When the leaked draft opinion in Dobbs v. Jackson’s Women’s Health Organization came out suggesting that the Supreme Court was prepared to overturn Roe v. Wade one of my students said: “Since I personally do not believe in abortion that is okay with me.”
There is something troubling about this statement. It exemplifies the demise of the art of toleration that once was a hallmark of a liberal society. And in large part that is what is wrong with the Dobbs majority opinion and efforts by others to ban abortion or restrict the personal freedoms or ideas of others. It is also a symbol of the larger problem with the conservative and religious right in America.
The United States is supposed to be a liberal society. A liberal society is indebted to political ideas and values that trace back to the seventeenth century British political philosopher John Locke as well as Thomas Jefferson, and the Founding Fathers who signed the Declaration of Independence, the Constitution, and the Bill of Rights. It is a secular view of society where the government must respect individual moral choices, opting to be neutral regarding how its citizens define their vision of a good life for themselves. It is also a tradition committed to the idea of toleration—the idea that I cannot impose my personal moral choices on to others and that I must allow ideas and choices to be made by others, even if I detest them.
The concept of toleration is a modern Western European invention, born out of the exhaustion of the religious civil wars and the split between the Catholic Church and Protestants in the sixteenth century. John Milton’s Areopagitica, in arguing against the right of one religious sect to use the power of the government to censor books, declared that no one but God perhaps knows what the truth is and banning books might well be banning truth. John Locke’s A Letter Concerning Toleration states that no one group has the right to impose its views on another. And John Stuart Mill’s classic On Liberty states that the truth of an idea must be found in how it faces challenges from rivals and that society has no authority over the private realm or choices people make if they do not affect others. These ideas here represent the core of the idea of toleration.
Liberal toleration was born of the fear that a government that does not respect the separation of church and state is free to define orthodoxy, foisting upon dissenters, critics, and non-believers their view of truth in the name of God. The 1598 French Edict of Nantes recognized the right of Protestants to believe what they wish. British King James II and the Glorious Revolution of 1688 were about religious toleration. All of these historical events speak to a gradual recognition in the West that the church should be separate from the state, individuals should be free regarding what they believe, and that there are limits to orthodoxy and what a majority can compel a minority to believe or do.
The hallmark of a modern liberal society such as the United States is supposedly balancing majority rule with minority rights. James Madison declares that to be the case in his Federalist Paper number 10. Alexis DeTocqueville’s Democracy in America fears the tyranny of the majority, and the purpose of the Constitution and Bill of Rights is to maintain government neutrality regarding personal moral choices and to draw limits on what majorities can force upon individuals.
Perhaps the best expression of the concept of toleration is found in West Virginia v Barnette. Justice Jackson, writing for the Supreme Court in invalidating a mandatory Pledge of Allegiance law in public school, declared: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The point here is that there are limits to what political majorities can or should be allowed to do to others. You can believe what you want but you cannot use the force of law to enact your beliefs into law. We have a right to our own opinion, but we cannot foist it upon others.
It is this concept of toleration that Justice Alito seemed to forget when he wrote the draft opinion in Dobbs overturning Roe v. Wade. There he said because abortion was such a controversial decision it ought therefore to be decided by state legislators and the voters. This is exactly wrong and it eschews a sense of intolerance for the difference that is supposed to be the hallmark of a liberal society.
Again quoting Justice Jackson from Barnette: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
How can I expect my students or our society to be tolerant if the Supreme Court fails to understand the concept?
This content originally appeared on CounterPunch.org and was authored by David Schultz.
David Schultz | Radio Free (2022-05-13T08:51:35+00:00) American Politics and the Lost Art of Toleration. Retrieved from https://www.radiofree.org/2022/05/13/american-politics-and-the-lost-art-of-toleration/
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