DANIEL VAUGHAN: The progressive enchantment with power imperils liberty

April 23, 2018

David French recently penned an article for National Review describing a new law that is working its way through the California legislature: AB-2943 Unlawful business practices: sexual orientation change efforts. French summarizes this law nicely, writing:

Assembly Bill 2943 would make it an “unlawful business practice” to engage in “a transaction intended to result or that results in the sale or lease of goods or services to any consumer” that advertise, offer to engage in, or do engage in “sexual orientation change efforts with an individual.”

The bill then defines “sexual orientations change efforts” as “any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

The result is that the bill empowers the state to ban anything that seeks to counter progressive notions of gender, sexuality, and the change thereof. As French correctly notes, the law would allow book and other media bans — better known as censorship. The law would also punish any business that sells items advocating a Judeo-Christian traditional view of sex and gender.

As French argues — and I’d agree — the law is a direct assault on First Amendment freedom of speech. Simply put, the bill targets products containing specific forms of expression and bans selling those products.

Predictably, the law passed quickly through several committees in California, though it hasn’t seen a full floor vote yet.

But liberal critics take any debate against the law as another form of discrimination. You can get a feel for that in all the replies to French’s piece; the constant focus is on special interests — not dealing with the constitutionality of the law.

This is a consistent theme of the modern left.

Take the new push by Senate Minority Leader Chuck Schumer on marijuana. He claims that he’s evolved on the topic of weed, and thinks all states should get a chance to choose the path they want to take on marijuana in the future.

That’s a great argument in my book; it’s a form of federalism. He’s advocating for the removal of federal power and returning police power to the states. This a concept directly from the Constitution itself, in the form of the 10th Amendment.

But you’ll never hear that same argument made by Schumer or the left on any other issue. A non-exhaustive list of issues on which states (and the people) get no say includes: abortion, gun laws, what healthcare plan you buy, restrictions on religious freedom, and education.

The progressive nanny state knows no end.

Bring up the idea that abortion laws should be decided state-by-state, and you hate women.

Bring up individuals and states deciding how to regulate health insurance, and you want people to die in the streets.

Bring up allowing states to regulate guns within the confines of the Second Amendment, and you want children killed in schools.

At no point in time does the modern progressive stop to consider what type of power they’re using to achieve a stated end. Only the end goal matters.

That myopic focus on the end goal blinds leftists to glaring unconstitutional moves. It took a 9-0 decision by the Supreme Court to reign in the illegal moves by the Obama-era National Labor Relations Board (NLRB). The Supreme Court had to step in again to tell progressives they couldn’t force people to violate their faith when that faith conflicted with the healthcare law.

And these aren’t one-off cases. The entire concept of a living constitution — which means whatever the person reading it wants it to say — is tailor-made for activists pushing whatever they want.

Which brings us back to the California law. It specifically targets a defined type of speech that progressives don’t like, and then punishes any business selling that type of expression. That is a blatantly unconstitutional law that defies any reading of the first amendment.

Notice my focus here: it’s not on the substance of the law, but instead on how the legislation works. When you say the law is unconstitutional on these grounds, you’re not touching the content of the law itself, but rather how the law abuses power to achieve an end.

If President Donald Trump said tomorrow that he was banning any book that said anything negative about him — books like Fire and Fury, and James Comey’s book — the left would be up in arms. (Rightfully so.) But they’re demanding the same power in the California law.

The progressive fascination with power proves correct Lord Acton, who famously said, “Power tends to corrupt, and absolute power corrupts absolutely.”

The government should not have the power to censor speech. There’s a reason the First Amendment is listed first: because free and open discourse is essential in a republic of liberty. Allowing state censorship threatens all forms of expression.

When you choose some types of censorship to approve, with no qualifications on how you got there, you’re implicitly granting government the power to target and censor any speech. That’s not something it should have, even if you think the ultimate end of the censorship is right.

But this is only one in a long line of corruptions of power that progressivism has pushed over the last century. Progressives tried to give the government the power of forced castrations; public eugenics targeting blacks, the poor, and those with special needs; and controls on wages, guns, and other areas that amounted to attacks on minorities.

The real goal should be to ensure government never gets this power, hence the presence of the Constitution. Kept unchecked, progressivism will create a tyrannical government with unlimited control.

California is only the latest example. It won’t be the last.

If you want to see the future of progressive censorship, look to the United Kingdom, where people face imprisonment over posts on Instagram, and where their gun bans have devolved into bans on knives.

The state’s pursuit of power never ends. Check it early, and often.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.