(soft music) - [Narrator] The School of Civic and Economic thought and leadership presents the Civic Discourse Project.

Civics, patriotism, and America's Prospects.

This week... - Year after year, government takes more control over our lives, meaning that more of our futures depend upon who gets elected to office, and that makes it inevitable that the temperature of our political conversations will rise because so much more is at stake.

- [Narrator] The Civic Discourse Project is brought to you by Arizona State University's School of Civic and Economic Thought and Leadership.

And now Timothy Sandifer, the Vice President for Legal Affairs at the Goldwater Institute, Scharf-Norton Center for Constitutional litigation, touches on economic freedom and democratic participation.

- My topic is economic liberty and civil discourse, and I specifically want to examine some of the causes of incivility and explore how the curtailing of economic freedom is partly responsible for the crisis that our previous speakers have described.

That is how government's violation of private property rights and economic liberty are doing long-term damage to respect for civil society in America.

But I think that our first step is to understand what the argument is against civility.

Maybe that seems strange to ask.

After all, it seems obvious that civility and decorum are good things that we could all stand to improve.

Alexis de Tocqueville wrote in democracy in America that quote, in the constitution of any people whatsoever, one reaches some point at which the law giver is bound to rely on the good sense and virtue of the citizens.

There is no country where law can foresee everything or where institutions should take the place of reason and morays, quote.

In other words, our habits of interaction, our forms of deference, respect, and good manners are more fundamental forces than even the Constitution itself.

They comprise the very basis of our social system and liberty cannot hope to survive in a society where the habits on which freedom depends have been abandoned.

Certainly the Constitution cannot save us if we cease to revere the values it embodies.

And yet America's political and educational institutions and even traditional practices of debate clearly seem to be deteriorating.

Since at least 2016, Americans appear increasingly willing to indulge in irrational ad hominem attacks, humiliation, intimidation, and even violence.

And of course, that benefits nobody.

From cancel culture to shout downs from the right wingers who claim to drink liberal tears from their coffee mugs to the left wingers who turned justice Kavanaugh's confirmation hearings into a circus a few years ago.

Political decorum seems to have collapsed and understandably many fear that unless these trends change, they could permanently scar our democracy and maybe even lead to civil war.

After all, as Tocqueville said, no system of legal mandates or punishments can possibly substitute for basic attitudes of mutual respect and commonality.

That is all quite clear, and yet I think we must admit that there are good arguments for not being civil.

In fact, we all recognize that there are times when it is not only inappropriate but downright immoral to treat others with decorus courtesy.

We do not compromise with a mugger who demands your money or your life.

We do not try to calmly see both sides if a rapist attacks a woman, you'll have to excuse me, I wrote this a couple months ago before it became clear that there are some on the left who do try to see both sides if the rape victim happens to be Jewish, but I'll continue.

If there is any lesson to draw from the 1930s or from the events of October 7th, it is, as the old slogan has it, you cannot do business with Hitler.

I would go further.

I say there are times when incivility plays an important role, both in democratic debate and personal integrity.

Incivility sends a message about what we are unwilling to accept as normal and appropriate, aside from what the law allows or forbids.

It's good that smoking is not illegal, but I don't have to approve of it or consider it respectable or allow someone to smoke in my living room.

And if someone does, it's right for me to throw 'em out of my house.

It's no less worthwhile to express my revulsion about say, Nazis marching at the Arizona Capitol building as they did in April, 2021, or supporters of the Hamas terrorist organization throwing rocks and threatening Jewish students on this campus as they did only two weeks ago.

Loudly expressing our disgust about these things preserves the values on which our society rests and reinforces our fellow citizens' confidence that we still take those values seriously.

But refusing to treat evil ideas with civil decorum isn't just important for society.

It also plays an important role in the individual's own conscience.

Something I think we too often neglect, in discussing questions about political discourse, we sometimes speak as though the only purpose of free speech is to help us form a democratic consensus, but the truth is that dissents relationship to individual conscience is even more important than that.

We should not blindly assume that dissent is targeted at persuading others.

Often it's more about a person's testament to his or her own values, an effort to live in accordance with his or her own beliefs, and therefore, a far more sacred thing than any merely utilitarian statement.

There's an even better argument for incivility, however, and it's this one often finds that those who insist upon maintaining civil disagreement are actually engaging in an intellectual slight of hand and tended to obscure the difference between good and evil or just and unjust.

I think none of us, well, not many of us anyway, would be willing to give equal time to a modern day Hitler or Stalin.

But when we overemphasize the virtue of civility, we risk doing just that, enabling people with truly evil principles to dress up those principles in respectable clothing.

By agreeing to share the stage with someone who advocates evil beliefs.

We grant his beliefs undeserved credibility and help him conceal that immorality when not only disagreement or civil disobedience, but outright defiance are warranted by principles of justice.

I say that if we ignore this, we risk transforming our society into a kind of machine, one that operates by mere formalities while grinding up the very human beings the system is supposed to protect.

We must not forget that democracy was made for man and not man for democracy.

Indeed, if we insist upon civility upon above everything else, we're implicitly surrendering everything into the realm of the political.

I mean that if we exaggerate the importance of participating in the democratic process, we're inherently assuming that the democratic process has a legitimate claim over absolutely everything in our lives, and that no aspect of individuality is off limits to the prying eyes and fingers of our neighbors.

But that's wrong, because all government to be legitimate must have its limits that includes democracy.

John Locke made this point in his first treatise on civil government when he ridiculed the arguments of Robert Filmer, an advocate of absolute monarchy.

Filmer said that kings have the same complete power over their subjects that Adam had over the animals in the garden of Eden.

Locke treated this with deserved ridicule.

Sir Robert, he wrote, should have carried his monarchical power one step higher and satisfied the world that kings might eat their subjects too.

I say that if we regard civility as a per se good or decorum as a precondition of political society, as some of our previous speakers in this lecture series have done, we implicitly erase the lines that limit the power of government.

And if we erase the lines, we make it impossible to say that something crosses the line no matter how atrocious, cruel or tyrannical it may be.

And I say we need more such lines today and not fewer.

I am not endorsing shout downs or disruptive behavior that violates the free speech rights of people with whom we disagree or of audiences who want to hear their messages.

Even a person with evil ideas has the right to express those ideas and others have the right to hear them.

Holding your hand over someone else's mouth and preventing him from speaking is not an exercise in free speech and shout downs, or as we lawyers call them hecklers vetoes, only empower the biggest bully in the room to dictate who can speak and what they can say.

If a group of students or a social club invites a speaker to address them, they have the absolute right to hear him speak and it violates their freedom of speech to interrupt that event with event cat calls or vandalism or other hooligan tactics.

People who do such things should be prosecuted, and of course, so should anybody who throws rocks, such disorderly behavior is also counterproductive.

Shout downs and vandalism actually make a speaker's ideas more attractive.

If a political disagreement can result in you losing your home, your business, your marriage, your control over your own body, a society in which there are no boundaries to protect us against politics, there is no civility.

There can at best be only a counterfeit form of civility.

That is to say a reign of terror.

This terror can be masked with layers of politeness and euphemism, courtly flattery and codes of honor.

But in the end, these are not civility because civility arises from a sense of mutual respect and benevolent confidence in our fellow citizens.

Whereas courtly terror is based on viewing others as threats who must always be handled like rattlesnakes.

One must be polite to a rattlesnake, but never civil for exactly the same reason one does not find civility in Kim Jong-un's North Korea or in the Ayatollah's Iran any more than one founded in Stalin's Russia.

I say that no society can be civil that is not firmly rooted on the principles of classical liberalism.

That is on the principle that all people have a basic right to their own lives, liberties, properties, and the right to pursue their own happiness.

The breakdown in civility we're witnessing today is the symptom of an increasing breakdown of those classical liberal values, values that protect our individual freedom against political disagreements.

Recall that the purpose of our constitution is not merely to facilitate democracy, a word, which by the way does not even appear in the Constitution, but instead to protect us against democracy.

And yet, year after year government takes more control over our lives, meaning that more of our futures depend upon who gets elected to office, and that makes it inevitable that the temperature of our political conversations will rise because so much more is at stake.

The problem we are experiencing with civility today is the consequence of the lowering of the political fences that protect our rights, combined with the eagerness of some in our society on both left and right, to tear those fences down entirely so that they can dictate to us how we may live our lives, what we may do with our property, what businesses we can run, what we can read, how we may pray or not pray, what we may drive or eat or buy or sell.

If we want more politeness in our disagreements, we must reinforce the fences that protect us from the realm of politics and ensure that they remain strong.

We're prone nowadays to speak of setting boundaries.

These boundaries reflect our acknowledgement of each person's autonomy and right to make his or her own choices in life.

I say that only after such boundaries are in place can we expect to have civility instead of mutual hostility and terror.

What Hudson calls the inherent equality and dignity of each person that is respect for individual rights, must come before civility in public discourse.

Without it, we are not engaged in civil discourse at all.

But in something like a cold civil war in which pressure groups use the state to deprive each other of their rights under polite euphemisms and democratic procedures, just like the cannibals in Mark Twain's story.

You can see that it is pointless to tell people to remain civil in a debate over morally outrageous attempts to deprive them of their fundamental rights.

It's even more senseless to try to cure this problem by forcing students to take more classes on civics.

These proposed solutions merely transform the legitimate value of civil discourse into a tissue of cliches and platitudes about the importance of coming together while people are being cannibalized.

Probably the most important fence that makes good neighbors is the principle of private property.

Too often, the fences being torn down are literal fences and tearing them down threatens the civil society today and for generations to come.

Many industries today are subject to so-called licensing laws, which prohibit people from entering a profession without first proving to the government that they have the qualifications necessary to do that job.

The obvious examples are medicine or law.

You can't practice these trades without first passing a test to prove to the government that you have the knowledge necessary to operate on a patient or represent someone in court.

But getting a license is extremely expensive and time consuming.

And as a result, these laws serve as barriers to entry that block people from entering certain professions, especially people who can't afford to get the training necessary even to take the test.

And when a licensing law requires thousands of hours of education, the equivalent of a college degree, that barrier to entry can be quite high.

Take Michigan for example, you can't be an athletic trainer there unless you have some 1500 days of education and training.

That's four years.

In Nevada, Louisiana, and Florida, the law requires more than 2000 days, six years of schooling to get a license to practice interior design.

Meanwhile, you can get a paramedic license after spending on average about 30 days in training.

Today, about a third of all occupations require some form of government license, and it's not just doctors and lawyers.

It includes everything from landscape architects to florists.

That's right in Louisiana.

You need government permission to put flowers in a vase for money.

The government's excuse for these laws, of course, is that they protect the public, but from what?

Ugly flower arrangements?

I say that these laws do not protect the public.

They protect existing businesses that already have licenses against having to compete fairly in the marketplace.

The primary advocates of licensing are not consumers wishing to be protected.

It's existing companies that lobby the government for these laws because they want the state to prohibit competition so they can keep their prices up.

Now, economists have studied the financial consequences at length, but these laws also have severe social consequences, ones that ultimately undermine the foundations of civility.

Barriers against free economic competition create an old boys network that is a group of insiders or cronies who profit by excluding others from economic opportunity and enrich themselves through political influence instead of hard work.

The result is obvious.

As government regulations close the doors into the economy, those already on the inside enjoy the benefits of privilege, whereas the chances that an unknown entrepreneur or a newcomer with no political connections might break into the industry or get the financing necessary to start a new business diminish.

He can't afford the classes required to get the license or get the permits required to open his business or get the special favors that the cronies get.

And when this happens year after year and generation after generation, it creates a class of insiders and a class of outsiders, and that perpetuates the image.

Indeed, the reality that the American dream is off limits for certain people, particularly immigrants and members of minority groups, the more we teach young Americans that success is just a matter of favoritism, luck, dishonesty, or even gangsterism, and that the notion of working oneself up from the ground is a myth, the more their respect for democratic institutions will vanish into a fog of resentment, despair, and poisonous nihilism.

If the precondition of civility is that we accept the inherent inequality and dignity of each person, then I say our political and legal institutions must respect individual rights, including the good fences of economic freedom and private property.

Only after these are secure can we hope for the blessings of civil discourse.

In the end, the words were said by Langston Hughes, oh, let my land be a land or liberty is crowned with no false patriotic wreath, but opportunity is real and life is free.

Equality is in the air we breathe, oh, let America be America again.

The land that never has been yet and yet must be the land where every man is free.

Thank you very much.

(audience applauding) (soft music) - Thank you, Timothy, for those remarks.

- Thank you.

- I wanted to start with a question about the kind of education your remarks presuppose, and here we are at a public university.

I'll ask about that, but in homes and in schools and in private associations, religious organizations, wherever the education is occurring, your premise is that we need to recover in education and classical liberalism is the term you used.

Classical ideas of natural rights of individuals.

So talk a little bit, if you would, about just some major milestones of such an education, texts, or authors, or ideas.

- Well, I think the starting text has to be the Declaration of Independence and work backward from there.

When the founders say, we hold these truths to be self-evident, what does it mean by self-evident when they say all men are created equal?

What is this concept of equality and where does it come from?

Of course, the answer is that the classical liberal political philosophy underlying the Declaration of Independence really came to maturity in 17th century England around the time of the English Civil War.

We tend to think of the American Revolution as being the first of a series of wars that continued with the French Revolution and so forth.

It actually was the end of a series of wars that began with the English civil war and then the bloodless revolution of 1688.

And during, I mean, almost a century there you have a great deal of philosophizing, and argument among brilliant thinkers like Locke or John Milton about where rights come from and what the limits of legitimate government are.

So the declaration, you know, Jefferson said, he was late in his life.

Jefferson was asked, well, didn't you just plagiarize the declaration?

And he said, well, it wasn't my job to come up with something new.

So what I did was I tried to synthesize what everybody was already thinking.

And those things came from, and he named four authors.

He said, Aristotle, Cicero, John Locke, and Algernon Sidney, most people today are unfamiliar with the name of Algernon Sidney.

He wrote a book called "Discourses Concerning Government."

So I would start with the declaration and then I would trace it back.

And there are plenty fantastic books and sources out there.

My friend, law professor Randy Barnett, for example, has written a very helpful article that sort of guides you through the declaration and where these ideas came from and then look forward from there.

How was it not applied when it was written?

What about the problem of slavery?

What about the problem of the treatment of women?

And why is it that the abolitionists embraced the declaration and the women suffragists, they embraced the declaration.

They didn't say we disagree with it.

They didn't say they hated it.

It was the pro-slavery forces who openly denounced the declaration, one of them calling it a self-evident lie on the floor of the US Congress.

So that's the text I would start with, is the declaration.

- Great, one of the phrases you used was that for certain ideas as well as certain practices, we should loudly express disgust.

I think that was one way that you phrased it.

But then you very strongly defended freedom of speech and of discourse, and we must hear out ideas that we find reprehensible.

- Absolutely.

- We can't shut down cancel deplatform.

- Right.

- So that's a tricky pair of ideas to hold in a kind of paradox or tension that we can be disgusted or revolted and should very strongly emotively denounce, disagree with.

But we need to learn to hold ourselves before the edge of saying, and therefore I should, you know, for example, on many college campuses or universities, public and private, a libertarian view of a philosophy of individual freedom is disgusting, right?

It's revolting, it's selfish, you know all the criticisms, right?

And therefore a stage should not be give to such a person, and it shouldn't be in courses, et cetera.

So how do we hold these two in tension with each other?

We can show disgust, but we don't want to cancel or prohibit or... - Well, I always think of like Obi-Wan says, if you strike me down, I'll only grow stronger.

But the the answer is that fortunately the rules are there if we just learn them.

The rules have been developed over centuries of free speech law and the application of these principles.

So that, and you know, not only do we know, we all know that the way to handle disagreement is to let the other person speak and then get up and talk and denounce 'em as a fraud.

That's how you do it, and that's how it's been done for centuries.

And it works when it's tried and we all know it, and the Supreme Court knows it and has told us time and time again, and it's only because a group of postmodern pseudo intellectuals have persuaded a lot of people that somehow speech is a form of violence, and violence is a form of speech that we have any kind of pretextual cover for the kind of hooliganism that we've seen on campuses and across the country in the past several years.

- Good evening.

My question is about the difference between Locke and the Declaration.

So Locke said, life, liberty and private property, and our declaration says life, liberty, and the pursuit of happiness.

- Right.

- So could you speak to the intent and the importance of that substitution of words as well as it seems that private property is much clearer than the pursuit of happiness.

So does that also introduce another tension?

- Oh, I'm so glad you asked this question.

So the answer is economic liberty.

The reason why the declaration diverges from the traditional Lockeian phrase and Locke, as you used the phrase, life, liberty, and estate.

Now, when he goes on to define his estate as including your right to labor and to the products, the fruits of your labor are your estate.

So Locke does not deny that you have a right to economic freedom at all.

But he just uses this term.

Jefferson and the other framers of the declaration.

Remember, Jefferson wrote the declaration only a few weeks after the Virginia Declaration of Rights was written and the Virginia Declaration of Rights, actually, I prefer its phraseology, it's a little bit more precise.

It says every person is inherently free and equal and has the same rights that include things like acquiring and possessing property and pursuing and obtaining happiness and safety.

Jefferson, of course, was the one of the greatest of all American writers.

He knew that that didn't quite have the same sound to it, so he shortened it to pursuit of happiness.

Pursuit of happiness means we have the right, not just to the things that we possess, but also the right to pursue our interests and to put our skills to work, to provide for ourselves and our families.

Happiness can take all sorts of different forms, obviously, and the pursuit of happiness can include everything from, you know, having a picnic with your family to starting a small business, growing it into a big business, becoming successful, retiring early, all these, you know, that's what Jefferson is speaking when he says the pursuit of happiness.

So and the reason why we know that is precise, as I said, because Jefferson and others were speaking about the monopolies and restrictions on economic freedom in British America, and they were complaining that this was blocking people from pursuing their own fortunes from coming to America and building their own fortunes.

So the phrase pursuit of happiness is very wisely chosen to say it's not just about what you own, it's about what you can earn.

It's about what you can provide for what you can build, whatever that thing might be.

- One final round of thanks to our guest, Timothy Sanford.

- [Narrator] The Civic Discourse Project is brought to you by Arizona State University's School of Civic and economic thought and leadership.

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