Don’t Use The Right’s Assumptions To Make The Left’s Arguments

Sooner or later, anyone trying to advance a political cause will encounter the same difficult question: in trying to persuade people, should I make the argument most likely to be effective, or just say what I actually believe? For example, if I oppose the death penalty, and I want to convince other people to oppose the death penalty, my instinct might be to simply tell them my honest stance, which is that I think it’s never right to kill an unarmed person when you could use other means to stop them from hurting people. But if most people don’t share that belief, and it will be hard to get them to agree with me, I might decide to use different arguments in making my public case against the death penalty. I might point to the fact that the death penalty is costly, racially biased, and risks executing innocent people, because I assume that those aspects of it are more likely to convince people to oppose it.

Tactically, it’s important to think about “what will win the audience” rather than “what I’d really like to say if I could just let loose.” After all, you’re trying to accomplish something: the arguments I should use against the death penalty are the ones most likely to bring about the end of the death penalty. At the same time, it’s easy to see how this kind of reasoning could lead us to be dishonest: we’d make an argument we didn’t believe if we thought it would persuade someone to support something that we do believe in.

Public interest lawyers are constantly having to do this. The immigration lawyer whose client is indefinitely detained may have to go in front of the Supreme Court and argue that a particular statute requires that the client receive a bail hearing. The lawyer makes this argument not because she necessarily believes that the statute requires this, but because she is trying to get an undocumented mother released from a detention facility so she can take care of her kids—and that means making whatever legal arguments are necessary. Law often feels dishonest because almost nobody in the courtroom believes what they are saying: the client’s lawyer argues that the statute clearly helps the client, the state’s lawyer argues that it doesn’t, and the judge comes up with whatever decision on the statute is necessary to achieve an outcome the judge likes. Sometimes lawyers deeply believe the arguments they are making, but they’re looking for the arguments that work, not the ones they personally agree with. If I had a client who has been in jail 50 years for a crime he committed as a teen, what I might really want to say to a judge is “50 years is far too long to keep someone in prison, if you have a shred of a conscience you will let this man out.” Instead, I might end up arguing that the parole board improperly failed to consider Factor X in denying my client’s petition, and prior court precedents require Factor X to be considered. In reality, I couldn’t give a fig about Factor X. I just want an old man to be free.

Arguments of expedience are frequently necessary if you’re going to do any good for anybody. But they’re also dangerous, because if you make an argument you don’t necessarily agree with, it might produce consequences you don’t agree with either. There’s a useful example of this in the recent Intercept debate between Glenn Greenwald and James Risen over whether Donald Trump colluded with Russia. Greenwald and Risen are disagreeing over the question of whether Trump has committed “treason.” Risen believes the allegations constitute a “textbook” case of treason. When Greenwald replies that legally, treason only consists of aiding America’s wartime enemies, Risen draws a distinction between legal usage and common usage:

GREENWALD: It’s completely not a textbook definition of treason, and it’s extremely important to be careful about what treason does and doesn’t mean…. [T]he Constitution defines treason and it says, “Treason against United States shall consist only in levying war against them or in that adhering to their enemies, giving them aid and comfort.” […]

RISEN: If you are a presidential candidate, you collaborate with a foreign government, granted, it’s not an enemy of the United States and under the legal definition of treason, that may be one reason why it would never be considered treason, as you pointed out.

But the idea that if you’re a presidential candidate and you get elected by colluding with an adversary of the United States, I think most Americans would think in the common usage of the term that that would be treason. […]

GREENWALD: There is no definition of treason or traitor besides the legal definition.

RISEN: … I think you’re wrong about that. […] I think there’s a common usage and a legal usage.

GREENWALD: I think it’s a really dangerous standard, for you to say, “OK, well maybe treason and being a traitor doesn’t apply in the legal sense, but a lot of Americans think that it would apply in a colloquial sense.” You know what? I can guarantee you, and I’m sure there’s polling to support this in fact, in 2006 and 2007 a lot of Americans believed that the New York Times was guilty of treason.

Risen wants to use the word “treason” to describe Donald Trump’s behavior. But it’s obvious that Trump hasn’t legally committed treason, no matter what evidence of collusion there may be, because the United States is not at war with Russia. (Yet!) So Risen says that the technical legal meaning of treason is narrower than its common use, and we can evaluate Trump by the common use standard. But here we see the “arguments of convenience” problem. As Greenwald points out in his reply, if we defer to “common usage” in determining who the traitors are, then Donald Trump won’t be the only traitor. Deferring to how people use the word, rather than what the law says, increases the risk that ordinary people, including journalists, will be labeled traitors if public opinion turns against them. At the moment we may be tempted to broaden our definition so that we accuse Donald Trump of treason. But would we be happy with that broad definition in other contexts? If the charge of “treason” were levied at left-wing dissidents during a time of war, as it so often has been, we would be the first ones insisting that the word should be applied in its strictest sense.

When we make arguments of convenience, we have to be very careful about what they assume and what they imply. People on the left frequently deploy premises that they don’t necessarily believe, or use rhetoric that assumes conservative values rather than progressive ones. My colleague Brianna Rennix has explained how this often occurs in debates about immigration. Liberals who wish to create a path to citizenship for unauthorized immigrants will argue that immigrants are good for the economy, that they commit crimes at low rates, and that they are doing jobs Americans won’t do. But consider the implications of these arguments. If we make the case for immigrants on the basis of their economic productivity, what about those who aren’t economically productive like the disabled and elderly? Do we want to affirm a standard that measures people by how much they grow the economy for the rest of us, rather than whether letting them in is morally just and helpful to the immigrants themselves? As for crime rates, what if it turned out that certain populations of immigrants committed crimes at somewhat higher rates than native-born citizens? Would that then justify expelling them? Finally, “jobs Americans won’t do” is a curious phrase: if Americans won’t do them, it means they’re miserable and exploitative jobs, and it’s strange to argue that we should let people in so that we can exploit them and pay them wages we wouldn’t pay ourselves. (Brianna goes into more detail about this in our new print issue.)

Liberals can fall into a trap when trying to respond to the right. A conservative candidate says “I’m the candidate of low taxes and small government,” and the liberal candidate replies “Well, I’m the real candidate of low taxes and small government.” We actually saw this kind of messaging when the Republicans passed their massive corporate tax giveaway: the Democratic response was, in part, that the Republicans were actually raising taxes on middle-class people and disguising it as a tax cut. Regardless of whether that was true, liberals should be very careful to avoid accidentally affirming the idea that tax cuts are a wonderful thing that everyone should have. When a Republican says “I want to cut your taxes and they want to raise them,” if you respond “No, they want to raise your taxes and I want to cut them,” we are all implicitly adopting the same principle, namely that politics should be a competition to see who can cut taxes the most.

As I’ve documented, Bill Clinton is an example of someone who has used arguments of convenience throughout his political career, to great effect. He campaigned using some classically conservative rhetoric: he was going to be tough on crime and “reform” welfare. His argument was that while Republicans promised these things, they didn’t do them, whereas he would do them. This left his Republican opponents floundering, and worked very well for Bill Clinton. Unfortunately, it didn’t work very well for progressive values: the bipartisan consensus around crime and welfare led to a vast expansion of America’s prisons and the withdrawal of benefits from needy families.

Let me give a number of other examples of ways in which the left can make arguments that ostensibly support left political goals, but depend on assumptions that we don’t really believe or wouldn’t want applied in other contexts:

Giving prisoners access to education is not only helpful to them, but it also saves states money by reducing the likelihood that they will re-offend after being released. The case for prison education often touts this cost-saving effect. Who doesn’t want to save money? But it’s important to think what would happen if the data went the other way: what if it didn’t save money? “Cost-saving” is like “tax cuts”: we may not actually want to reduce government spending, and by making these pieces of rhetoric seem like unqualified positives, we may be making it harder to advocate for increases in spending elsewhere. A humane prison will probably end up being a costly prison. After all, the quickest way to save costs on prison meals is to give inmates half as much food. Or what about medicine? We could save money by hiring an incompetent and barbaric doctor, but we shouldn’t. (Similarly, when people talk about “per-patient healthcare spending” in the U.S., it’s always important to relate the spending to the outcomes. It’s not necessarily bad for a country to spend a lot on healthcare, what matters is whether we’re getting anything for our money.)

Guns and mental illness — After a shooting, there are often calls to stop “crazy people” from getting guns, with many advocating that the mentally ill shouldn’t be able to buy weapons. But this upholds a view of mental illness, and the government’s role in supervising it, that the left would generally be leery of. Do we really want to give the state the power to determine who the unfit people are, and to put them on a list? Do we want to blur the lines between all mentally ill people, in a way that lumps the chronically depressed in with the psychopathic? While one part of the left is trying to make sure unstable people don’t get guns, another part is trying to reduce the stigma against unstable people.

Trump Is An Aberrant Departure From Our Good Normal Presidency — When people describe Donald Trump’s actions as unprecedented, and long for a return to normalcy, they deploy a propagandistic and overly rosy view of history. In fact, prior presidents were just as vulgar, amoral, and warlike, even if they adopted a much more genteel public presentation. Because Donald Trump is so horrifying, it’s very tempting to throw every kind of criticism we can at him. That can end up with the strange outcome of the left mocking someone for being fat and a draft dodger, even though we supposedly have a principled opposition to that kind of thing. It results in casual homophobia, like graphics of Trump making out with Putin. And it results in defending horrendous institutions like the FBI and CIA if they appear to do anything that undermines Trump. (In the book Anatomy of a Monstrosity , I go through a number of “bad ways to criticize Trump” and suggest some better ones.)

Drug-Testing Welfare Applicants — Some conservative lawmakers have tried to impose drug tests on anyone applying for public benefits. Consider the following response: “We shouldn’t drug test welfare applicants because studies show that when you impose such drug tests, you hardly find any positives. Welfare applicants don’t do drugs in large numbers and so such tests are a waste of money.” This might seem like a sensible liberal argument. But it’s flawed: the reason there aren’t many positives is probably partly because the people who do drugs don’t apply when they know they’ll be tested, which achieves the lawmaker’s purpose. Furthermore, what if there were high rates of drug use? The real argument the left should make is that it doesn’t make a difference whether a person is on drugs: we believe in universal guarantees of subsistence. Otherwise, you suggest that it might well be reasonable to deny welfare applicants who do drugs, and your only claim is that empirically, these applicants are clean.

Same-Sex Marriage — In arguing for same-sex marriage, many progressives ended up unconsciously repeating social conservatives’ arguments about the importance of marriage and the inferiority of civil unions. There was a strong effort to prove that same-sex couples were wholesome and harmless and just like everybody else. But we have to be careful not to throw people who aren’t just like everybody else under the bus. When conservatives said “Same-sex marriages are not as stable as heterosexual ones, and the children do worse,” the natural instinct was to reply “Yes they are, and no they don’t.” But while this was true, the case for same-sex marriage shouldn’t have rested on empirical facts about gay people’s moral upstandingness: it was about equal access to a social institution.

The Google Memo Guy — When James Damore was fired from Google for sending his coworkers an unsolicited memo about gender differences, it was tempting to celebrate. After all, he was an ass. He deliberately antagonized those he worked with and then insisted that he didn’t need to show any “empathy.” But the left also opposes at-will employment, and believes people should be entitled to strong job protections. Indeed, California has such protections, and Damore is now claiming that he was fired because of his political opinions. We can laugh at Damore’s legal claims, but don’t we believe in the principle underlying the law?

No Empathy For Trump Voters — After the 2016 election, many disgusted progressives treated Trump voters as truly deplorable, irredeemably bigoted and not worth talking to. But as my colleague Briahna Joy Gray points out , there are both principled and pragmatic reasons for engaging with people you find horrible. After all, when it comes to criminal defendants, I adopt the leftist position that people can change and be rehabilitated, even if they have done something horrendous. If I apply that to murder, surely I should apply it to voting for Trump? Writing people off for doing morally indefensible things applies the punitive logic leftists oppose in criminal justice, and if the logic is bad in one realm it’s bad in every realm.

Larry Nassar’s Judge — Nassar committed horrific sex crimes against young girls on an almost unimaginable scale, and the judge in his case was rightly celebrated for her compassion for the victims. But at Nassar’s sentencing, the judge said that she wished she could sentence him to be victimized in the way he had victimized others. One of the core principles of leftist justice is that we’re against needless cruelty like sentencing someone to be raped. This also raises questions for cases much less extreme than Nassar’s: how do we apply our general belief in “rehabilitation” to sex crimes? How do we take justice for victims seriously while avoiding the “lock him up and throw away the key” attitude that is a core part of “law and order” thinking? (My colleague Vanessa A. Bee has some useful reflections on this.)

“Made In America” — There are countless examples of leftists accidentally endorsing the right-wing notion that people in other countries simply don’t matter as much as Americans, or that we have a greater duty to Americans than people elsewhere in the world. I was recently reading Bernie Sanders’ generally excellent book Our Revolution, and was struck by a passage in which he laments the fact that the Capitol Hill gift shop was selling products made in China. I sympathize with efforts to avoid Chinese manufacturing because workers are not paid well enough, but I find “Made In America” a strange thing to boast about. Nations are a fiction, the existence of which causes horrific wars, and it’s important to avoid adopting and encouraging a nationalistic worldview.

The Founders / “Dissent Is Patriotic” — Similarly, paeans to the Founding Fathers, and appeals to “patriotism” (e.g. “Trump isn’t a patriot,” or “Liberals are the real patriots) deploy nationalistic values that should be rejected. There’s a similar trap in Constitution-worship: a conservative says “the Constitution protects my right to refuse to bake gay wedding cakes” (or own bazookas, or what have you) and we end up having an argument about whether the Constitution does or does not protect that thing, rather than whether you should do that thing.

“Freedom of Choice” — Sometimes, when people on the left talk about why sex work should be decriminalized, they suggest that sex work is “not oppressive” or “not exploitative” and that women’s choices should be deferred to. We should be careful here, though: obviously women should be deferred to about their own lives, and throwing people in jail for trying to make a living is barbaric . Yet elsewhere the left argues strongly that all low-wage work is “not freely chosen” and is “exploitative,” because people wouldn’t choose to do it if they didn’t need the money. When we talk about women’s “choices” to participate in sex work we need to avoid endorsing the libertarian theory of choice, which says that all non-forced work is freely chosen. Many people do freely choose their occupations, but whether their choices are free depends on what their other options are. Sex work is no different than other work in this respect, but that doesn’t so much mean it’s good as that it’s “no worse.”

“Do Your Job” — when Kentucky county clerk Kim Davis refused to grant same-sex marriage licenses, many liberals criticized her for failing to do her job and follow the law. Davis said her conscience forbade her from doing so. Liberals replied that it didn’t matter what her personal beliefs were, she had a job and she ought to do it. But if that argument is to be made, we need to make sure we’re comfortable with it in other contexts. If we had a government job, and were asked to follow a law we found unjust, should we? And should we be fired if we refuse? The left’s problem with Davis shouldn’t have been that she didn’t do her job or follow the law, since in other circumstances we would probably want broad latitude for people to avoid doing something that they objected to. The problem was, rather, that Davis was discriminating against gay people, and discriminating against gay people is wrong. That’s the principle we should be affirming, not “follow the law.”

The Rule of Law more broadly — It’s important to be careful when criticizing people for breaking the law, or advocating that the law be upheld. Sometimes laws are bad, and the lawbreakers are the good guys (e.g. MLK ). Even when we condemn a country’s leadership for “flagrantly violating international law,” we need to remember that what matters is that what they did was wrong, not that it was illegal. Noam Chomsky has an excellent quote about this as it pertains to examining the legality of the Vietnam War: “ It is important to be clear about the issues that are at stake in an inquiry into the legality of the American war in Indochina. It is not in dispute, among rational people with some concern for the facts, that the United States command is responsible for major crimes in the layman’s sense of this term. What we may reasonably ask is whether the acts that are documented beyond dispute are also crimes in the lawyer’s sense, recognizing that when we raise this question, it is not the war that is on trial but the law. We are asking–if we are serious–whether the law is a sufficiently precise and delicate instrument so that it can label a monstrous crime as a violation of law. Similarly, in considering the legality of the intervention itself (apart from the means employed), a person who is serious about the matter is not examining the propriety of the act but rather the adequacy of the law. Suppose we were to determine that international law does not condemn the United States intervention as criminal in the technical sense. Then a rational person will regard the law, so understood, with all the respect accorded to the divine right of kings.” It’s often the law itself that should be on trial, then, and whether there is moral force behind the charge that something is “illegal” depends on what the law is and whether that law is any good. The New York Times “Ethicist” once recommended turning in your neighbors to ICE for immigration law violations, because laws are important. But we can’t discuss whether to defer to the law without discussing whether the law is just. (Norman Finkelstein has made the point , in criticizing BDS, that if you invoke “international law” as your grounds for condemning something, you need to apply it consistently to all parties including yourself, because otherwise it’s not clear what “international law” is other than convenient rhetoric to throw at enemies.)

Now, not all of these cases involve “right-wing” premises; some of them are just cases where the principle we endorse in one case breaks down when applied to another. There are lots more cases where we have a tendency to be partisan and inconsistent: tolerating gendered attacks on Sarah Palin that would be condemned if applied to Hillary Clinton, exonerating Obama for uses of executive power we would have deplored if done by Bush. Briahna Joy Gray has previously talked about some of the inconsistency in the way race and gender identity is discussed on the left: supporting candidates on the basis of their identity can lead one to endorse those who ultimately harm the progressive cause through their actions.

Plenty of people who make these arguments probably do actually believe in them, because they quite sincerely subscribe to the values of patriotism, punitiveness, and low taxes. Still, there is a common tendency on the left to make points that don’t support our agenda very well. They often assume that Americans are inherently conservative, and make their pitches accordingly. The trouble with that is twofold: (1) it means you’ll never get around to presenting your actual values, so nobody will be persuaded to share them and (2) it makes you sound really dishonest and inconsistent. Ultimately, arguments of convenience sacrifice the long-term goal for short-term success: the Democratic candidate may squeak into office by insisting that the Republican will raise your taxes, but if we want to fund Medicare-for-All and debt-free college we need to be making the honest, difficult case for tax raises. You can win elections as a Democrat lifting bits of the Republican platform; it worked for Bill Clinton, after all. But everyone will know you’re being a bit of a slippery eel, and you may have wedded yourself to a series of horrible proposals that will hurt people. Instead, the best policy is to be consistent and principled, even if that means sounding radical, and even if some people are turned off. Ultimately, there is no substitute for being true to yourself.

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