Why I am not a conservative (or a liberal).

I was working on this all week, bit by bit, and it just got way out of hand. So, I decided to make this several parts. This part is - Why I am not a conservative and I will worry about the liberals another day. It was in a large way inspired by Friedrich A. Hayek’s Why I am not a conservative, which was a rather short essay he wrote at the end of his Constitution of Liberty in 1960. It can be found online and is worth reading, although it is a little bit dated. Though he is Hayek and I am just lowly me, I think he wrong - not in his point - but in its importance.

Just as I added "(or a liberal)" to the title of this piece, Hayek could have done so as well. However, he clearly didn’t feel it necessary, as he was much closer aligned to conservatives than to those we call liberals and he called socialists or progressives (the last one having come around again into favor). To make it more even more confusing, when you read Hayek, you must also remember that he doesn’t use “libertarian” to describe himself, although it is the closest fit today. Even though that term already existed, for some reason he didn’t seem to know it when he earlier wrote The Road to Serfdom, his most famous work, and rejected it in this essay for reasons that seem to me more aesthetic, or possibly egotistical, than anything else. Instead, he called libertarians “liberals,” using the English or 19th century meaning, which is nothing like the liberals of today (and he sort of complains that they use the name he wants to use for his group), who are closer ideologically to his use of socialist or progressive (which latter term is often preferred by some liberals nowadays). Then he distinguishes conservatives from conservatism, and, to be frank, I really didn’t understand his distinction. Confused already? No worries, as I will use the terms with which we are all familiar and brackets to make it clearer.

Hayek’s got to the real abstract essence of the conservative/liberal dichotomy. He doesn’t talk about the concrete issues of his day at all there, but almost the underlying sociology or psychology of those ideologies. Mostly, he discusses that conservatives are too resistant to change and that liberals (or progressives or socialists) are too eager for change.

I’ll let him summarize this point himself by abstracting like so: “Conservatism proper is a legitimate, probably necessary, and certainly widespread attitude of opposition to drastic change. . . Let me now state what seems to me the decisive objection to any conservatism which deserves to be called such. It is that by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing. The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments."

If I can take great liberties with Hayek, who took exacting care in everything he wrote, the liberal or progressive moves towards control by the state in response to change, the conservative opposes or too slowly adapts to the change and the libertarian moves towards individual liberty in accordance with the new developments.

On the other hand, he put the task of the libertarian (again, whom he called "liberals") this way: “What the [libertarian] must ask, first of all, is not how fast or how far we should move, but where we should move. In fact, he differs much more from the collectivist radical of today than does the conservative.”

In some senses, His essay is out of date because starting in the 1960s, conservatives began gravitating to a broader adoption of libertarian principals into their ideology (think Barry Goldwater and William Buckley) and nowadays, many conservatives, sure of their (imagined) adherence to original principles or fundamentalism as any religious zealot might be, believe that has always been the case.

But, that history is a side issue I won't expand on here and I'll move along to why I believe he is wrong. I'm certain the question he poses for libertarians is also the questions liberals and conservatives feel they are asking too - deciding where to move (or what to do), and other motivations, like resistance or proclivity for change, would be unconscious or perhaps inherent in the way they tended to think. But, it is almost as if he is suggesting that libertarians are somehow immune to psychological or sociological forces, which, whether you are one or not, is a bit absurd. You can perhaps say that libertarians might be among those who are unconsciously less interested in how fast or slow times are changing, and that is possible, but I don't think it would be anything but a factor in deciding any particular issue. Besides, it is kind of relative to the issue. Take abortion, for example. The status quo now is that some abortion must be legal. Without taking sides on the issue here, conservatives believe progress would be in affirming life values and eradicating abortion. In this case, it is they who are advancing change, and the progressives are resistant. And, a conservative wants to change the law of abortion as fast as possible. You could apply this to other issues - certain civil rights, certain criminal rights, affirmative action, and so on.

And really, what good is a general rule about who moves too fast and who moves too slow, even if it is more true than untrue in the abstract. What really matters is what an individual believes about individual issues. Does the conservative or liberal really care if they are moving too slow/too fast? Of course not. Every political minded person is at heart baby bear - and believes the way they do it is just right.

Let me now gravitate away from Hayek's essay and into my own problems with the two predominant ideologies, in terms of more concrete issues. My great problem with the conservatives is not with matters like the economy, taxation, spending, regulation, affirmative action, civil rights law or some first amendment speech issues, all of which I am at least closer to, if not beyond many conservatives in my approach.  It is their views on religion.

This shouldn't be a surprise because religion is the institution normally the most inherently conservative and dogmatic. In fact, were I in agreement with whoever will be the Republican nominee for 2012 on virtually every issue (not likely), I will have great difficulty voting for him based on his likely position on gays, American Muslims and atheists – especially now that Mitch Daniels has announced he will not be running.

Naturally, I am generalizing, as you must do in discussing politics, and there are conservatives who differ on these issues from the run of the mill conservative. But, the drumbeat from the political leaders and punditry and opinions of most “regular guy” conservatives that I know of or have read, lead me to believe there is a very strong correlation with conservatives and political/religious convictions I cannot abide. I won’t do my usual "partisans are ruining the country" song and dance either (and I know how disappointed everyone must be with that), nor will I take the most extreme conservative position on it I can find and paint the whole group with that one broad brush. I leave that to partisans. But, I want to look at the positions of some of the contenders for the nomination, who are, in fact, not known to be among the furthest right:

I’ll start and spend most of the time on Newt Gingrich because, despite the fact that some conservatives find him too liberal, he is very persuasive to conservatives on political/religious issues. Or perhaps he is the follower (as many candidates are) and his positions on Islam, atheists and gays is typical of what many conservatives believe. For example, he is one of the most outspoken on the make believe threat of Shariah law coming to America. He has gone so far as to want to "ban" Shariah law in America. Now that is interesting, because it would be a fair question to ask if he has ever read the constitution or knows any constitutional law, a subject upon which he claims to be quite familiar. Which of the most featured aspects of Shariah does he think are even possibly constitutional in America? Stoning adulterers? The death penalty for converts from Islam? Cutting the hands off of thieves? Marital rape (of which in the not too distant past some American conservatives did not disapprove). If he thinks these are possible, he must state why they are constitutional. No one among the media asks this question, of course. That’s not the way the media works. But, obviously, he would not be able to provide an answer. As he knows, the threat of Shariah law here is much akin to the yellow peril of yesteryear. Out of the millions of cases each year in America, there are only two cases those engaged in Shariah fear mongering always mention. One was a NJ case where some idiot judge let slide a Muslim who beat his girlfriend because he was just following his culture’s dictates. They very often don’t mention that it was - of course - overturned on appeal. The other case only involved a judge enforcing an agreement between practicing Muslims that they would let the Mosque elders determine their controversy. Enforcing agreements by parties to a religious process has been part of the law in America, certainly since I’ve been practicing law (25 years). It is neither new nor a sop to Shariah. From the very few cases of it I’ve seen in the past, it was Judaic law that was being used. Should we fear Levitical law in America, which also includes stoning for things like an unmarried woman engaging in intercourse? You wouldn’t like that any better than Shariah, as they share many features. And, of course, neither could a court legitimately enforce arbitration with either religion's rules that included such obviously unconstitutional punishment.

During the heyday of the Ground Zero Mosque argument he was deliberately provocative, comparing supporters of the mosque to Nazis. I approved of the mosque (really a cultural center that includes a mosque), and I would love to debate him or those who agree with him on what is more Nazi-like, supporting the first amendment right to free exercise of religion, or the demonizing of a religious group for political advantage? Hmmm? Any takers?

He also lumps together radical Muslims with the apparently dreaded atheist as a threat to America’s religions, despite the fact that last year an extensive Pew survey with a huge sampling found that atheists (lets pretend they are a threat first) made up 1.7 percent of the population, only slightly more than the 1.6 percent which are Muslims. Yet, Gingrich, who sounds delusional to me here, has stated: “I have two grandchildren -- Maggie is 11, Robert is 9. I am convinced that if we do not decisively win the struggle over the nature of America, by the time they're my age they will be in a secular atheist country, potentially one dominated by radical Islamists and with no understanding of what it once meant to be an American." He should read the Pew survey. He’ll feel a lot better. He should also read the constitution.

But, why equate radical Islamicists with atheists at all? Fundamentalist Muslims have no tolerance for atheists. If anything, the Muslim devotion to the concept of one creative being, omnipresent and omniscient cannot be rationally denied (religiously, certainly).

And why fear atheists? Is his faith so shallow that someone can threaten it by saying they don’t believe in God? Does he seriously believe that if an atheist does not believe in God, he is likely to murder a man for his ipod? Or that he will try to ban Christmas, which a poll by a religious research group last year found was celebrated by 55% of atheists? If he believes atheists are a threat to Christians and Jews, who I believe he means when he says Americans, then he really is delusional. Thomas Jefferson, who Gingrich has quoted himself on religious matters, wrote “But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg....”

And, lest we forget gays, Gingrich is against gay marriage to the degree that he found that President Obama's finding DOMA unconstitutional (I agree with Obama, believing it violates Article 4, section 1) was a very dangerous precedent, despite the fact that it is a conservative principle that presidents can do exactly that - find laws unconstitutional, which George Bush frequently did (his father as well). So have other presidents, even going back to Thomas Jefferson (I do not recall if Washington or Adams did, but Adams believed the president should not enforce an unconstitutional law). Gingrich also believes that gays openly serving in the military is destructive to it (despite all other modern industrialized countries seeming to find no problem with it). But, in 1992 he wrote: “"Homosexuals are entitled to the same rights as all Americans" . . . "what goes on in the bedroom is private, and the government should not be in the business of being 'bedroom' police." In 1993 he voted for don’t ask/don’t tell himself, but then reversed course, and desired to go back to the days where gays were simply busted out of the military.

I have no problem with politicians changing their mind (although it is politically dangerous). In fact, I expect and appreciate it. What bothers me about Gingrich is that he doesn’t own up to it, but often has a made up reason for doing so, as he recently did over the Libya invasion and even insurance mandates (2007 op ed) – “Personal responsibility extends to the purchase of health insurance. Citizens should not be able to cheat their neighbors by not buying insurance, particularly when they can afford it, and expect others to pay for their care when they need it.” An “individual mandate,” he added, should be applied “when the larger health-care system has been fundamentally changed” and 2008 in his own book “Real Change”. And, against the bailouts in 2008, he reversed course in a week, saying he supported it, claiming it was now a better bill (only $700 billion – so much better. Oh brother). Just say I changed my mind. It will even go down smoother with your own followers.

But, enough on beating up on Gingrich, which is just too easy. Tim Pawlenty I feel sorry for, as he is desperately trying to whip up some support from the conservative base, but he has done it by jumping on the easy red meat issues. Supporting (or, I guess, not to be opposed to) the Ground Zero Mosque was unpatriotic, he said. Ironically, he had previously set up a Shariah compliant mortgage program (which just really means something to do with interest – Orthodox Jews have also found a legal end round to interest on loans) in Minnesota, and then realizing it was political death in the Republican primaries, canceled it. I’m not even sure if I’m for the program because I don’t know enough about it, but, canceling it for political purposes was a craven act if there ever was one. He came out heavily against the repeal of don’t ask/don’t tell as if had been a repeal of the declaration of war against Germany and Japan (okay, okay, that's hyperbole) and said he would repeal it. He also vetoed a gay marriage bill. He recently said “The Constitution was designed to protect people of faith from government, not to protect government from people of faith.” He should read his James Madison. It was both.

And, the supposed front-runner, particularly with Mike Huckabee out of the picture (I’ve been saying he wouldn't run for many months – I thought it was pretty obvious), Mitt Romney first said there weren’t enough Muslims in America to justify a cabinet position for one, but, then made a pretty quick backtrack, saying he had no ethnic quotas and would treat people based on merit. That’s the right answer. Too bad it wasn’t his first and real one. He’s in a tougher position than the others, being an ethnic minority himself, one disliked by some other Christians. He is against gay marriage (but really just the use of the word) and was in favor of gays in the military, but is now against it – one of his well known flip-flops.

I am quite disappointed that Mitch Daniels has determined not to run as he was by far my favorite of the possible Republican candidates, and though he has some positions I don’t agree with, at least he is generally not the demonizer that Gingrich or some of the others are. He did say that “atheism leads to brutality,” which made he unhappy, but he was talking about the cruelties of communism (I could use centuries of religious extremism to date if I wanted to suggest the opposite) and I am not sure he would not qualify it if questioned closely (as if that ever happens in the media), opposes gay marriage and I believe also the repeal of don’t ask/don’t tell, but also said he had enormous respect for those on the opposite sides of the issue (which would have really hurt him in the Iowa caucuses and the debates). He also does not engage in the mudslinging at Muslim-Americans. He actually is third generation Arab-American himself and on May 4th received an award from the Arab-American Institute for focusing on the economy and avoiding anti-Arab and Muslim invective. That wouldn’t have helped him win the nomination either.

And, aside from the political/religious reasons, conservatives are as subject to all the hypocrisy, tunnel vision and outright flummery of their counterparts on the left. I'm not sure which is worse, the intentional or unintentional aspects of it. It might not matter, as whatever mental processes cloud the minds of partisans, often makes them unaware of just how biased they are being. I will give an example from this week, which I believe was unintentional and happened right before my eyes.

I was speaking with a self-described conservative (and I agree with her designation). She mentioned that she had read that Bobby Kennedy had had many affairs. I said I wouldn’t know, but could she name any women with whom he had affairs? She said Marilyn Monroe, for one, which I have researched a little (yeah, I was just, you know, curious) and it has certainly never been proven to me (not that many haven’t taken a shot at it – also that he had her murdered or murdered her himself). She could not name any others but was emphatic that there had been. She could not state any evidence, except - you know the Kennedy’s - of course he did. I asked her if she believed the accusations that George H. W. Bush had cheated on Barbara. She thought that was ridiculous. I asked if she was aware of the rumors. She was not. Personally, I cannot believe that she had not heard of it at least in the 1988 campaign, because she is politically conscious, but I expect she did not recall because she could not believe it. Of course, I can’t say whether Jennifer Fitzgerald and Bush had a long time affair, although there are a number of still living and credible people who insist they did. You can read about it online, if you like – there is nothing definitive, but there is certainly more to it than with Bobby Kennedy (and, by the way, in case you are wondering, I liked the old fellow). The point, of course, is not whether one or the other story is, but that partisanship makes us believe that negative facts are true about those political figures we don’t like and not believe them about those we do like.

I never mean any of these posts to be comprehensive (however long they may be), and there are other issues which I thoroughly disagree with conservatives in general. One, for example, is criminal law, which I won't go into here deeply, but of which I can't shake the feeling, after studying criminal law cases for over 25 years, that some of their opinions are born not out of constitutional jurisprudence, but more a conviction that those convicted must be punished irrespective of guilt or innocence, because to do otherwise would imperil our system of order and justice - which is more dangerous than punishing some innocent people to them. Possibly it is also in cases a conviction that those convicted of crimes by a jury are almost certainly guilty, and the legal system is not meant to free them on technicalities or legal principals. I admit, this is a pretty broad brush, and I would need to coalesce my thoughts and review many cases before I would feel more certain. It goes against my predilection that the state's high burden to convict (though most often it is easily met - hence all the plea deals) and that the presumption of innocence are among our most precious liberties.

As I said at the beginning - I am not a liberal either, and I will explain why sooner than later - I hope next month - in another exciting installment at deisenberg.blogspot.com, an equal opportunity nudge.