Ed. note: Please welcome Tyler Broker to our pages here at Above the Law. He will be writing about constitutional law and civil liberties.
I want to begin my inaugural column here at Above the Law with a simple, but difficult question: Is principled consistency possible?
One of the most consistent principled figures I have ever followed in my adult life was Christopher Hitchens, but even he had to admit that on the topic of free speech “[w]e are all hypocrites here.” Be that as it may, I desperately want to believe that on issues of civil liberties, at least, one can maintain principled consistency. However, I must also admit that there is not much evidence of it.
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For years, the one area of agreement I enjoyed with my liberal and progressive friends was a disdain for theocratic ideals based on religious conservatism. Particularly on topics such as the state attempting to ration or restrict access to contraception and the civil dignity of LGBT people. Therefore, it came as great shock to see many of the same folks who once agreed with me when it was white, religious conservatism being criticized, suddenly flip when the topic of debate revolved around “brown religious-conservative attitudes about hiding the female form in the name of modesty.”
The initial shock eventually subsided into cynicism as I watched figures such as Maajid Nawaz and Ayaan Hirsi Ali denounced as bigots by many on the left. Simply because they dared to criticize covering the female form for the sake of “modesty” from the same principled liberal viewpoint they have always utilized. Against that backdrop, the latest liberal misdirection over some of the most despicable crimes imaginable — because the Pope supports climate change and stuff — comes to me now as no surprise at all.
Lest I invoke the wrath of my now colleague Elie Mystal, this will not be a “both sides are bad” opening piece. As it stands currently, there is no contest as to which “side” is displaying the greater break from principles. The free trade, healthy respect for federalism, and that character matters in politics – things that were once the bedrock tenets of the national GOP — were abandoned with astonishing quickness in 2016. That such concepts have since been replaced by blood-and-soil politics is perhaps not surprising to many liberals, but it is sickening and shocking to many such as myself. It represents the most astounding break from ideological consistency I have ever witnessed, with all other examples being a distant second.
Nevertheless, despite the innumerable examples of failure, I remain convinced that personal fidelity to a set of principles, while perhaps immeasurably difficult, is nevertheless entirely possible, even ideal. Why? Because I have plenty of inspirational examples of it. Figures on the right such as David French, Jonah Goldberg, and the great George Will, have all inspiringly stood on principle against what they have seen happen to their party. Liberal figures such as Hitchens and Aryeh Neier have stood up for the principles of free speech even for despicable human beings such as literal Nazis.
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I look to these examples for hope, and as a counter balance to my natural inclination towards cynicism. They also provide me with an understanding that what unites all these inspiring figures (including Nawaz and Ali), is not politics, but a commitment to the principles enshrined in our Constitution, particularly in the Bill of Rights. Our civil liberties were meant to be nonpartisan. So, as I discuss the issues that surround civil liberties here at Above the Law, I will attempt to remain as principally committed to them, regardless of politics and personalities, as those who have inspired me have done.
Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him to discuss his column.