In Defense of Onerousness

By Jonah Goldberg

Friday, August 11, 2023

 

Because the second Friday in August is widely known as Strained Movie Reference Day, let me start with a scene from the movie Working Girl. A dude who looks like Col. Sanders has agreed to sell his radio network. He says:

 

Oh, gentlemen, uhh, and ladies, I’ve decided to sell Mr. Trask  the Metro Radio System for $68.5 million dollars in cash and securities. Now, of course, this is, uh, an agreement in principle. As to what constitutes principles in this day and age, I’m gonna leave that up to you barracudas to squabble over.

 

This is pretty close to my view, most days and in most circumstances, of the relationship between law and public policy. Come up with a general approach you want, and then have the barracudas—i.e. lawyers, wonks, et al.— squabble over how to do it. 

 

Now, some unfair graffiti in AEI’s bathrooms notwithstanding, I am not a rank instrumentalist. Sometimes the lawyers will come back and say, “Sorry, but you can’t do that legally.” And when they do that, you should listen. 

 

In other words, I don’t support the Biden approach to, say, student loan forgiveness or Trump’s approach to stealing elections. I don’t think presidents—or anyone else—can or should shop for lawyers (whether it’s Larry Tribe or John Eastman) who will just tell them what they want to hear and give them permission to violate the law or its spirit.

 

For instance, contrary to a lot of folks on the New Right these days, and virtually all of the left, I think a lot of the New Deal was bad not just economically but legally and philosophically. 

 

“I want to assure you,” FDR aide Harry Hopkins once told a group of New Deal activists, “that we are not afraid of exploring anything within the law, and we have a lawyer who will declare anything you want to do legal.”

 

I think this is worse than merely lawless, because it covers the pill of lawlessness with a fake sugary coating of faux legality, undermining respect for the law in the process. At least real tyrants have the honesty of saying, in effect, “Comply with my whims or face punishment.” 

 

It’s weird: As I wrote recently, I’ve come to see the courts as the best institutions in our system, because they have strict rules about the kinds of arguments you can make and clear requirements for providing facts and evidence to support them. But over the same period, I’ve gotten increasingly pissy toward lawyers and most legal and constitutional debates in the political arena. 

 

I’ve written a lot about this in the context of impeachment. Impeachment is an expressly political mechanism, but we’ve outsourced impeachment debates not just to lawyers but to legalism. As I wrote this week:

 

As for the legalism, my God. Over and over, defenders and accusers alike, talked about impeachment as if it were a criminal proceeding (as in Bill Clinton’s impeachment trial). Terms like “beyond a reasonable doubt,” “due process,” “no one is above the law” peppered the airwaves. TV lawyers, on all sides, would occasionally admit “impeachment is a political process” and then proceed to pretend that only lawyers, not politicians, were equipped with the expertise to decide what is or isn’t impeachable. 

 

And politicians were all too eager to buck responsibility by deferring to the lawyers. 

 

One of the many problems with this approach was that even if you think such arguments are entirely valid, impeachments are not really judicable. What I mean is, even if the Senate voted to convict and remove a sitting president for “bad” or trivial reasons—“He said under oath that Caddyshack II was better than Caddyshack!”—the Supreme Court is not going to overturn the decision. People don’t like to talk about it, but lots of unconstitutional things are not really reviewable by the courts. Congress is supposed to declare war before going to war. But the Supreme Court is never going to rule, “Call the Seventh Fleet back. You didn’t do your paperwork correctly.”

 

In all three impeachments, a majority of senators voted against conviction for obviously partisan reasons, but they hid behind constitutional and legal arguments as a way to absolve themselves of responsibility. Not all of them. But come on, most of them made a political decision and then rummaged through the law books like an old lady looking for a bobby pin in her purse, for whatever sophisticated sounding arguments they could use to fasten their decision to a credible argument. And just to be fair, many of the senators voting to convict (particularly in the opposite party of the president) did the same thing in reverse to mask their partisan interests. 

 

One of the annoying things about this is the sudden fidelity to the Constitution as if it’s something they always care a lot about. Usually, politicians just sort of pretend that the Constitution is just some background software that doesn’t have much relevance for whatever they want to do. For instance, when Nancy Pelosi was asked by a reporter, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

 

Pelosi responded, “Are you serious? Are you serious?”

 

The funny thing about this response is that there’s really no defense of it. If it’s a crazy stupid question, it should be easy to answer, particularly for arguably the second most powerful constitutional officer in our system of government. If it’s a good question— and I think it is— her response is even more damning because she wants to pretend that the answer doesn’t actually matter. 

 

Porn again.

 

But enough with impeachment stuff. Let’s talk about kids, porn, and law stuff. Politico had a great write-up of how age verification laws are forcing Pornhub—the 800-pound gorilla of online porn (pro-tip: Don’t search Pornhub for “800-pound gorilla”)—to abandon states rather than comply. 

 

(We talked about this a little bit on the Dispatch Podcast this week, and one of the difficulties in such conversations is that it’s, um, hard to talk about porn companies pulling out of anything without inviting a litany of “that’s what she saids” and other opportunities for double entendre. But I will try to avoid inadvertent juvenilia in favor of advertant juvenilia.)

 

Now, the issue of whether minors have constitutional rights is complicated. They definitely have some. But others mature with maturity. I think nearly all reasonable people are fine with this generally. Whether 17-year-olds have fully protected Second Amendment rights is debatable. Whether 7-year-olds do really isn’t. The way I think about it is that kids have some very basic rights, call them human rights or procedural rights, but the rest sort of sit in escrow accounts managed by their parents or other guardians until they come of age. 

 

But we don’t need to get deeper into that. There are more positions on the issue of pornography than there are in the Kama Sutra. And I’m willing to debate most of them. But I think it’s just obvious that, all things being equal, it should be difficult for kids to see porn. If you think exposing kids to hardcore porn is a good idea, that sound you hear may be child services knocking on your door (and if you think it’s good to expose other people’s kids to porn, that sound you hear may be the cops knocking on your door). 

 

There are many legitimate legal objections to age verification laws, particularly for non-porny social media. Most of the legitimate ones are about the unreliability of the technology and the problems with sharing personal data that can be exploited by grifters and identity thieves. I’m less worked up about the violence such laws do to the constitutional right to anonymity. But it’s not a bogus concern either.

 

But as far as I’m concerned, this is the stuff you leave to the barracudas to squabble over. 

 

What I have little patience for is outrage over the idea that we’re making it a little more difficult for adults to watch porn in an effort to shield kids from porn. 

 

Think of it this way. If every state in the country adopted age verification laws, it would still be easier to watch On Golden Blonde—or whatever popular porn movies are called today—than it was at any point in American history prior to, say, the year 2000. 

 

As a cis-heteronormative youth, I was very eager to see attractive naked women enthusiastically doing naughty things (given that as a kid I once saw a lot of middle-aged Germans on a nude beach, I feel I need to include the adjective “attractive”). It was hard. Not impossible, but it took some work to do it. And generally speaking, I think I’m a better person for it. 

 

Indeed, we used to have “red light districts” where you had to go way out of your way to see the Adventures of Bi-Curious George or Sleeping Booty. Those theaters had age verification rules, as did every newsstand that sold Hustler or Penthouse. 

 

Back then, if you argued that such age restrictions should be lifted, people would start looking for your windowless van with “Free Candy” written on the side. But because of the internet, it’s become much, much less onerous. Count me on team “More Onerousness.” The argument that making it slightly more difficult for adults to see unlimited porn in order to protect kids is a grave constitutional violation just strikes me as another example of using legalism as a cover for a preferred policy. 

 

I have said many times that I’ve become more libertarian over the years. And libertarians often grill me on why I won’t fully commit. Well, it’s because of issues like this. Ramesh Ponnuru used to joke that libertarianism is the greatest political philosophy ever invented, it just has two fatal blindspots: Foreign policy and children. 

 

We are not born as the kinds of rational actors that many forms of libertarianism take as a given. Indeed, a great many people never become the rational actors that libertarianism depends upon to work, which is why libertarians spend so much time complaining about the irrationality of non-libertarians. 

 

We come into this world as little barbarians. And it’s the work of society, but especially parents, to civilize kids. Frequent exposure to pornography is not helpful to that project. Over at Cato, Jennifer Huddleston runs through many of the problems with age verification regulations, for both pornography and social media generally. Again, some of her arguments are entirely valid and I think the barracudas should deal with them as best they can. But she concludes: 

 

Because the issues with each child and family are different, there is unlikely to be a regulatory regime that can satisfy the difficult and nuanced challenges faced by parents in a digital age. Importantly, policymakers and parents should engage with young people to fully understand their changing online behaviors and experiences. The best solution is to empower and educate parents and young people to make responsible choices with technology. Such an approach can allow for individuals to more directly address the concerns associated with harmful social media usage while allowing the next generation to experience the benefits of positive social media use. If policymakers feel they must do something about these concerns, they should consider less‐​restrictive solutions that focus on education and empowerment of young people and parents rather than onerous regulatory regimes.

 

Yes, by all means consider other solutions. But come on. This is basically saying, “You’re on your own parents.” And it is precisely this approach that invited these laws in the first place. Of course, parents should parent their kids. But in the pre-internet age, no one would ever say, “Kids should be allowed to go to strip clubs and porn theaters. It’s up to parents to ‘engage’ with their 14-year-old boys and explain to them why they shouldn’t go to those places.” I don’t even understand how “empowering” kids is an argument for limiting their consumption of porn. 

 

Everything is improved when good parents parent goodly. But the state has both the interest and the ability to make it just a little easier for good parents to raise good kids, and even more of an interest in making it a little more difficult for bad parents to raise bad kids. Imagine saying, “The best solution is to empower and educate parents and young people to make responsible choices with technology,” about handguns, drugs, cars, or cosmetic surgery. Those are all forms of “technology,” too, and we have all sorts of rules that make it easier for parents to tell their kids they can’t have a Glock, a dime bag of heroin (or a Viagra prescription), breast implants, etc. 

 

From a libertarian and constitutional perspective, all of these restrictions are in tension with some abstract right, and Jimmy Crack Corn I don’t care.