Wendy Davis vs. Principle

By Charles C. W. Cooke

Wednesday, October 22, 2014

That a doyenne of the midafternoon MSNBC crowd is losing a gubernatorial race in deep-red Texas should come as a surprise to nobody. That she has been reduced to the rank indignity of her present antics, however, was a little less drearily predictable. After all, there is losing in politics, and then there is losing, and of late Davis has become sorely adept at the latter. In the space of just a year, Joan of Arc has been transmogrified into Elmer Fudd, replete with ill-fitting hunting rifle, cartoonish faux-accent, and, now, a good deal of hapless frustration to boot. Has there ever been a swifter fall from grace?

Among Davis’s recent offerings have been an attack ad that appeared to draw attention to her opponent’s disability; the introduction into the race of a contretemps over the legal availability of rubber sex toys; and, most egregiously of all, the suggestion that her opponent is a secret foe of interracial marriage. Per Hippocrates, desperate times may indeed call for desperate measures, but “desperate” and “suicidal” are not synonyms, and recklessness is not the most profitable of strategies. Is this really the best that she can do?

The lattermost of Davis’s array of mistakes — the proposal that her opponent, Greg Abbott, disapproves of interracial marriage — was made after Abbott refused to answer whether he would have defended Texas’s ban had he been attorney general a half-century ago. “I can’t go back and answer some hypothetical question like that,” Abbott replied, before effectively conceding that he would probably have felt obliged. “The job of an attorney general,” he noted, “is to represent and defend in court the laws of their client, which is the state legislature, unless and until a court strikes it down.” Rather predictably, this answer was immediately denounced by the Democratic party of Texas, which first described his response as “offensive”; then pretended disgracefully that Abbott had suggested that “an interracial marriage ban” was “on the table”; and finally, coordinated with the Davis campaign, which picked up and echoed the charge three times.

The manner in which Texas Democrats seized upon this line is, in and of itself, dishonorable. But Abbott’s critics are wrong on the merits, too. Indeed, far from being abhorrent, the question asked of Abbott is genuinely fascinating — and it inspires a series of similarly engaging inquiries: “At what point does the rule of law play second fiddle to a person’s natural rights?”; “When it is acceptable for government lawyers to refuse to do their jobs?”; and “If a representative of the state feels that he cannot uphold the rules, what is he expected to do?” In a more sensible political culture, such a discussion would have been treated with reverence and delicateness, and, crucially, Abbott’s answer would have been received with the immediate recognition that if we are to live in a free country there will be times at which the rules do not tally perfectly with our sense of justice. Just as “constitutional” is not merely another way of saying “thing I like,” for a man to recognize that a given activity is legal is by no means for him to endorse it. The correct response to Abbott’s answer, is, “how interesting.” Wendy Davis’s response to Abbott’s answer was to insinuate that Abbott must oppose Loving v. Virginia. How’s that for “liberal”?

Politics is a silly game, and Davis is an especially maladroit player. Nevertheless, her reaction is telling, neatly demonstrating as it does just how comprehensively the politics of victimhood devours classical conceptions of liberty. Abbott’s argument was that, as a lawyer, his job would be to represent the interests of his client — whatever he personally thought of those interests. At what point, one wonders, did this approach become controversial among civilized people? As it is broadly understood that defense attorneys play a crucial role within the criminal-justice system — their job being to make the best possible case against the claims of the state — it should be generally comprehended that an attorney general plays a crucial role within a constitutional republic. Suppose that Abbott had said explicitly that he would have been duty bound to defend Texas’s miscegenation laws. Would that have made him Bull Connor? Or would that have made him a representative of the will of the people — a paid channel and nothing less? Clearly, it is the latter.

This matters. Why? Well, because classical liberalism rests largely upon the presumption that the people will not confuse generally applicable principles with their occasionally unpleasant consequences. Thus is it accepted in the United States that the cost of free-speech protections is the execrable ranting of the Westboro Baptist Church. Thus is it recognized that a system that presupposes the innocence of the accused will inevitably permit a few bad eggs to walk. Thus is it acknowledged that the price we pay for our privacy is that those who would do us harm are accorded a certain head start. One can only wonder what might have happened to these measures had Wendy Davis’s attitude prevailed while they were being codified. Would not the very notion of establishing certain safeguards have been dismissed as a thinly disguised effort to entrench existing “privileges” — or, perhaps, as an attempt to intellectualize justifications for “hate,” for “intolerance,” and for the “patriarchy”?

That Wendy Davis seems to regards Abbott’s asseveration as a character flaw is, I’m afraid, extraordinarily dangerous. How exactly do we imagine the First Amendment would have fared if it had been presented as a measure to privilege the communication rights of neo-Nazis over the feeling of Jews, or as an attempt to elevate into the national charter the right to burn the beloved American flag? What about the Fifth and Sixth and Seventh amendments? One can almost hear the attack ads now. “Secretary Jefferson,” a Davis commercial might run, “wants to subject rape victims to the trauma of reliving their experiences in court. And he has even expressed support for a provision that would require the victims of sexual assault to be faced by their accusers. Jefferson is wrong for women, and he is wrong for Texas.”

As for privacy or the right to keep and bear arms? Forget it.

Perilously, we are starting to see this attitude more and more frequently. When Salon’s Katie McDonough asks bitterly, when will “women’s lives . . . matter more than abstractions,” this is precisely what she means: that we should ignore the principles and strictures of republican government in the name of our preferred outcomes. In this manner, too, have we come to discuss the ever-diminishing scope of private property rights, our debates centering nowadays not on whether individuals should have a general right to decide whom they will serve, but on why anybody would be asking these questions in the first instance. Think you should be able to decide who comes into your bar? Drop the act, Bubba, you must be in the Klan. Grotesque as it is to watch a woman running for public office in 2014 attempt to convince her fans that her opponent is George Wallace, Davis’s real crime was not hyperbole. Instead, it was to have contributed willfully to the metastasizing civic ignorance of those she seeks to serve. Davis saw an opportunity to add a couple of points to her tally at the expense of the republic in which she lives, and, unashamedly and repeatedly, she took it. Rarely has a crushing loss been so richly deserved.