm not sure, though, that Justice Scalia's instincts on "the limits of public tolerance" are "grossly awry." My sense is that Justice Scalia would gladly cast his jurisprudential lot with Second Amendment enthusiasts and other constituencies of Grover Norquist's "Leave-Us-Alone" coalition, if he were confident that they can eventually prevail over the governing elites. Can they?

The Croly Grail

Virginia Postrel's essay on Herbert Croly ("The Croly Ghost," December) should, I think, be seen as merely the first installment in a long-term commitment to examine the moral-intellectual foundations of American Progressivism. For a century now, leftists have enjoyed an intellectual free ride on the assumption that those foundations are not only secure but virtually beyond question. All too often, classical liberals have acquiesced in that assumption, trimming their principles to fit leftist strictures. As Postrel's essay indicates, however, that assumption and procedure must be questioned: "Seven decades after [Croly's] death, we are still living in the political world his ideas built--and struggling to escape it."

To make a clean break from it, however, we need to go even further than Postrel's claims and look to the antecedents of Croly's thought in 19th-century positivism. It's worth remembering that Croly was no intellectual innovator, but a professed and ardent disciple of Auguste Comte, the father of positivism. Comte's work, in turn, is notable for two related ideas, both integral to the rise of totalitarianism in Europe: 1) the rejection of ethical individualism and individual rights and 2) the affirmation of anti-technological environmentalism. Comte was quite explicit that the basis for both ideas was his commitment to the ethical doctrine he devised and named "altruism." Altruism, as Comte conceived of it, was the virtue of self-denial and self-sacrifice, and it was the "highest virtue" in his celebrated "religion of humanity."

As Louis Budd points out in his important essay "Altruism Arrives in America" (American Quarterly, Spring 1956), Herbert Croly was one of the most eager advocates of this new ethical vision, which he, like Comte, conceived explicitly in altruistic terms. Croly's commitment to Comte's altruism provides the best explanation for why he thought that the "Promise of American Life" required "individual subordination and self-denial," and had to lead to such "serious moral adventures" as American involvement in World War I.

It also explains, via Croly's influence, the moral-intellectual reasons for the rejection of classical liberalism in the early 20th century. As Eric Goldman explains in his book Rendezvous with Destiny, both Croly and his disciples at The New Republic were very clear about the connection between self-sacrificial altruism and the statist politics they wished to implement. A look at recent issues of The New Republic indicates that some things never change.

With these elements in place, one can better understand Ayn Rand's otherwise counterintuitive suggestion that altruism is not only incompatible with individualism and rights but subversive of them. If self-sacrifice is one's highest virtue, its practice requires a consistent commitment both to sacrificing one's own rational agency to others, and to insisting that others, in consistency, do the same--coercing them "by a certain measure or discipline" if need be. By contrast, an ethics that defines the good in terms of egoistic virtues like rationality and independence will insist that self-sacrifice is a great evil and that nothing good can come of it. A philosophy that defends the pursuit of happiness against subordination to the needs of others will insist that moral agents are ends in themselves, not means to anyone's "moral adventures."

As Ayn Rand put the point in The New Left: The Anti-Industrialist Revolution, the battle against the left's supposed monopoly on moral-intellectual matters consists not merely of denouncing it but of exposing its pretensions. An intellectual movement that takes the likes of Auguste Comte and Herbert Croly as its mentors is in no position to be taking the high road on questions of morality, much less writing its views into law and forcing them upon others. It's about time that leftists, so eager to question "established beliefs," be asked to confront the rather dubious provenance of some of their own "established beliefs." Postrel's essay may not literally force them to rethink those beliefs, but as classical liberals I suppose we can all live with that.

Irfan Khawaja
Princeton, NJ