Progressives Are All Too Willing to Cut Constitutional Corners

By George Will

Thursday, October 17, 2019

Presidential aspirant Beto O’Rourke, thrashing about in an attempt to be noticed, says tax exemptions should be denied to churches and other institutions that oppose same-sex marriage. O’Rourke’s suggestion, and Massachusetts senator Elizabeth Warren’s plan to tax the “excessive” exercise of a First Amendment right, and the NBA’s painful lesson about the perils of moral grandstanding illustrate how progressivism has become a compound of self-satisfied moral preening and a thirst for coercion.

O’Rourke is innocent of originality: Harvard law professor Mark Tushnet recommends a “hard line” against people who deviate from progressivism: “Trying to be nice to the losers didn’t work well after the Civil War” and “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.” Apparently it is progressive to regard unprogressive Americans as akin to enemies vanquished in wars. No Churchillian nonsense about “in victory, magnanimity.”

UCLA law professor Eugene Volokh notes that in 1952 California voters used a progressive device, a referendum, to amend the state’s constitution to deny tax exemptions to certain people despised by the majority — people who advocated the unlawful overthrow of the U.S. government. Fortunately, in 1958, in another case from California (concerning denial of property tax exemptions to veterans who refused to swear an oath not to advocate the unlawful overthrow of the government), the U.S. Supreme Court did its counter-majoritarian duty to protect minority rights, striking down this measure: “To deny an exemption to claimants who engage in certain forms of speech is . . . the same as if the state were to fine them for this speech.”

Warren, a policy polymath, has a plan for everything, including for taxing speech that annoys her. The pesky First Amendment (in 2014, 54 Democratic senators voted to amend it to empower Congress to regulate spending that disseminates political speech about Congress) says Congress shall make no law . . . abridging the right of the people “to petition the government for a redress of grievances.” One name for such petitioning is lobbying. Warren proposes steep taxes (up to 75 percent) on “excessive” lobbying expenditures, as though the amendment says Congress can forbid “excessive” petitioning. Lobbyists are unpopular, and her entire agenda depends on what the amendment was written to prevent — arousing majority passions against an unpopular minority (the wealthy). Warren, who like O’Rourke is operatic when denouncing Donald Trump’s ignorance of, or hostility to, constitutional norms, might not be a plausible person to make the case against him.

“In defeat, defiance” was Churchill’s recommendation. The NBA’s is: When tyrants snarl, grovel. Beijing’s tantrum — great powers do not resemble frustrated toddlers — was detonated by a Houston Rockets employee who tweeted support for Hong Kong protesters. Commissioner Adam Silver, who represents the teams’ owners—

Sorry. Forgive the insensitivity. The NBA has been so insufferable in its virtue signaling, so relentless in its progressive preening, that this past summer it announced that it has “moved away” from calling those who own teams “owners.” The term supposedly carries connotations of slavery.

But back to Silver. He took the 2017 All-Star Game away from Charlotte, so horrified was the NBA by a North Carolina law requiring transgender people to use public bathrooms according to the sex on their birth certificates. The NBA’s decision expressed its “long-standing core values,” which are, however, compatible with the NBA having its China training camp in Xinjiang province, where Chinese citizens are in concentration camps that facilitate “re-education.”

There is strong evidence (from an independent tribunal that met in London) that China, which has many more people in concentration camps — perhaps 1.5 million in Xinjiang alone — than Hitler had during the 1936 Olympics, is still harvesting organs, including hearts, from prisoners, some while still alive, for Chinese and foreign purchasers. Silver, however, is ostentatiously sensitive about “owners,” so Beijing should avoid that word, or else. The NBA should have done what a congressional letter recommends: suspend activities in China until “government-controlled broadcasters and government-controlled commercial sponsors end their boycott of NBA activities and the selective treatment of the Houston Rockets.” This would have caused Beijing’s infantilism to become a national embarrassment — a weak nation’s idea of national strength.

Unfortunately, however, O’Rourke, Warren, and Silver demonstrate the tendency of too many progressives to cut constitutional corners, to despise and bully adversaries, and to practice theatrical but selective indignation about attacks on fundamental American principles, some of which they themselves traduce. Just what we did not need in our dispiriting civic life — additional evidence that there really is no such thing as rock bottom.