Indifference and Ignorance Are Destroying Our Democracy

Earlier this week, my friends and former colleagues at the Alliance Defending Freedom filed a lawsuit on behalf of 51 families challenging an Illinois school district’s policy that grants boys access to girls’ bathrooms and locker rooms. This policy was “mandated” by the Obama administration’s Department of Education, which has reinterpreted Title IX — a law prohibiting sex discrimination in federally funded educational facilities — as requiring public schools to open their restrooms to people of both sexes.

The so-called “bathroom wars” have been debated endlessly of late, and I don’t intend to rehash that debate here. But it’s worth pointing out the Obama administration’s masterful exploitation of two trends that are destroying our democracy: public ignorance and indifference. Voters don’t know and don’t care about the law, Constitution, or due process. They just want Big Brother to achieve their desired results. Big Brother, never shy about seizing more power for himself, is happy to comply.

The bathroom issue is illustrative. Congress has never passed a law prohibiting educational institutions from discriminating based on sexual orientation or gender identity. But social-justice warriors demand results, so rather than complying with the Constitution’s pesky law-making requirements — or even their own regulatory processes — the DOE and Department of Justice simply “reinterpreted” the law through a series of letters and memoranda.

In 2014, the DOE wrote a 46-page “Questions and Answers” treatise, nominally to explain the legal issues surrounding “Title IX and Sexual Violence.” On page 5, department officials slipped in an expansion of the statute to prohibit discrimination on the basis of “gender identity or failure to conform to stereotypical notions of masculinity or femininity.” They did so without the consent of Congress and without even bothering to go through the most basic regulatory rule-making processes that are supposed to govern such changes.

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But how many Americans know that the DOE circumvented the lawmaking process, or even know what the lawmaking process is? How many care? To the Left, this is a matter of social justice, so it’s incumbent on the government to find a way. And if any judge, activist, or public official puts up his hand and objects — even on the basis of process alone — he’s hectored as a bigot. In other words, a person could be in favor of gender-neutral bathroom access, express discomfort that such access was being ensured by unconstitutional means, and still be labeled an enemy of progress.

If changes in Title IX represented the only example of administration lawlessness, the virus could be easily contained. But Obama has made a habit of attempting his “fundamental transformation” or American society through executive fiat. His bureaucrats have reinterpreted not just Title IX but also Title VII to extend sexual-orientation and gender-identity protections to workers from coast to coast. His DOE has cracked down on free speech and violated due-process rights in the name of solving a fake campus-rape crisis. His executive amnesty defies the will of Congress and purports to grant lawful status to millions of illegal immigrants through a transparently fake exercise of “prosecutorial discretion.”

#share#When I speak on college campuses and explain these legal irregularities to progressive students and professors, the response is often a word salad that boils down to “didn’t know and don’t care, because . . . social justice.” They seem oblivious of or indifferent to the notion that their approach virtually rolls out the red carpet for any would-be autocrat who aspires to bend every institution to his will.

As we’ve learned, however, this mindset is hardly confined to the Left. As my colleague Charlie Cooke explains today, millions of voters are furious at Paul Ryan and Mitch McConnell for failing to achieve the impossible, when even the slightest degree of civic knowledge would help them understand the profound limits on congressional power. They’re enraged that Republicans on Capitol Hill have done “nothing” to stop Obama, when in fact they’ve thwarted his ambitions to enact gun control, cap-and-trade, carbon taxes, card check, and ENDA, and to wage a completely misguided war in Syria that would have mainly benefited ISIS and al-Qaeda.

That’s not to say that congressional Republicans have been as effective as they should have been, or that they are by any means beyond reproach. But I’ve changed my mind on the extent of the allegedly “justifiable” anger at the establishment. The more I hear the arguments of the most enraged voters, the more it sounds as if what they mean to say is, “I don’t know how things work, I don’t know what Republicans have stopped, and I don’t really care about either. Just fix everything. NOW.” They’re calling for a strongman. One wonders how many of them realize it.

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This is how you start to lose a democracy. When an unprincipled elite exploits public ignorance to trample the rights of those out of power, it builds resentment. But unless the resentful are informed and aware, they’re vulnerable to exploitation and manipulation by their side’s own “elites” and its demagogues. Thus, here we are, facing the most miserable presidential choice in generations, with two major-party candidates competing for the right to desecrate the Constitution to their own ends.

So don’t roll your eyes at the “bathroom wars” or any of the other countless brush fires stirred up by post-constitutional, lawless leaders left and right. We can’t always choose our battles or our issues, but we must choose whether to resist. And in Illinois, brave families have made their stand. We’ll soon see if justice prevails.

— David French is an attorney, and a staff writer at National Review.