Cakes, Clerks, & the Precarious Rule of Law

By Julian Dunraven, J.D. M.P.A.

Recently, one of my Constitutional Law students asked me to distinguish between the case of the Christian cake bakers judicially ordered to bake a cake for a gay wedding against their will, and the case of Kim Davis, acounty clerk in Kentucky currently in jail for refusing a judicial order to begin granting gay marriage licenses.  My student already had an inkling that the principles underlying these two cases were quite different, and thus was unsurprised to discover that although I have great sympathy for the bakers, I have none for Ms. Davis, and believe she is exactly where she belongs. 

On first glance, these two cases do appear to be similar.  Both involve deeply pious individuals who belong to particular sects of Christianity which happen to teach that same-sex marriage is sinful.  Due to this belief, both the bakers and the clerk sought to abstain from any type of participation in same-sex marriages through their professional work.  Both were also thwarted by the courts.  However, it is the difference between them that really matters:  while the bakers were private citizens operating their own private business, the clerk is a publicly elected official operating a government office.  

In the case of the bakers, as private citizens, they have a property interest in their labor and products.  While government has a legitimate interest in ensuring they fulfil their contracts without fraud, when the government starts telling them who they must take as clients, even if they do not wish to do so, the government begins to impose a type of slavery, however minor it may be.  The Constitution’s Equal Protection and Due Process Clauses were never intended to prevent private citizens from discriminating as they saw fit; they were designed to ensure government did not do so, and treated all its citizens equally under the law.  The right of expressive association (and disassociation) contained in the jurisprudence of the First Amendment further supports this idea. 

Things changed during the Civil Rights Movement.  Then, the U.S. faced the loathsome problem of racism.  Congress tried to address the issue through the Civil Rights Act and other remedial statutes to forcibly eradicate such discrimination—in both the public and private spheres.  Knowing that this noble endeavor would fail under traditional readings of the Constitution (at least in the private sector), the Court supported the effort by taking an astonishingly expansive view of the Commerce Clause of the Constitution.  In short, the Supreme Court declared that, if you were engaged in a business that somewhere, somehow, used a part or ingredient that had been shipped in interstate commerce before it became your final product, then the government could regulate you as engaging in interstate commerce.  In other words, if you bake cakes in Oregon, but use flour from wheat which was grown in Nebraska, then you have engaged in interstate commerce.  That rather all-encompassing rationale allowed the government to carry out a variety of anti-discrimination efforts, not just in the public sector, but in private business as well.  

Of course, with that sort of rationale, one wonders if there is anything the government cannot regulate.  For many years, the answer was that there was nothing the government could not reach.  It is only in the last few years the Supreme Court has recognized that it may have built a bridge too far, and begun to scale back the scope of its Commerce Clause interpretation.  After all, today it may not be needed.  Any business that openly discriminated on the basis of race, gender, or even sexual preference would quickly be boycotted and driven out of business.  The market might have been seen as too slow for the days of the Civil Rights Movement, but our various media forms allow it to act quite swiftly today, and it has shown a distinct distaste for intolerance.

   

Allowing the market to function on its own would be the best way to deal with the bakers.  It would allow them their fundamental freedom of association and expression, as well as protect their interest in their own labor and property.  It would also allow others to freely decide whether to frequent that shop.  If enough people did not like buying cakes from bigots, they would go out of business with no help from the law.  Unfortunately, our legal system has not returned to such a free market solution.  The courts are still largely using the interpretation of the Commerce Clause established during the Civil Rights Movement to navigate anti-discrimination legislation.  As a result, we get a situation in which private bakers find their fundamental freedoms oppressed by the very courts charged with protecting them.  Those courts also find themselves in the untenable position of making absurd balancing tests between someone’s fundamental freedoms on the one hand, and the government’s interest in obliterating invidious discrimination on the other.  It is unsurprising that individual freedoms rarely weigh more on such inappropriately weighted scales. 

So what do we do?  Well, the easiest solution is to appoint more judges who have greater respect for private property and labor, and are willing to restore the Commerce Clause to its original limited purpose of eliminating interstate tariffs and shipping requirements.  Although it would be more difficult, we could also narrow the scope of the Commerce Clause with a constitutional amendment, which would have the advantage of being far more lasting.  Until then, though, under our Constitution, as Justice Marshall stated, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v Madison 5 U.S. 137, 177 (1803).  It may take quite a while to overcome the precedents already set.  What we cannot do, though, is discard the Constitution and the Rule of Law itself.  Yet, that is the very approach Kim Davis is advocating

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Kim Davis is an elected clerk for Rowan County, Kentucky.  Like the bakers, she is religiously opposed to the idea of same-sex marriage.  Thus, as County Clerk, she has refused to grant marriage licenses to same-sex couples.   She was sued, and asked the courts to allow her an exemption from the duty to issue such licenses because of her religious beliefs.  She lost: at the district level, on appeal, and before the U.S. Supreme Court (which refused her request without comment).  Now, a federal judge has jailed her for continually refusing to comply with his order to issue the licenses.  She remains in a cell.

One of my most honorable friends recently described Ms. Davis as a hero of conscience and integrity, a crusader for religious freedom.  This is an easy mistake to make.  Americans love an underdog, and staying true to one’s conscious while facing the entire weight of the American Judicial system is a hard image to resist.  However, it is a false image.  

Ms. Davis is not a private citizen.  She is a publicly elected executive charged with carrying out the functions of government.  Unlike private business, the Equal Protection and Due Process Clauses of the Constitution were aimed squarely at governmental officials.  The government does not get to choose which citizens it will represent and serve, and which it will ignore and deny; the government must treat everyone equally under the Law.  

According to her attorney, Ms. Davis has proposed severalalternatives.  These include having the chief executive of the county, or perhaps a state official issue the licenses.  Alternatively, she has proposed removing her name from licenses issued to same-sex couples.  These, solutions, however, are untenable.  Having some other office grant same-sex marriage licenses amounts to abdicating her duties as a county clerk, as well as imposing an additional hardship on same-sex couples which different-sex couples do not have to endure.  It also adds a disdainful stigma to same-sex licenses, which would be massively amplified by also removing the county clerk’s name from the documents.  This sort of treatment is reminiscent of the separate and not-so-equal practices of the reconstruction era, and stand as flagrant violations of the Equal Protection Clause.

Ms. Davis claims to understand all this, but maintains that, because of her deeply held religious beliefs, she should be granted an exception to compliance.  Were she a private citizen, I would be happy to agree with her.  She is not a private citizen, though; she is a government official.  The First Amendment does not just grant individuals the free exercise of religion; it also prevents government from establishing any particular religion in law.  Yet, that is precisely what Ms. Davis is attempting to do.  

Ms. Davis did at least one thing correctly in making her argument in court, though.  As an elected official, she certainly had an interest in ensuring that her principles, which she was presumably elected for, were at least zealously defended.  But she lost.  Now, if Ms. Davis believes that the law her position operates under has become so onerous that she can no longer perform her required duties without violating her conscious, then she should resign.  Honorable resignation in the face of unethical behavior is, in fact, a recognized duty for many professions, including law.  As a private citizen, she would then be free to work to change the law or amend the Constitution.  Instead, she took the dishonorable approach and rebelled against it.

Unhappy that the courts ruled against her, Ms. Davis decided she did not need to perform the duties required by her executive position.  She went on to appoint herself a legislature of one, and demand legal changes to how marriage licenses are issued that the state has not seen fit to alter.  She has also placed her own interpretations of the law above that of the entire U.S. judiciary by blatantly refusing to comply with the judgement of the courts.  In doing all this, she has not only violated the First, Fifth, and Fourteenth Amendments to the Constitution, she is rebelling against the very framework of the Constitution itself and declaring her own whim to be above the Law.

The U.S. is a nation of Laws and not of Men.  We are governed through our rules and procedures, and not ruled by the arbitrary whim of individuals.  That is a precarious system, though, and requires constant vigilance to maintain.  None of us get everything we want out of it.  Elections and laws pass with winners and losers on both sides.  Yet, even in loss we believe in our Republic and its Constitutional system.  That is, in fact, what defines being an ‘American,’ for we are a people united, not by ethnic, cultural, or even national background—but by principles—specifically those principles embodied in our Constitution.  We expect an election, a legislative vote, or a court decision to go badly from time to time, and we work toward changing the next one.  Such disputes are not huge threats, but part of our democratic way of life.  When one of our own officials, however, chooses to rebel against the Rule of Law itself, they represent a much bigger threat than a single court decision with which we disagree.  They threaten the very heart of the Republic.

For this reason, I cannot applaud Kim Davis in any way.  Her audacious sense of entitlement to her position baffles me.  Perhaps it is because she took over from her mother and, over some decades, began to regard it as an inherited peerage rather as a civil service.  I cannot know her thoughts.  I do know, however, that she has set herself up, not as a defender of our Constitution and Rule of Law, but as its enemy in open rebellion.  For such traitors to the soul of our Republic, I can have nothing but utter contempt.

Legal Marriage Put Simply

By Julian Dunraven, J.D., M.P.A.

Yesterday, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges (the gay marriage case).  This has, predictably, provoked almost everyone to begin shouting opinions as to the meaning of marriage at one another and, unsurprisingly, each opinion is different.  The Supreme Court will not be deciding this case based on any particular view of marriage, however, but upon the underlying legal issues involved. Let me see if I can dispel some of the confusion about this case, by clarifying those issues.  

First, marriage is three things: it is a sacrament bestowed in various religious traditions; it is a contractual agreement between the married parties; and it is a bundle of rights granted by the state.  The sacramental aspect of marriage is defined entirely by each religion, and is not in dispute.  Under the 1^st Amendment to the U.S. Constitution, the government has no role in this, and never will.  Jewish rabbis cannot be forced to perform Muslim weddings, and Catholic priests cannot be forced to perform gay weddings.  Period.  That is fundamental religious freedom.

The second aspect of marriage, the contract, is more complex, but is also undisputed.  Talk to any ten married couples, and you will get ten different ideas about what marriage is, means, and requires—and they will all be correct.  For better or worse, each couple decides for themselves what their marriage will require of each party.  Sometimes, that arrangement is explicitly stated in a pre or post nuptial agreement; sometimes it is developed organically over time through consensus.  In any case, this is not going to change either, and is not in dispute.

Those two aspects of marriage fully encompass the entire marriage concept to most people.  Yet, it is the third aspect of marriage, the bundle of rights granted by the state, that causes all the legal fuss.  There are several thousand rights involved in the marriage bundle, ranging from medical care and treatment to death and social security benefits.  While the assortment of rights in the bundle are numerous and complex, the issues involving the marriage bundle itself are not terribly difficult to grasp.

The first big legal question is why the Supreme Court should decide this issue, and not a more democratic process.  That is simple: we are not a democracy; we are a constitutional republic.  Under a democracy, the majority will always rules.  Thus, it is nothing more than legitimated mob rule.  Its shortcomings are revealed most starkly in the democracy of ancient Athens, which executed Socrates, perhaps the greatest thinker in history, merely for making the majority uncomfortable.  In the U.S., we framed the Constitution precisely to prevent such tyranny of the majority, and to guarantee our rights and liberties, many of which are specified within it.  A right is absolute, and is not subject to majority rule.  Under our constitutional system, it is the judicial branch, with the Supreme Court at its head, that is most accessible to individuals, and thus serves as the primary guardian of our rights. 

In this case, the rights the Supreme Court must consider stem primarily from the 14^th Amendment to the U.S. Constitution.  This is the amendment that guarantees that neither the states nor federal government can deprive any person of life, liberty, or property without due process of law.  It also guarantees that every person will enjoy equal protection of the laws.  At the very least, if any government passes a law or regulation that impacts these rights or liberties, it must have a rational basis for doing so.  That means that the law must make logical sense, and achieve a legitimate purpose.  

So is marriage a right?  Absolutely.  In fact, the Supreme Court has ruled repeatedly that it is a fundamental right, included in the concept of “liberty,” the amendment mentions.  The constitution does not mention it more specifically because the Bill of Rights was never intended to be exhaustive (many founders thought it was unnecessary to include at all), and the founders would have found the idea of specifying a right to marry to be absurd, as it is so fundamental to being human. 

That is the easy part.  While the concept of marriage is irrevocably enshrined in judicial precedent, its legal expression has changed considerably over time.  Long ago, marriage granted a property interest to the husband over his wife and children as an economic unit.  The wife’s legal identity was entirely subsumed beneath her husband, and it was not always consensual.  Of course, this allowed for marital rape.  Interracial marriages were not permitted, nor were marriages of the handicapped.  Both were considered criminal offenses. At times, interfaith marriages were also prohibited.  Those unfortunate enough to be sterile might find their marriages annulled.  All of this has changed.

Today, a legal marriage consists of a consensual and legally equal union between two people of any ethnicity or faith, whom may or may not be sterile, may or may not have children—or even intend to, may or may not cohabitate, may or may not share resources, may or may not be sexually intimate, and may or may not even like one another but, for whatever reason, choose to be married anyway.  

Enter the Equal Protection Clause.  Given the rather vague legal standard for modern marriages, the Supreme Court must decide whether there is even any rational basis for restricting the modern institution of marriage to a man and a woman, thus excluding all same sex partners who wish to participate equally in the institution.  This was the main challenge the Justices put to the opponents of gay marriage. 

In answer, opponents of gay marriage generally cite two reasons for preserving the definition of marriage as limited to a man and a woman.  The first is that it adheres to long tradition, and the second is that it helps foster what the state sees as an idea setting for childrearing.  Both of these justifications were offered to the Court.

Tradition is the weakest of the two arguments.  To argue that marriage has existed for countless millennia unchanged, and has always been between a man and a woman across every culture and civilization is highly misleading.  Two-spirited people in some Native American nations wed either sex.  Many other cultures throughout time had established same sex relationships that carried legal privileges and duties that today would look very similar to modern marriages. The same sex relations of ancient Greece and Rome are especially relevant.  En balance, many marriages between men and women in past ages were conducted according to rules and legal standards we would not recognize as marriage today, and might well find abhorrent.  Several such instances are listed above.  Finally, tradition carries no weight just because it is old.  It also has to be good.  Slavery is perhaps one of the oldest and most culturally universal traditions on earth.  However, it is evil, and was thus abolished in this country.  Thus, the argument for tradition, by itself, cannot stand, and indeed the Justices expressed extreme skepticism for it.  

In answer, the states attempting to preserve their traditional definitions of marriage offered the justification that marriage between a man and a woman serves to honor and encourage an ideal procreative bond between parents and their biological children.  Here too, though, they encountered great skepticism.  States allow marriages to dissolve in divorce proceedings, even when children are involved.  Many women, whether single or in lesbian relationships, undergo artificial insemination with state sanction.  States further permit single parent adoptions, as well as gay adoptions.  States also permit marriages for sterile couples, couples past the age of childbearing, and couples where one party may be in prison, and is incapable of either consummating the marriage, or even of adopting children.  It is exceptionally difficult to see where the interests of the marital children in a stable family unit diverge from the interests of the non-marital children households with similarly stable--but gay-- families, or even in single parent homes.  It is equally difficult to see how those married couples incapable of bearing children or adopting them advance that supposed interest.  Mostly, it seems an irrational distinction.  

Once one eliminates tradition and child rearing as sufficient justifications for excluding same sex couples from the legal institution of marriage, only two explanations remain, both of which are legally invalid.  The first is animus, or disapproval of same sex relationships and the belief that they should not receive the same honor or sanction as heterosexual relationships.  While everyone is free to take moral positions on any issue, creating separate legal statuses for a disapproved class of people violates the equal protection clause, and is thus unconstitutional.  

The second remaining objection grows out of conceptions of marriage rooted in its sacramental aspect for many religions, or  its contractual aspects in many personal preferences, where the idea of a same sex union may have no place.  These are important aspects of marriage, certainly, but they are not legally significant, nor would they be impacted by any legal ruling.  They remain firmly within the domain of personal religious belief, protected by the 1^st Amendment, but also prevented by that amendment from becoming universal legal standards.  

These deficiencies in the arguments of those states attempting to preserve the definition of marriage as exclusively between a man and woman are why every federal court save one has ruled in favor of gay marriage.  It is extraordinarily difficult to find a rational basis for the exclusion, given our society’s nebulous definition of marriage and rather open standards for adoption and child rearing.  Many have suggested that the government get out of the marriage business entirely and leave the concept to churches and individuals.  That would probably be the most principled solution.  However, so many legal rights and structures are tied up in the bundle we call legal marriage, that our societal structures would not tolerate a complete state withdrawal from the concept—nor is that an option the Court could take in this case.  As a result, it looks quite likely that the Court will rule in favor of extending the fundamental right of marriage to same sex couples, not because they want to change the definition or meaning of marriage, but because they cannot find a logical reason to prevent the changes we have already made from applying to same sex couples too.     

The Purpose of Higher Education and the Myth of Job Training

By Julian Dunraven, J.D., M.P.A.   

If you ask almost anyone why they would go to college, the answer is likely to be that they value the better career options they believe going to college offers.  They would be right to say so.  Studies consistently show that those with college educations tend to earn more money over a lifetime than those without college education.  Unfortunately, this seems to reinforce the widespread and erroneous belief that college is or should be job training.  

 

These days, any new college applicant who announces a major in the Arts—or even Sciences—will inevitably face endless fretting from family and friends over what to do with such a study, followed by suggestions for something more “practical,” like Engineering or Business instead.  The assumption is that one’s field of study should translate directly into career utility.  Even some otherwise esteemed professors, like Dr. Bryan Caplan of George Mason University’s Economics Department, now lament that the faculties of higher education are woefully bereft of “real world experience,” and might serve the career training function better if they were forced to get real jobs themselves.  

Caplan points out that academics, insulated within the Ivory Tower of universities, provide incredibly poor training in skill acquisition through their lectures.  He further insists that the format of academia (going to class at will, turning in a few papers, and taking a final exam) is nearly useless for teaching good work habits.  He also reminds us of enormous piles of evidence demonstrating that professors and classroom lectures often do not teach people how to think so much as how to parrot the professor.  Instead, he argues that higher education merely serves a signaling function to employers, something I would call a gauntlet proving, that a prospective employee knows how to put in the required work and follow directives.  

For a student merely looking to find employment, what one studies at university is almost irrelevant.   In the end, nothing really matters save that you have the diploma that proves you ran the gauntlet while others did not or could not.  A student so tested by a university, will then be hired by an employer. Actual job skills will be learned on the job through experience.  That signaling function, as Caplan points out, does indeed mean that greater career success is a consequence of higher education, but it is not the purpose or intent of higher education itself, and does not mean professors should reorient themselves to that function.  While Caplan is quite correct that higher education provides poor career training, he entirely misses the point of higher education in general—as do most people.

It is true that most people are unlikely to ever directly use courses in History, Philosophy, or Anthropology during their careers.  But they were never intended to be so utilitarian.  Indeed, the notion of college as career training is quite modern, and grows out of the same Progressive movement that first shaped public education into the K-12 system originally designed to train factory workers.  Higher Education was intended for a different type of social engineering.    

College is supposed to help those charged with governing society, whether they are professionals, business executives, government agents—or simple citizens. It should provide an understanding of the government, the culture, its social bonds and markets, and its exalted principles. It should give these community leaders the tools to understand the problems people have faced before, are facing, and will face, as well as provide ideas for how to solve some of those problems through a breadth of understanding and cross disciplinary research. To do this, however, requires that colleges actually believe in something, and that professors actually profess truth. Our modern universities largely reject universal principles or truth, and discount the idea of universal ethics, instead promoting a banal multiplicity of perspectives—to no apparent end. Thus, its moral worth eliminated, higher education is left with the meager utility for job training. This is a tragedy.  

What use is studying Rome, the British Empire, and the American experiment to the mere job of a modern business executive who finds it much more useful to study marketing? We know the answer to that only when we see the ignorance and apathy of the people faced with the collusion of government and social media companies to accommodate universal surveillance, not just in China, but here in the U.S.A. Does this violate the Constitution and basic human freedom?  Certainly. But what earthly use is the Constitution, anyway, when we know the utility of safety and of government favor? 

This is not training for mere careers; it is training for being moral leaders among the citizenry.  It is the necessary statesmanship required for the survival of any republic.  Such education is necessary, not to teach individuals how to function in business, but what vigilance they need to keep over their society and government to do business at all.  

Some might object that exploring such concepts is best done by the professions, where knowledge specialization is vital, and it is easy to see the connection between curriculum and the associated career paths.  Those who go onto become professors and researchers, attorneys, or physicians quite reasonably engage in esoteric study, but the rest of society should focus on being productive.   Once we isolate such knowledge though, who would ever heed whatever wisdom it could offer?  If the intellectual elite only spoke to one another, what real influence would they have on society?  They rely upon undergraduates to study their ideas, and bring them out into the citizenry.  These students then disseminate their knowledge to their associates, providing an ethical framework for their businesses, perspective on the role of government to friends and family, and a better understanding of the framework of society itself, by which we protect our fundamental principles.  

I happen to be one of those professors Caplan so admires; beyond my academic career, I have a “real” job as a business attorney.  I am sure this experience adds some welcome flavor to my classes. Yet, I did not start teaching because I thought people needed better job training.  Indeed, the most job training I have ever seen anyone take from college is a thorough knowledge base; they invariably get their actual skills in employment.  Rather, I began teaching because I noticed such a profound lack of ethics and moral reasoning in the workforce, as well as complete ignorance of the history and governing principles that afforded them the opportunity to pedal their labor at all.  These ideas do not develop from skill training, but from those anti-utilitarian subjects like History, Philosophy, and Political Science.  This is the sort of thing managers and executives—college graduates— are supposed to be instilling into their staff and corporate culture, but it is largely absent.

I am the first to admit, however, that colleges are failing in this vital duty.  Our bizarre notion of higher education as job training has resulted in an equally erroneous idea that everyone should thus go to college.  Such universalism destroys the ability of colleges to convey the few skills they should be instilling (such as research, analytics, writing, communication, etc.) as they are forced to lower standards to matriculate the masses.  Moreover, fueled by an endless supply of printed student loan money ready to fund anyone who wants to attend, the colleges no longer have to offer courses of substance or principle at all, but are free to indulge in whimsical nonsense.  Indeed, for most students, who care nothing for education, and have no incentive to care about the value of their tuition, but merely seek to earn their diplomas to enter the workforce, the absurd classes without accountability are the most appealing. 

This is all, of course, profoundly wrong.  Even so, the solution is not to capitulate, and call for professors to be better job trainers.  Rather, we might think of cutting off the free flowing federal student loans.  It would limit the population to those who would serve as true opinion leaders, those who truly valued education enough to put effort into getting there. More, it would restore accountability to the universities, lower the bloated tuition, and vastly improve standards all in one blow.

I agree that higher education has devolved into wretchedness.  I agree that it is now provides such limited utility that it is reduced to a signaling function for employment. What breaks my heart is that its own denizens have now come to see job training as its purpose!  What else is there, they ask? Only the very body and soul of human liberty.

Protesting, Police, and the Polis of Aristotle

By Julian Dunraven, J.D., M.P.A.

Really, I just wanted to discuss Aristotle; instead I attended a protest.  It certainly was not my idea; my students requested it.  Apparently, some group had organized yet another protest against police brutality and racism. Laudable goals, I am sure, but I think I do more for the cause by teaching Constitutional Law than by attending protests.  Yet, my students were interested because a colleague of mine was counter protesting on behalf of the police, who she thinks are being treated most unfairly.  I found this notion absurd, but the students wanted to go, and cajoled quite skillfully.

“But Dr. Dunraven,” said they, “doesn’t Aristotle talk about civic virtue and the good of the polis?  Isn’t this protest about just those topics?  And didn’t you say we are studying social justice theories next week?  Wouldn’t this be a good way to see them in action?”

“Besides,” said another, “just last week you made fun of us for being in college but never attending a protest.”

Well there they had me.  What self-respecting college student graduates without ever protesting something?  It’s like graduating without ever writing a research paper: possible but woefully inadequate.  It might even be un-American considering Alexis de Tocqueville’s famous observation of Americans’ remarkable tendency to organize for every conceivable purpose and cause. So, of course, I shrugged and let my troop of hard working, free market, liberty advocates march over to witness their first social justice protest.  They were appalled.

When I arrived at the protest, I found the students already clustered around my colleague, an elegant, petite woman standing alone with a sign thanking police for all they do right.  Facing her was a clearly angry crowd of a hundred or so people.  The protesters were shouting epitaphs at my colleague, calling her a, “white privileged bitch,” who had no right to be there, or even to speak, apparently.  Whenever she would try to reply, they would shout over her, telling her to leave.  The arrival of the students seemed to infuriate them more.  The white students were called rich, privileged, oppressors.  Black and Hispanic students were called white-washed, or sell outs, and told they were far beneath the protesters.  Military veteran students were called murderers.    

The students, to their credit, remained calm and polite, but confessed this was not the type of Aristotelian civic dialogue they had in mind.  Indeed, they said they found no virtue in it at all, and were shocked that people claiming to advocate for social justice, respect, and civil rights could demonstrate such disdain for each of those concepts.  In the face of such hatred, all but one eventually returned to the classroom in disgust at the complete lack of civilized discourse they encountered. 

That left only my fellow professor and a single student, both now resigned to polite silence, to face the verbal assaults of the crowd.  When it became clear they would not be driven away, a couple of activists began circulating through the crowd, and moved the entire protest to the opposite side of the field, claiming that they did not feel safe.  Over 100 shouting people moved because they did not feel safe after trying-- and failing-- to intimidate a 5 foot woman and a first year college student into fleeing. 

The overt hypocrisy of such intolerance only grew in how the crowd treated me.  Upon my arrival, I warmly greeted my colleague and students.  Immediately, the crowd demanded to know who I was.  I politely identified myself, and explained I was also a professor, teaching Constitutional Law.  I stood near my colleague, both of us were dressed quite formally, both appear ethnically European, and both were professors.  No one had any reason to think my opinions differed from hers.  The only difference between us, so far as the crowd knew, was that I was a man and she a woman. Yet, while an angry mob surrounded and shouted at her, when those same people surrounded me, they almost deferentially asked me what I thought of the event. They did not shout, or even make a rude remark. Again, while both my colleague and I looked professional, and we both carried a mantle of authority and expertise as professors, she was treated poorly while I was treated solicitously. I found it hysterically funny that a social justice crowd protesting what they saw as latent racism in police forces would be so blind to their own rather overt sexism in how they tried to shout down and silence the voice of a solitary woman in a position of honor—but not a man.

After returning to the classroom, my students expressed their frustration with the complete lack of civility they encountered.  Many students, much like myself, even sympathized with the ostensible goals of the protesters, but were chagrined at their complete refusal to engage in any meaningful dialogue.  Most reported that, every time they tried to engage, the protesters would simply shout them down with some repetitive phase, be it “oppressor,” or “murderer,” at the instruction of a few lead activists.  As they left, they told me one protestor shouted some incoherent nonsense at them, whereupon an organizing activist ran over to issue a correction.  The chastened protester then shouted, “Yeah, THAT’s what I meant!”  My students said they were not sure if such a display was horrifying or funny, and asked me if such slavish mindlessness was what Aristotle meant when he referred to natural slaves.  I suspect it is.

Aristotle defined a natural slave as someone who was incapable of articulating or reasoning out principles for themselves, but was capable of embracing the principled dictates of others if given sufficient instruction, and thus is not truly free.  Today, we might call this a natural follower.  However, while Aristotle thought this trait to be permanent and inborn, I suspect it is the result of training.  Many of the most viscous protesters were not incapable of intellectualism at all.  Indeed, they turned out to be students of Sociology, and devoted to the teaching of a few of their favored professors.  Unfortunately, modern academia too often forsakes teaching students logical reasoning in favor of teaching them ideological dogma.  Questioning that dogma is quickly derided and punished, while fervent acceptance is held up as virtuous and the very exponent of intelligence.  While this sort of academic training was implemented by the Progressive Movement, and is vital to sustaining it, even many conservatives, tragically, have adopted the process, if with an opposite ideology.  Such dogmatic thinking will always produce slaves, whose chains are reinforced with the vapid level of intellectual discourse running through society, often consisting of no more than a trite platitudinous tweet or a thumbs-up-like to an equally vacuous Facebook post, both echoing dogmas learned by rote.   

The protesters yesterday had real grievances and valid frustrations with their society.  They chose to lay those grievances on the police and demand reparations.  In their refusal to engage in any meaningful dialogue with their opposition, however, they succeeded only in making enemies.  Civil discourse is abandoned as both sides simply try to gather enough numbers to bludgeon the other side into submission—and while such a process may start with verbal bludgeoning, it usually ends in the physical form, for force is all that is left to us when reason fails.

Aristotle posited that the highest good was intellectual reasoned discourse in service to civic virtue.  Yet, thinking and reasoning requires training, and discourse takes a great deal of practice.  Academia is supposed to provide both.  It serves us poorly if it instead trains us only to recite secular dogmas, and shout them repeatedly if challenged in the hope of overwhelming any opposition with noise, exhaustion, or outright force.  It is small wonder our society has become so intractably polarized with such training.  That can only continue to worsen until we can learn to listen to one another, to discourse with one another, and to together struggle to pursue truth through the challenges of reason.