A big, intra-conservative debate has erupted. It is about the prudence and the jurisprudence involved in outlawing drag queen reading hour (“DQRH”) for children at public libraries. Both sides recur to errant precepts, but one side more than the other.
The classical liberals, even the ones who claim personally to oppose the notion of DQRH, take umbrage at the suggestion that any scope of the government—municipal, state, or federal—may outlaw it.
On the other hand, post-liberals assume fatalistically that current American jurisprudence cannot accommodate the banning of DQRH.
…suddenly, it’s fashionable for conservatism’s two poles to presume the foremost project of American Constitutionalism proves ineffective…
Both have forgotten the faded genius of the dualistic American Constitutional regime.
When rightly conceptualized, this regime burnishes both liberty and order at once. Americans of our day did not dream or hallucinate such balance. Yet, suddenly, it’s fashionable for conservatism’s two poles to presume the foremost project of American Constitutionalism proves ineffective when applied to “real world situations” like this. It is not.
In sum, one side assumes all levels of American government can’t and shouldn’t ban DQRH, while the other claims the government can’t yet should. They’re both wrong.
One wonders: with both sides of conservatism abandoning hope in the sensible efficacy of the U.S. Constitution, who needs leftists?
Firstly, the federalism enshrined by the U.S. Constitution, sometimes called imperium in imperio, sets out tasks to be discharged by two distinct levels of government at once: federal and state.
The powers reserved for state government are more capacious than those explicitly given to the federal government, meaning state legislatures are supposed to legislate in moral-ish domains where the Congress simply cannot. This proves the enabling feature for the proposed DQRH ban.
The task of governing issues like a proposed DQRH ban belong precisely in the local sphere.
The task of governing issues like a proposed DQRH ban belong precisely in the local sphere.
Consult Article I, section 8 in the Constitution: this issue—like all “juicy” legislative fields—clearly does not fit within the short, specific list of Congress’s national governing powers. The Constitution lays out an elegant design whereby faraway Congress is deemed “not in the position to make the call” on such issues. State legislatures, by contrast, are.
Since the era beginning at the close of the Civil War, this precept of American life has been largely eclipsed. For the moment, however, the Tenth Amendment hasn’t yet been lined out of the Constitution: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
And as it happens, state government does wield something called the “police power,” accruing to the Tenth Amendment: “the inherent power to exercise reasonable control over persons and property within [state] jurisdiction in the interest of the general security, health, safety, morals, and welfare except where legally prohibited”. Police power avails precisely the protective, state-legislating ability that post-liberals daydream about: salus populi suprema lex esto.
In other words, protecting library-going children lies precisely within the purview of municipal and state government.
The most famous Constitutionally upheld challenge to the usage of state police power is Jacobsen v. Massachusetts, wherein the U.S. Supreme Court upheld the authority of states to enforce compulsory vaccination laws, ruling that “a community has the right to protect itself from both disease and military invasion”.
Secondly, as any first-year law student knows, American constitutionalism involves both substance and procedure. For example, the duo of due process clauses in the U.S. Constitution—the 5th and 14th Amendments—adumbrate both procedural due process and substantive due process.
The former requires government actors to follow procedures before depriving a person of life, liberty, or property; the latter is the stronger principle of protection, going above and beyond procedural safeguards, against governmental interference with certain fundamental rights (mainly life, liberty, and property).
Local governments should reasonably be expected to outlaw practices such as DQRH.
Imperfectly, the U.S. Constitution has been able to approximate a kind of balance in honoring both types of due process.
Contrary to relativistic democracy—which honors procedure alone—the regime of republicanism is built upon this dual commitment to unchanging principles and fluctuating procedures.
One of those fixtures of good government dictates that the legal regime with the power to do so (i.e. local government) must throw its best resources into the separation of the innocent and the corrupt. Libraries, creatures of the state, are run locally. Local governments should reasonably be expected to outlaw practices such as DQRH.
The two “novel” points made above, insofar as they’re continually sidestepped by both post-liberals and classical liberals, insinuate a conservative lunacy profounder than even a Constitutional one. This stems from a fundamental oversight in our founding, which can yet be remedied.
I wrote about this oversight once before on this site. It is the false notion, embraced by America’s original classical liberals and post-liberals, that the “neo-Whig,” neo-Lockean American regime as founded in 1788, cannot without alteration integrate Christian principles with current Constitutional methods. This is nonsense.
America was founded upon Aristotle and Thomas Aquinas (whose philosophy could explain the natural law), but in the name of Locke and the Whigs (whose philosophy could not). This is crypto-Catholicism. And it’s why the country is currently failing, yet salvageable.
Classical liberals have always proffered not true (Catholic) natural law but instead Lockean, Reformation-Enlightenment copies of natural law’s “goodies”: liberty, virtue, subsidiarity, natural right, and legal justice. These proved to be low-fidelity facsimiles of the genuine article.
John Locke’s philosophy actually rejects rather than upholds natural law…
John Locke’s philosophy actually rejects rather than upholds natural law, which is why Locke’s versions of, say, liberty or subsidiarity proved historically delicate. The founders hated, yet needed, the Catholic intellectual tradition underlying Locke in the making of the republic. So they plagiarized it.
Imagine admiring and then feeling forced to copy your worst enemy’s strengths—especially after you had loudly and publicly derided those strengths.
Post-liberals, comprised mostly by faithful academic Catholics failing to understand how lastingly crypto-Catholic the American Constitution was and is, present a procedurally deficient vision of their own “integralism” comprising a Christian state.
They understand substance well, but not procedure. They’ll never tell you how this brand new system will work out in post-America. They’ll also never tell you exactly why they think a new system is necessary in the first place. They’ll only repeat over and over that a new system is needed.
In short, classical liberals are good at retaining hope in the present Constitutional regime, but awful at dealing realistically in survival’s requirements (e.g.: pushing back aggressively against radicals on substantive Christian issues like banning DQRH).
On the other side, post-liberals are surprisingly proficient at realizing and announcing that America requires something like a civic announcement of the Catholic natural law, but shockingly bad at identifying how and why this needs to happen outside of our current structures. Indeed, it does not.
Unlike dialogue with the anti-Christian socialists on the left, the two sides of conservatism can actually dialogue fruitfully with one another—which is my big project, here and in my book Catholic Republic. Each side has something to offer and something to concede. It’s a circle of trust.
The current regime can ban DQRH. But don’t get me wrong when I write that our regime is “surprisingly adequate”: the republic needs to be recharged by drastic means—perhaps as drastic as secessionist movements which President Thomas Jefferson deliberated as the possible means of achieving a stabler subsidiarity in 1803:
…what are we but a crypto-Catholic republic led by papist-haters, whose three federal branches have spent most of the Republic’s life working against our natural rights, subsidiarity, and virtue ethics?
The future inhabitants of the Atlantic & Mississippi States will be our sons. We leave them in distinct but bordering establishments. We think we see their happiness in their union, & we wish it. Events may prove it otherwise; and if they see their interest in separation, why should we take side with our Atlantic rather than our Mississippi descendants? It is the elder and the younger son differing. God bless them both, & keep them in union, if it be for their good, but separate them, if it be better.
Clearly, as a kind of secessionist, I cannot be accused by post-liberals of underselling the need for action, simply on account of my view of Americanism as dependent upon Catholicism.
Doubtless, our natural law identity in America is befuddling: what are we but a crypto-Catholic republic led by papist-haters, whose three federal branches have spent most of the Republic’s life working against our natural rights, subsidiarity, and virtue ethics?
One only hopes that the partisans of conservatism—ironically the students of variant forms of liberalism—see fit to preserve what items of Americana deserve to be preserved, and excise those items needing to be excised.
At the very least, this means taking pride in the fact that our system allows the banning of DQRH.
Timothy Gordon, J.D., Ph.L., M.A., studied philosophy in Europe, taught it at Southern Californian community colleges, then went on to law school. He holds degrees in literature, history, philosophy, and law. He writes and teaches philosophy and theology in Central California.