Over at Time, University of Chicago law professor Aziz Z. Huq has penned “The Conservative Case Against Banning Critical Race Theory.” It’s worth quoting Michael Anton from The Before Time (i.e., pre-November 3, 2016), who astutely observed that
[w]henever you find an article that begins with the title, “The Conservative Case” for or against something, lock your door, check your wallet, and grab your gun. You know what’s coming is an unadulterated sell-out of everything “conservatism” purports to hold dear.
Anton is exactly right, and it should come as absolutely no surprise that the latest installment of this genre amounts to just that sort of foolish anti-conservatism. Except this one’s even more curious than that.
I’ll start by explaining why Huq’s article is even more off the wall than others of its type, and then I’ll get into its errors on the merits.
Huq isn’t even a conservative
The typical “the conservative case for/against” article is above all cringe-y—“A Conservative Defense of Transgender Rights,” anyone? But they’re at least usually written by someone who’s, well, identifiably conservative. After all, that seems like kind of an important prerequisite, no?
Based on a simple search of “Aziz Huq,” it appears he’s . . . a liberal. And not just any liberal. Oh, no. He’s a liberal’s liberal, a real bleedin’ heart-type.
Before landing at the University of Chicago, Huq was associate counsel and then director of the Brennan Center for Justice, a progressive impact-litigation firm, named after one of the Supreme Court’s most notorious “living constitutionalists,” Justice William J. Brennan. He co-wrote a book, How to Save a Constitutional Democracy (2018), that argues that “a rising wave of populist leaders [Donald Trump among them, of course] threatens to erode the core structures of democratic self-rule.” He’s affiliated with the American Constitution Society, the wannabe (but happily) much less successful “Federalist Society for the Left.” For The Nation, a publication that doesn’t try at all to hide its progressive bona fides, he’s written such things as “Trump’s War on Children” (subheading: “White House policies form an unprecedented assault on kids—but, of course, not the white kids”). And, as if all that’s not enough, he clerked for the late Justice Ruth Bader Ginsburg.
This is the man that the laptop class tapped to descend from on high (i.e., the ivory tower) to present “the ‘conservative’ case against banning CRT” to the unwashed deplorables. Hah!
I can only assume Huq got the nod to stop benchwarming because David French—who thinks Huq’s article is “excellent,” by the way—was unavailable to write it instead. (Perhaps he was too busy drafting another defense of “drag queen story hour” as one of “the blessings of liberty” of America, or patting himself on the back for his generous collaboration with anti-American zealots.)
Huq is wrong
Setting aside the oddness of reading this “conservative” lib-splain (is this what the kids call “cultural appropriation?), Huq is dreadfully incorrect about the merits of the issue. His M.O. is to set up a straw man and then knock it down . This is the basic structure of his argument:
“The case against CRT . . . is not about a fixed set of ideas. It is about wanting to avoid certain feelings of discomfort or even shame.” (He says a version of this at least three times.)
The First Amendment—as even arch-conservative Justice Samuel Alito recognized this past term—forbids “suppress[ing] [speech] just because it expresses thoughts or sentiments that others find upsetting.” (It’s worth noting, however, that Justice Clarence Thomas, certainly no liberal, disagreed.)
Therefore, banning CRT violates the First Amendment.
But Huq’s first premise is wrong (and the second, which is related, is not quite as powerful as it seems). The “core of the case against CRT” is not that “speech can and should be curtailed because it makes some people feel uncomfortable or threatened” or that “people shouldn’t be made to feel uncomfortable about their advantages or others’ disadvantages.” Rather, the reason CRT should be kept out of schools, the workplace, and the federal bureaucracy—and then comprehensively stigmatized until it’s intellectually and socially radioactive to espouse it—is that it’s racist. Pure and simple.
But under the Supreme Court’s free-speech precedent, “we protect the freedom to express ‘the thought that we hate.’ ” At first glance, that principle seems to foreclose the possibility of doing anything to combat CRT. But that’s not the case. In reality, we’re not at all powerless to prevent leftist racism from warping our critical institutions and infecting the body politic like a civilization-destroying cancer. Why?
As Justice Robert H. Jackson noted (albeit in dissent) in Terminiello v. Chicago (1949), a free-speech case, the Constitution is not a “suicide pact.” Lincoln recognized that same reality when he suspended the writ of habeas corpus during the Civil War. In his 1861 “Message to Congress in Special Session,” he asked, rhetorically, whether, since all of the laws in the states that had seceded from the Union had been subverted, “are all . . . but one [habeas corpus], to go unexecuted, and the government itself go to pieces, lest that one be violated?” Jefferson was of a similar mind:
The question you propose, Whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrasing [sic] in practice. [A] strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. the laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property [and] all those who are enjoying them with us; thus absurdly sacrificing the end to the means.
Ryan Williams, president of the Claremont Institute, makes a similar point, applying this weighty principle directly to speech:
The First Amendment, rooted as it is in the principles of the declaration (the equal protection of natural rights), and informed as it is by the preamble of the Constitution (the document is meant to secure the blessings of liberty rather than its curses), cannot be indifferent to speech and teachings that deny and wish to subvert its own foundations.
Militating against CRT, then, is emphatically not about “censoring speech” that results in “audience discomfort,” as Huq disingenuously alleges. Rather, those who reject it—and they’re ordinary Americans, as Christopher Rufo and others have explained—rightly sense, at a gut level, that they’re helping to prevent, in the worst-case scenario, a racial civil war from breaking out that would destroy the country that they love.
Being anti-CRT is about securing the common good by recognizing and fighting to enshrine once more in the public’s consciousness what Lincoln called “the father of all moral principle” in an 1858 speech: “all men are created equal.”
Housebroken conservatives fail to see that the battle over CRT possesses this existential quality not just because they’re paid not to but because they’re ideologically and philosophically incapable of seeing the bigger picture, of seeing past their noses. As is their wont (it’s in the name!), they’re committed to conserving that which they know: an organic state, unlimited in principle, whose inner logic is the entrenchment and extension of identity-based group privilege and patronage, with a dash of economic oligarchy thrown in for good measure. Whatever the Left creates, they conserve, no matter how ugly. Conservatives do not see how far we have been wrenched away from the regime that the founders bequeathed to us and that Lincoln saved and renewed: limited government that protects the equal natural rights of all, according to the rule of law.
We should reject CRT because it’s political poison that strikes at the soul of America—human moral equality—and to do anything less is to consign the nation to destruction.
But conservatism is no longer enough, if it ever was, to get done the jobs that desperately need doing.
So, we have to be something more: Americans.