Cigarettes, same-sex marriage, and Vladimir Putin: Reflections on Carl Schmitt.

Author:Baumgarth, William P.

I enjoy old movies, especially detective and mystery movies from the 1940s and 1950s: the actors are well dressed, the scripts are well written (conceded: not quite P. G. Wodehouse) and clearly, effectively delivered, and there is always a discernible plot. The most startling event, I believe, comparing life depicted then with how it is now is the cultural transformation that has occurred in that passage of time, not only or chiefly in the cinema. In these dramas, everybody of adult years is enjoying a cigarette, and the sexuality is, well, conventional. Now, were it not for my having been born in the mid-1940s, I well might have believed that the world depicted in these movies was the work of pure imagination, an alternative universe, say, from the point of view of those who are characterized as villains and heroes. Advocates of heterosexual marriage as normal, in the strict sense of the word, do not appear to be anything but normal from the 1950s perspective, and smokers are not portrayed as sociopaths. Yesterday's heroes, or at least good citizens, are today's villains. (1)

I believe that I have personally lived through what Friedrich Nietzsche terms a "transvaluation of values" (1966, 195), and I am still at somewhat of a loss as to how to explain this transformation. It is not simply a question of contemporary toleration versus yesteryear's moral rigidity. My fellow progressive New Yorkers and their Hollywood templates (and not only them) are anything but tolerant of what today's liberals would judge as morally deviant, such as religious disapproval of same-sex marriage or smoking tobacco anywhere. The contemporary political progressive's intolerance toward the traditionalist or libertarian, as opposed to the tolerance exemplified by John Stuart Mill's classical liberalism, was foreshadowed by Herbert Marcuse's attack on "repressive tolerance" in 1965 (in Moore, Paul, and Marcuse 1965). At the beginning of the classical liberal era, Marcuse said, tolerance played a vital role in the attack on crown and altar. Now, however, it merely serves as a defense of the oppressive status quo. The proper stance is, then, Marcuse argued, intolerance of those seen espousing militarism or those opposing the extension of state welfare measures. Marcuse's own sense of correctness meant a silence on his part of how much of his own thinking, especially as expressed in Eros and Civilization (1966), was inspired by Martin Heidegger.

Under former three-term (twelve-year) New York City mayor Michael Bloomberg, many other formerly private concerns, such as the amount of salt consumed in a restaurant or the purchase of large soft drinks at a convenience store or, most recently, tanning salons began to be viewed as matters of public note if not public moral condemnation (see New York Times 2012, 2013b; New York Post 2013). Puritanism is by no means dead and not only in New England.

The advocates of traditional mores and morals are to an incredible degree demonized. And, just as importantly, the new moral orthodoxy does not limit itself to correcting deviant behavior but attempts to detect and uproot anything that even appears as unorthodox thinking. The proponents of the new morality are not satisfied with a display of mere toleration for their novel lifestyles. On the contrary, they seem to demand, in an "in your face" way, the acknowledgment of the superiority of the new ways in comparison to now old-fashioned ethical beliefs. (2) The guardians of the new ethos strongly suggest that incorrect thoughts inevitably lead to verbal articulation (maybe) and then to action (far less inevitable) that indicates a desire to discriminate: the very essence of the hate crime. Violence, actual crime, should and can be nipped at the bud. But we must also enforce the codes governing correct speech, these guardians proclaim, or else the slippery slope invites resurgent National Socialism.

Classical liberal thought regarding crime--as, for instance, articulated by John Locke in chapter 2 of the Second Treatise of Government--centers on the injury done by the perpetrator of a crime to the injured. There is a difference between intention and motivation. My intention in acting is what I view as the object of such action, those changes in the world I hope to effect, the "what" of my envisioned action. My motivation is the "why" I so intend to do something. In terms of crime, certainly the perpetrator must have a conscious intent to do some mischief to an innocent second party, the actor must set out to inflict some nonretaliatory, noncompensatory injury on some other person. For instance, I decide to kill Brenda Starr, who formerly has not threatened me in any way. The intention here is murder. That I decide to do so to express my hatred of redheads, I contend, neither excuses nor magnifies the magnitude of the offense.

But contemporary practice seems more concerned with what motivates the mischief maker than with the willful objective damage done. The philosophy behind the concept of "hate crime" alters the notion of crime from willful nonretaliatory abridgment of another's rights, life, liberty, and property to any behavior deemed by the new orthodoxy to involve some sort of discrimination. Beyond that, it links the essence of crime with an emotion: not simple hate but ethnic, sexual, or racial hatred. Crime, as such, is still crime, however, regardless of what motivates the criminal. Would Iago's hurtful plotting against Othello be more heinous if rooted, say, in ethnic hatred rather than in personal animosity or jealousy? And although the presence of hate neither adds to nor detracts from the severity of crime (no more than, say, love would), still the thought crime, even when verbally uttered, has become the contemporary secular equivalent of the "sin against the Holy Spirit" (Mark 3:29): it cannot and will not be forgiven.

But what has brought about the ascendency of this new orthodoxy? I doubt that it is the result of some sudden moral enlightenment. The cigarette issue and Mayor Bloomberg's obsession with salt and soft drinks are related to concerns, in general, about health at a time when the state is subsidizing health-care costs. And, to be sure, if concern about health is what motivates the new policies, then pity' rather than moral condemnation, public humiliation, and open contempt might be expected as the public stance toward nonpenitent smokers. Former smokers, now converted to the true faith, especially show evangelical zeal in their castigation of one-time comrades. In stating that the state is increasingly more involved in issues involving the health of its subjects, I am not ascribing any degree of genuine concern to the political class (caste?). Maybe the political class, epitomized by New York's former mayor Michael Bloomberg, is simply basking in its imagined intellectual superiority to the rest of us: it knows better than we do what is in our interest. (3) The mayor wanted to go so far as to hide cigarettes behind the counter in convenience stores. Smokers are apparently too stupid to know the cigarettes are there and to ask for them. More likely, because the taxpayers (if we forget for a moment about the Federal Reserve) are the main source for financing its projects, die political class, like all reasonable shepherds, is most solicitous for its flock's well-being. But what has any health concern got to do with same-sex marriage?

The moral revolution I have lived through cannot be attributed solely or even primarily to state action. The media and the educational system seem to have been the instruments, if not pioneers, in this "transvaluation of values." The prime movers are the intellectuals, the thinking part of the political class, rather than the politicians, who for the most part seem to have no articulated political vision and hardly count as thinkers. The politicians, of course, are out for votes, but that, I think, usually means catering to existing values, not changing the moral landscape. Bloomberg's crusade against soft drinks and salt is, I believe, an exception. Regarding same-sex marriage, the new morality is at odds with traditional religious values, and the goal of public policy might then be the elimination of competitors to the state in the formation of the individual conscience. This would also entail an assault on the traditional family, and, indeed, the state has trumped the family in issues such as sex education. Many religious denominations, however, now are as eager to embrace the new sexual code as previously they were eager to espouse the older morality. Those sticking to the old paradigm are stigmatized by the polemical characterization that they are "fundamentalist."

Why look, anyway, for any cohesiveness in public policy? F. A. Hayek argued, initially in The Road to Serfdom (1944) and later in Law, Legislation, and Liberty (1973), that any attempt to please most voters by mixing the aims of planning with the procedures of the market would result in policy that almost everyone would find undesirable. What we are witnessing may be an illustration of such incoherence: the attempt to serve both the values of freedom, including the right to freely speak your mind and even to discriminate, and the values of those wishing a life free from bias, discrimination, and verbal disparagement. Hayek warned that the tension between planning and the market might generate ever new demands from the planners. Just so, the tension between freedom--say, of speech--and the desire to eliminate all forms of discrimination might generate more restrictions on...

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