A Consensus, per Wikipedia, is: “a group decision making process that seeks not only the agreement of most participants but also the resolution or mitigation of minority objections.” Put another way, Consensus is not the end-state of an agreement, but the means or process by which an agreement may be reached through the resolution of opposing viewpoints. Thus, Consensus is a means of dispute resolution, but it is not the only one. There is also Surrender (one side gives in to the viewpoint of the other), Tyranny (the stronger successfully imposes its viewpoint over the weaker) and Strife (the dispute is resolved by blood). While resolution of opposing viewpoints is obtainable through Surrender, Tyranny or Strife, we need the moral clarity to discern those types of resolution from an agreement by Consensus. Only the latter is consistent with the freedom and security provided by our nation to its citizens.
This nation arose from a Strife-resolved dispute over representative government. After King George declined Consensus on the Crown’s right to unilaterally tax the Colonies, he sought resolution through Tyranny, leaving the Colonies with the choice of Surrender or Strife. Having chosen the latter, and paying due cost in blood, our founding fathers designed a governing system that so limited and divided power that Consensus was the best option of dispute resolution. While not perfect, the Constitution is the best arrangement yet devised to avoid Strife, thwart Tyranny and force Surrender upon no man who seeks only the pursuit of happiness and individual liberty. To funnel dispute towards Consensus, our fathers crafted governing institutions that were deliberative and premised upon the free and open debate that fuels the process.
Recognizing that Consensus would fail if debate were not kept unfettered and adversarial, our wise fathers made it clear by adding a restriction that they actually thought superfluous, given the limited nature of the Constitution. Nonetheless, as a belt to suspenders, they added the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. I contend our fathers knew when they wrote this that the process of Consensus was hot and messy. I think they knew that enshrining in first order the right of its citizens to engage in hot debate would come at the Cost of hard words and hurt feelings. I believe that they weighed the Cost and found it the far lesser evil to the cost in blood of Strife, the cost in freedom of Tyranny and the cost of right relation with divine providence that is inherent in all forms of Surrender. Because they were adults, they recognized that their choice was hard and no option was perfect. So they made an adult decision, the result of which has been a guarantee of freedom, prosperity and security that the world had never before seen. We are the beneficiaries of that adult decision and we should honor it every day in our respect of each man’s right to make his best argument--particularly when we do not like what he has to say.
When I was asked to act as defense counsel in a lawsuit seeking to impose speech restrictions upon people who assemble at abortionists’ gates in hopes of persuading the doctors and mothers not to terminate the lives of the unborn, I hesitated, and not only because I would not be paid for my efforts. I also had doubts about the hot and messy way these people went about their work. While I truly believed in the high sounding words I wrote in the paragraphs above, I did not much like being confronted with the hard truth of their application. Pasha of the sanitized debates of the courtroom, I found the rams horns and fetus posters of the abortion debate to be beneath my, well, dignity. But ultimately, I came to see it this way: while I might softly cajole my little daughter not to touch a hot burner while we sat together watching Sponge Bob in the den, how loud would I yell in the kitchen with her little hand inches from the flame? Would I scream at her? Would I throw a rolling pin at her? Anything would be better than watching her burned. It is a matter of context.
Thus, I came to believe, the volume and heat of the words used in the resolution of any dispute are a matter of context that is open to debate, but not a debate that can lead to their restriction by the those in opposition. I saw that what the abortionist in the lawsuit I was asked to defend wanted above all was silence, and that was something I had to stand against—despite my lawyerly feelings about the constitutionally protected right to abort a baby, or my personal feelings about the manner in which those in opposition exercised their constitutionally protected right to object to the abortion of a baby. In short, I was either willing to defend the sanctity of unfettered debate in its messy application, or I was only a believer in it theoretically and safely from afar. I chose the former.
And the foregoing is the argument I made in court. And it is the argument that the judge found more compelling than the abortionist’s appeal for silence. I anticipate that it is an argument that freedom-loving people will have to continue to make, whether the dispute at issue is abortion, taxes, school choice or bubblegum because America is becoming a difficult place to have a debate, regardless of the issue. In elevating misguided notions of “tolerance” to the highest form of civic virtue, we are fostering a Soft Tyranny of Silence where Consensus by debate is discredited as “mean spirited” and where Surrender or Strife become the only options. This is not the America our forefathers shed blood for. This is not the America we should pass to our children. This will be our undoing.
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