Online Library of Law & Liberty
A Project of Liberty Fund
The public debate in America over access to public restrooms by transgendered people has largely been dominated by vague claims for morality, justice and fairness. The situation was further complicated by the Justice Department’s decision to send a Mafioso-style letter to public school districts to adopt policies allowing transgendered individuals to use bathrooms of their choosing or lose federal funding. It’s a deal they shouldn’t refuse.
“The cause is in my will.”—Julius Caesar, Act II, Scene II
We ought to have known it would come to this. Still, the latest assertion of presidential authority assumes a new and ominous form: the power not merely to assert authority outside the law—which can at least masquerade under the banner of Lockean prerogative—but rather to redefine words and, with them, the institution of law itself.
This episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.In what President Obama called its “thunderbolt” decision on same-sex marriage, the Supreme Court’s Obergefell v. Hodges judgement has put the matter of discrimination at the very top of America’s social agenda.
If there is one certainty in our country, it is that everyone opposes discrimination. But it is difficult to get a precise handle on what constitutes discrimination. While there is a vast literature on the subject, there is surprisingly little scholarly appetite for defining illegal discrimination.
The bitter disputes sparked by Indiana’s version of the “Religious Freedom Restoration Act,” and the controversies that provoked the act, are the latest episode in our ongoing culture war. Its sources are twofold: the moral clash between what we call the “Left” and the “Right,” and the increasing scope of government.
Joseph de Maistre never met men in the abstract. Frenchmen, Italians, yes—but not “Man.” There were no universal principles of government, applicable to all men at all times, only governments suited to the different kinds of people in different countries.
Maistre was right, and to that extent, American conservatives are wrong if they think that their constitution is the perfection of human reason, a light unto the Gentiles. They’re especially wrong since the Constitution isn’t looking too good these days. One can love liberty and one can love America’s Constitution, but one can’t love both together without a thick set of blinders.
