If, in the modern era, a speaker proposes that one “cannot make an omelet without breaking eggs,” his audience can safely presume that he is joking. At one point, perhaps, it was deemed copacetic for leaders to off a few innocents in order for the living to get the right idea, but, in these more enlightened times, such displays are rather frowned upon. By all means make your case, our better angels enjoin. But keep the guiltless out of it.
This conceit has been accepted widely throughout civil society — indeed, it arguably put the “civil” part into that welcome phrase. And yet, from time to time, we are reminded that not everybody has quite grasped its consequence. Among those who are struggling with the idea is Vox’s Ezra Klein, who yesterday afternoon argued in no uncertain terms that we should disregard the due-process rights of accused rapists in the name of bringing about social change. California’s controversial new sexual-consent law, Klein wrote, was little short of “terrible,” and yet, because he agrees with its intentions, he has decided to “completely support it” anyhow. “If the Yes Means Yes law is taken even remotely seriously,” Klein explained, “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,” he concluded, “is the case against it and also the case for it.”
Or, rather: What is terrible about this law is, in fact, what is wonderful about it. The law’s “overreach,” Klein says, is “precisely its value,” authorities having hit upon “a necessarily extreme solution to an extreme problem.” That “cold winter” of which he writes? That’s a feature not a bug, the measure’s virtue being, in Klein’s words, that it will “create a world where men are afraid” enough of the authorities that they “feel a cold spike of fear when they begin a sexual encounter.” All in all, Klein adduces, “The Yes Means Yes law could also be called the You Better Be Pretty Damn Sure law.”
That’s one option, certainly. Another modest proposal might be, “An Enabling Act for the Salem Rape Culture Trials.”
Since the nation’s universities first started to go down this road, opponents of such enactments have leveled two key criticisms. The first is linguistic. As a matter of dull routine, progressives have taking to shouting “government in the bedroom!” at almost any available juncture. Don’t want women to kill their unborn children in a hospital? “Government in the bedroom!” Oppose the redefinition of marriage? “Government in the bedroom!” Believe that Catholic charities should be able to decline to provide contraception within their benefits packages? Etc., etc. And yet, now that states and colleges are drafting sexual-consent rules that, in Heather Mac Donald’s immortal phrase, “resemble nothing so much as a multi-lawyer-drafted contract for the sale and delivery of widgets,” there is nary a peep from the usual suspects. What gives, guys? Cat been given explicit written permission to clench your tongue?
The second objection is a more serious one: Namely, that attempts to micromanage the personal and subjective realm of private sexual behavior will inevitably end up undermining due process. Alarmingly, Klein doesn’t even bother to pretend that this will not be the case. Instead, he describes the subversion of presumed innocence as the idea’s central virtue:
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.
Or, as he puts it somewhat eerily later on, “ugly problems don’t always have pretty solutions.”
Criticizing this approach, New York magazine’s Jonathan Chait noted that Klein is essentially “arguing for false convictions as a conscious strategy in order to strike fear into the innocent.” This, Chait suggested represents “a conception of justice totally removed from the liberal tradition.” Chait is correct. Indeed, this is as brazen an example of illiberalism as I have seen for a good while. And yet I’m not at all sure why we are supposed to be so taken aback by it. Even if it were the case that the average American “liberal” was a champion of individual rights and due process, it would be wholly irrelevant to this case. Why? Well, because Ezra Klein isn’t a “liberal” in any meaningful sense of that word, and because, far from agonizingly sacrificing his “liberalism” in the name of a competing good, Klein has merely done here what all rudderless, easily distracted progressives do: He has proposed a blunt increase in the power of America’s Star Chambers as the natural answer to the problem du jour.
In doing so, Klein has neatly illustrated just how dangerously capricious and supple the Progressive Hierarchy of Pieties really is. I daresay that it is rather easy to be a “liberal” when liberalism lines up nicely with the prevailing sentiments of one’s social cohorts. But it is much, much harder when it does not. Genuine “liberals” — those in the tradition of John Locke and Adam Smith, and not of Herbert Croly or Rachel Maddow — do not forsake timeless principle for last night’s orthodoxy because, for them, due process is as important today as it was at the time of Magna Carta. Ezra Klein, by contrast, appears to be something of a weathervane. Forced to choose between the universal principles of the Enlightenment and the transient pressure of this year’s moral panic, he plumped squarely for the latter. For shame.
Still, I’d venture that this should surprise precisely nobody. As Freddie deBoer argued brilliantly earlier this year, the “online liberalism” to which Klein and his ilk primarily cater is not really “a series of political beliefs and alliances but instead a set of social cues that are adopted to demonstrate one’s class background — economic class, certainly, but more cultural class, the various linguistic and consumptive signals that assure those around you that you’re the right kind of person.” Because faux-“liberal attitudes change very rapidly and then congeal into a consensus that is supposedly so obviously correct that it does not need defending,” hard and fast ideals are expendable — just tools to be deployed for as long as it is convenient, and thrown to the wayside when it is not. “In the past year,” deBoer noted, “liberalism as an elite social phenomenon has abandoned first rights of the accused and second the right to free expression.”
Indeed so. And why the hell not? When you have no North Star, all is mere expedience. When you see no natural rights with which you must contend, each and every question becomes a mathematical balancing act. And when you are cheered for sabotaging justice and booed for advocating fair play, your incentives begin to go askew. Somebody has suggested that one in five female college attendees are assaulted? Time to cut the prissy talk, liberals, and to fetch the Malay boot and the rack. Hurry, hurry, we have a culture of fear to instill — pour encourager les autres, natch.
— Charles C. W. Cooke is a staff writer at National Review.