Are you as confused as I am by what passes for political commentary and analysis? Is there anybody who understands the current political mood of the nation, much less is able to figure out who is on what side? Why is the tension between left and right so vicious, so disorienting and disabling? Why do members of Congress have such difficulty “crossing over the aisle,” something that was so common as recently as the 1980s when Republican President Ronald Reagan and Democratic Speaker of the House Thomas P. (“Tip”) O’Neill, Jr., famously dined and joked together regularly? Does it all make any sense?
It makes perfect sense if one abandons the long-outmoded notion that the nation is divided into Democrats and Republicans or into liberals and conservatives. In fact, the body politic these days is divided into no fewer than four general sectors – five, if one deems the libertarians to be a discrete category.
The impact of this division is best understood by examining the warring camps in an actual case that has set left against right – the struggle over whether transgender students should be allowed to use the school restrooms of their chosen gender identity rather than their biological sex as recorded on their birth certificates.
In 2010, the Obama Administration’s Office for Civil Rights (“OCR”) in the Department of Education began to interpret federal laws guaranteeing equal access to the benefits of public education to include gender identity. The movement toward this interpretation of the law culminated in a May 2016 OCR directive that said students in public schools had to be allowed to use athletic locker rooms and bathrooms that coincided with their gender identity. Up until then, many schools in the religious and conservative states provided transgender students with alternative private facilities – the faculty bathroom, for example. The battle – part culture war, part legal battle – rages in the courts and in state legislatures, and in the newsmedia still.
To combatants on the left, the extension of the right of a student born male to use the girls’ bathroom is simply an extension of the right to gay marriage, decided by a sharply divided Supreme Court in 2015.
But the progressive left massively misunderstood social conservatives’ likely reaction to the mandated exposure of younger children to what the conservatives deemed naked or exposed members of the opposite gender. To the religious right, God determines one’s gender. It was a step too far, since it sought to impose “progressive” social views on children and their parents. Social conservatives rebelled.
“The social-conservative awakening that helped elect [Donald] Trump came when voters recognized that the liberal agenda amounted to something more than a shield to protect sexual minorities,” wrote George Mason law professor F.H Buckley in a recent Wall Street Journal op-ed. “It was also a sword to be used against social conservatives.”
The same phenomenon – progressives’ disregard of the outer limits of the right’s willingness to accept progressive social policies – popped up in another arena concerning the right of gays to engage unwilling small merchants to participate, albeit indirectly, in gay weddings. In June, the Supreme Court announced that it would consider whether a baker in Denver deprived two lesbian couples of their legal rights when the baker refused the couple’s order for a wedding cake. The case mirrors other such cases in which calligraphers, florists and other small merchants refused to fill orders for gay weddings.
What we are witnessing is the left’s pushing the envelope far enough to trigger massive resistance from conservatives, particularly religious conservatives, who settled into a grudging acceptance of the rights of others – gays and transgenders – to live their chosen lifestyles, but who drew a line in the sand when it came to, in their view, imposing practices on them and, especially, their children — practices that they viewed as foreign, hostile, sinful.
These two cases offer a microcosm of the larger cultural and political wars that erupted in open view and with great intensity during the 2016 presidential campaign and, with a vengeance, in the aftermath of Donald Trump’s surprising (to many) victory over the widely-anointed Hillary Clinton. But the election exposed another aspect of the cultural and political wars that has been available for viewing for quite some time, but which has come into bolder relief now.
There are in fact two political lefts in this country. There are the traditional liberals on the left who have espoused roughly the same political, economic, and cultural platform since the FDR era. Liberals have championed expanded social programs, erection of a “floor” below which no citizen whose poverty is not caused by his or her own choice or moral fault is allowed to fall, educational opportunities for all, jobs for those willing to work, and a health care system that deems medical care a right. They have fought to protect civil liberties, including free speech, protection of constitutional rights including privacy and the right against self-incrimination, the right to a fair trial if accused of a crime, and other rights specified in the Bill of Rights. (Disclosure: I consider myself such a liberal.)
Then there is the “progressive” left, which is much more hard-edged, especially on social and economic issues. Progressives are much more prone than liberals to cut-off the speech rights of those with whom they disagree, including liberals. (One simply has to follow the antics of progressive college students who are willing to riot rather than allow a speaker, with whom they disagree, to be heard.) They are relatively unsympathetic to the right to own private property. They are willing to endow government bureaucrats with enormous power over the lives of citizens and over the public purse.
Progressive activists demand that party leaders require far-left ideological purity of all candidates. The progressive wing of the party erupted in backlash, for instance, when the Democratic National Committee added anti-abortion Democrat Heath Mello, a Nebraska state senator and Omaha mayoral candidate, to a DNC rally in that conservative mid-western state.
The divisions on the left are also visible in the ongoing debate over whether Education Secretary Betsy DeVos’ should rein in heavy-handed Obama-era policies that led to a proliferation of unfair campus sexual assault tribunals. Some liberals, like Boston Globe columnist Dante Ramos, have rightly acknowledged that these policies, which led to fewer due process protections for accused students, have been, in the words of Ramos, “toxic for civil liberties on campus”. But progressive activists argue the Obama-era guidance protects sexual assault victims, particularly women, and, therefore, it must be upheld.
On the other side of the spectrum live the traditional conservatives: the heirs of the stereotypical old, wealthy New England families like the Bushes. They tend to be political and cultural conservatives who argue and fight for fealty to “traditional values.” They often are more outwardly religious than most other citizens. Many such conservatives over the generations have served Massachusetts in the United States Senate, and in the State House. Many of these conservatives have established themselves as judges, writers, public intellectuals. They tend to support the Bill of Rights, but with an overlay of tradition.
And then there are those on the right who deem themselves conservatives, but who flunk my test because they demonstrate too weak a fidelity to constitutional values, civil liberties, and social norms. They are in fact right-wing extremists who, at the tip of the spectrum, can appear to be dangerous, with too much of a look-and-feel of fascism. There have been, and still are some such people in President Trump’s inner circle, which worries many observers. I refer only half-jocularly to this end of the political spectrum as the “troglodyte right.”
Supplementing these four groupings, we have the libertarians. They generally support the civil liberties platforms of the liberals and of the conservatives – free speech, privacy, private property, due process – but they take a more radical view of economic liberty, opposing most forms of governmental regulation. They have a relatively small but loyal following. Their political party is abysmally weak, although it occasionally can win local elections. (Libertarian Gary Johnson was twice elected governor of New Mexico as a Republican. And Ron and Rand Paul, also libertarians, were elected to Congress as Republicans.) The libertarian movement’s most prominent and influential manifestations are well-funded think tanks, not political parties, such as the Reason Foundation and the Cato Institute. (Disclosure: I am an Adjunct Fellow at the Cato Institute, for which I write and speak on civil liberties,especially free speech, criminal justice, and academic freedom.)
What has happened to our culture and our polity is that these groupings have become increasingly polarized and too often intolerant of differing or dissenting opinions and viewpoints. This is particularly true of the progressive left and the troglodyte right, both of which, it might be said only half jocularly, deserve each other. The problem is that when they fight it out they consume all of the political air, and they treat political competition as a struggle in which only one side survives. The nation is held hostage by these two extremes, each of which sees politics, culture, and government itself as a zero-sum game in which there are only winners and losers, right and wrong, rather than democratic co-existence.
It is in this vortex that we find ourselves today. The challenge is to dig our way out of the current mess with our society, and our rights, reasonably intact.
Harvey Silverglate, a criminal defense and First Amendment lawyer and writer, is WGBH/News’ “Freedom Watch” columnist. He practices law in an “of counsel” capacity in the Boston law firm Zalkind Duncan & Bernstein LLP. He is the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (New York: Encounter Books, updated edition 2011). The author thanks his research assistant, Nathan McGuire, for his invaluable work on this series.