Here’s the latest from the crossroads of faith, media & culture: 09/14/22
Passing Starr. Ken Starr is most known as the independent counsel whose investigation of President Clinton in the nineties led to only the second impeachment of a president in U.S. history, the first against Andrew Johnson over 100 years earlier. Alas, we have had two more since then – both aimed at former President Trump. I spoke with Mr. Starr last October about his book Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty (Encounter Books). Among other contemporary issues, our conversation turned to the subject of the use of presidential impeachment as a potential political tool as opposed to a constitutional remedy. I found his remarks to be thoughtful and relevant.
Here’s the latest from the crossroads of faith, media & culture: 05/10/21
KS: Absolutely. In fact, it was forty years ago that the Supreme Court of the United States found a great formula. It’s not a patented formula but it is a mighty and enduring formula.
The setting was a Christian group of college students who wanted to form a club – and they did – to then meet on the campus of the University of Missouri at Kansas City, a public institution, but the university said “No, you can’t meet as an organized Christian group. We are not against you. It’s just that we would be violating the Establishment Clause of the First Amendment if we did that.” The Supreme Court of the United States overwhelmingly said “No, University of Missouri at Kansas City. You’re quite wrong.” The Court used the combination of freedom of speech and free exercise of religion to strike a mighty blow in favor of religious liberty. And that is one of the great principles – the idea of religious liberty (and) the idea that you can’t single out religious speech on college campuses (or) on high school campuses and say “We want to exclude YOU from the marketplace of ideas. Go to your church to express your views. Don’t express your views on the school grounds.” And the Supreme Court of the United States just decided – just weeks ago – a case that involved that very same principle but that, as soon as the Evangelical Christian student in that case filed a lawsuit challenging the speech code of that public college in Georgia, the college changed its mind. It changed its policy. These great principles are so powerful they didn’t even want to wait for the district court to get to the case. They changed it virtually overnight. These principles – these great principles of freedom – are very powerful. They’re very efficacious. And they are on the side of religious liberty. We win these cases – not in the culture. The culture is hostile but we win it in the courthouse – certainly in the Supreme Court of the United States.
JWK: But when the culture is hostile enough doesn’t that have an impact on politics – and even court rulings?
KS: Yes. There’s no question. There is – shall I say? – a symbiotic relationship. Law arises out of the culture but, at the same time, the law shapes culture. Just as Magna Carta shaped the future of Anglo-American liberty. At that meadow at Runnymede there were those powerful ideas of the human dignity of every person, of the sacrosanct nature the home. Those principles were there in English practice but now embodied in a document – and that’s really what has happened in the American experience. On our side of the Atlantic in North America, we’ve embodied these great principles of freedom in our Constitution and in our Bill of Rights.
So, the culture may set its face against…freedom of speech. Think of Cancel Culture. In the book I devote a chapter to Cancel Culture. Cancel Culture is utterly inconsistent with who we are as a free people and a constitutional democracy. So, shame on those who would say we’re going to cancel out speech with which we disagree. Shame on them but, okay, if they’re going to act that way “Welcome to court. We will see you in court and we will win in court because Cancel Culture is inimical to the idea of a free society.
JWK: How much of a complication is Big Tech in all of this? On the one hand it’s very clear that the government can’t overreach but, on the other hand, you have the Big Tech companies – some might call them oligarchs – who can cancel you. How do you deal with that?
KS: They can and do. We don’t have a great answer for that at this stage. Full disclosure, I’m involved in antitrust, in my legal capacity, against Google. Other antitrust actions are being brought to break up these companies and provide structural relief, essentially, for friends of freedom.
Congress, for its part, has a very important role to play in analyzing one particular provision that is a very sensible provision but it’s being overused. It’s called Section 230. By virtue of Section 230, Facebook and other platforms can say “Oh, look. We’ve got to take certain kinds of actions to protect our platform and so forth.” It’s a huge policy debate. Congress needs to step in. Here, I think, both parties seem to be in agreement that Big Tech is simply too powerful and so, like the robber barons a century ago, we need the antitrust laws to step in and to say “No, you’ve gone too far.”
The other thing, of course, is that when you have these kinds of bottlenecks and – as I see it – abuses of power – we need for the marketplace and the free society to step in.
JWK: It would seem to me that these companies could be treated as utilities. For example, a phone company can’t ban you from using their service because of your expressed political beliefs but these monopolistic social media giants can.
KS: Increasingly as we are communicating through social media, that argument needs to be carefully listened to – but it’s not the same as a utility. It really isn’t – because there are alternative methods of communicating. I think you used a really good term earlier (referring to) the oligarchy. The idea that several of these platforms are so powerful just cries out for some kind of policy solution but it hasn’t quite reached the stage of a monopoly (where) “Well, I got to deal with the utility company because that’s the only provider in town.” By the way, even there we see in some of the supposedly “natural monopoly companies,” a dynamic free economy can rise through entrepreneurial (innovation) to…find another kind of source for energy (or) power.
KS: Exactly. I’m with you in spirit on that one, John, absolutely.
JWK: You talk about how the Supreme Court protects us from government – and, hopefully, corporate – overreach. Are you at all concerned about the threat of court packing that seems to be in the air now?KS: I am concerned. I’m deeply concerned. President Biden, as a United States senator, wisely (called) the suggestion when it arose some years ago, a “boneheaded idea.” Well, I wish he would stand up to these pressures within his own party (today) and just say “This is a boneheaded idea.” We don’t need a commission (to study the issue) but that’s what we’ve got. The American people need (political leaders) who care about our liberties protected so assiduously by the Supreme Court of the United States. Think about Brown vs. Board of Education. What a great breakthrough decision that was – to demand the elimination of our sort of quasi-apartheid society in all too many parts of the country. The Supreme Court, of course, gets decisions wrong – and sometimes the decisions are terribly wrong – but the Court operates efficiently. It does not have some huge backlog with which it’s dealing – “Oh, they need help at the Supreme Court!” No, this is entirely about results politics and, frankly, a radical agenda. Sensible people…should say “I agree with Ruth Bader Ginzburg. I agree with Justice Stephen Breyer.” The Court operates well. The idea of packing the court is completely unacceptable. We need to stand up and be heard.
JWK: Do you think there should actually be a constitutional amendment locking the number at nine so these kinds of political games and threats can’t periodically happen?
KS: Well, the United States Constitution has been amended only 27 times and ten came in the first two years of our operation as a constitutional republic. No, I don’t think it’s necessary. I think this can be fought out fair and square – and successfully – on the political front. I just have such respect for the Constitution and the amendment process that I just don’t think it’s necessary. It’s also a very cumbersome process, as you know, to seek to amend America’s constitution. And that’s rightly so. It should be difficult.
JWK: Do you think the mere threat of packing the Court – even if they don’t actually do it – intimidates the Court? You know, “Do what we want you to do or we may pack the court.”
KS: We have to be concerned about that. Threats against the Court are, frankly, so inimical to who we are as a free people with separated powers and the idea of an independent judiciary. We can only hope and pray that our justices will stand firm. As the apostle Paul said “Stand firm. Be courageous.” Aristotle (and) the ancients taught us the importance of courage as the foundational virtue because it makes the other virtues possible.
So, I would just say to the world encourage your neighbors to say, in fact, “We want our Supreme Court justices to enjoy independence of judgment (and to be shielded) from the political process.” They (the justices) need to just tune out. That is just do your work and allow these winds to continue blowing. It may be hard to ignore but that’s why you have Article 3 of the Constitution – independence from the political process. So, let’s just hope that our justices will just be men and women of good courage.
JWK: How much do you think the really extreme political division that exists in our country right now is a threat to religious freedom and freedom of speech? It seems like we don’t even really have the same goals anymore. It used to be that we’d argue over the best way of achieving our common goals. Now, it seems like the goals themselves are different.
KS: Yes. We need a reeducation, don’t we? Because there are too many voices at different places on the political spectrum that simply say “I’m going to shout you down…I disagree with you and I don’t respect you.” Frankly, we need a voice of Mr. Lincoln at this stage – who, in a time of the deepest division and bloodshed in the country, called magnanimously for a healing because of our commitment to what he called “the new birth of freedom.” We need at third birth of freedom! And a commitment to the values that our country stands for. Then, someone (can say) “I don’t agree that our (primary) value should be freedom. I think our (primary) value should be equality. I think everyone should make the same amount of money. I think college should be free.”…Just call it a very different kind of agenda. Let’s call it a new form of collectivism, whatever. I don’t like to engage in rhetorical hyperbole but, if that’s the vision, equality at the expense of freedom, then we need to say “Let’s have a conversation.” Do we want to be a free people or do we want to simply say “I just want equal results regardless”? To me, the American people will – through their history – (choose) their “Better Angels,” as Mr. Lincoln would say.
Of course, we want equal opportunity for all. We want every person to be treated with human dignity, kindness and respect but we are not going to have the government come in – using its coercive powers – to change the nature of our free society. That’s the great debate.
JWK: You’re, of course, famous for your role in the impeachment of President Clinton. I think you more or less proved your case – that he lied under oath, even though he was acquitted by the Senate. Now that impeachment has recently been used not once but twice against President Trump, are you concerned that the impeachment process is being abused as a means of settling political differences?
KS: Yes, I am. I was privileged to be a small part of President Trump’s legal team on the first round of impeachment. In that process I gave a presentation on the floor of the Senate to the affect that we have been living in the Age of Impeachment since Richard Nixon and we need to close that chapter in American history. Impeachment has now become a political tool of first resort as opposed to a tool of last resort. So, yes, it’s definitely being overused.
I’m very thankful that, even though President Biden has issued executive orders that are subject to criticism and to litigation, I don’t know of a single voice on the Republican side of the aisle that has said we need to impeach President Biden. Of course, we don’t need to impeach President Biden. We have elections in this country. Let’s close the chapter, I hope, on impeachment. Let’s just see what happens over these next two years. Are there going to be calls for his impeachment – and, if not, then when, as will eventually happen, there is a Republican president, if the calls immediately come – as they did for President Trump – for impeachment then I think the American people should just say “Shame on you! You’re just trying to tear this country apart! Why don’t you just give this new president a chance and stop with the impeachment?” And, by the way, there is an alternative…that was discussed (but) just didn’t get legs either with President Clinton or with President Trump and that is a resolution of censure. For example, with President Trump Round One – on his call to the President of the Ukraine – I’ve never defended that call but I didn’t think it was impeachable. I thought that it was very farfetched to suggest that the President of the United States should be removed from office for that call which I thought was…ill-advised – but presidents make ill-advised judgments all the time. So, if that’s the hair trigger that we have, then we really are in an era of unfortunate instability.
In any event, I think if the impeachment process continues – I don’t think it will in this unabated sense – then the American people will just tune out. It just will not be an issue. I mean how much of an issue was President Trump’s impeachment in the presidential election of 2020?…I don’t think it entered the debates at all.
JWK: Speaking of the election, it seems to me that the security of that election has joined the ever-increasing list of issues – including abortion and climate change – about which you’re essentially not allowed to have disapproved opinions. To be frank, a lot of people believe the pandemic negatively impacted the security and integrity of last November’s election but feel they’re basically not allowed to express that opinion out loud. Whether they’re right or wrong, that’s not exactly free speech.
KS: This is where courage is called for. Of course, you’re allowed that opinion and shame on those who try to stifle diversity of opinion – speaking of diversity – in a pluralistic society. (We don’t have to) all feel exactly the same way on the burning issues of our time – whatever those issues are. Abortion? We’re not gonna all agree on that. Religious activity on public campuses? We’re not all going to agree on that but we’re entitled to our opinion. As the old saying (goes) “I may not agree with you but I will fight to the death for your ability to have that opinion.” Now, we need to say “express that opinion.” We need courage…especially at the universities (and) for superintendents or high schools and so forth to stand up and be counted for freedom! Courage is the foundational virtue but it’s a hard virtue because “Oh, people might not like what I have to say.” Well, that’s just tough. Develop another layer of skin – of epidermis -and march on and have the courage and strength of your convictions.
KS: Yes, I think you’re making a very good point. There was a colossal failure in many of the large cities of the United States. Not all of them. There was, for example, in Detroit, (where) the police chief just said “We’re not gonna have any of that.” He happens to be African American so no one could play, as it were, the “Race Card.” It’s the responsibility of government to provide, what the Founding Generation called in the preamble of the Constitution, “domestic tranquility.” Sometimes the term “law and order” sounds harsh and repressive but let’s just talk about the “Peaceful Society.” Let’s invoke Martin Luther King Jr. who made it clear by virtue of (naming his organization) the Southern Christian Leadership Conference that their acts of civil disobedience would be entirely peaceful. Violence would only come from the oppressors. It would not come from the oppressed. We have moved…far from the vision of Dr. King as a society.
Shame on those local law enforcement officials who said “We’re going to stand down.” But shame, above all, on the mayors who allowed this to go on.
And shame of some of our friends in the media – (that) almost now iconic scene in the worst possible sense with a reporter from one of the main networks saying the protests are “largely peaceful” (while) in the back were businesses going up in flames. This mendacity, this utter lack of integrity in reporting on what went on and then the rationalization – “Oh, well, they’re just expressing their views.” Excuse me, you’re ruining the lives and livelihood of people who have worked hard to build their businesses and Media, you’re not only countenancing it by your reporting…you’re encouraging it indirectly.
But, above all, it comes back to the mayor. The mayor of the city has to stand firm and say “In this city there will be obedience to the law. There will be not be destruction of property, endangering lives and ruining livelihoods. That’s not who we are here in fill in the blank.” I’ll just choose Portland, Oregon. Here’s Antifa trying to burn down (Mayor Ted Wheeler‘s) condo and he was very, very – shall I say to draw from the past – Neville Chamberlain-like crying “Peace” when there was no peace and, essentially, coddling these folks who were engaged in violent, destructive efforts. The American people just will not have that. I would say 75 to 80 percent – and maybe more than that – will not have any of that kind of nonsense and just say “No! Mayor do you your job! Chief of Police, do your job!…Go forward and put a stop to violence and mayhem.”
KS: First, let’s educate ourselves. We expect our armed forces to be trained if they’re going to go into battle. We’ve got to train ourselves. There’s been a collapse of civic education in the United States. Those are the words of Justice Sandra Day O’Connor, echoed by Justice Stephen Breyer. We’ve got to educate ourselves and we’ve got to now transmit the education of our culture of freedom to the rising generation. So that’s Step One. We educate ourselves.
And then Number Two, having educated ourselves, (we must) know how to spot threats to liberty when they first arise and move forward. As citizens, we can speak to the school board. We can speak to the city council. And then (like) the case I mentioned involving the Georgia student, you call a law firm (like)…the Alliance Defending Freedom, First Liberty (or) the Beckett Fund. There are wonderful groups that will come in free of charge and will handle these cases and will be victorious at the end of the day, by God’s grace and by hard work.
Those are the steps – educate ourselves (and) be willing to engage the culture – even if it’s in a very quiet way over a cup of coffee with your school board member. Educate that school board member about the challenges that are coming. For example, the idea of radically reforming (or more precisely) radically dismantling the very idea of America’s culture of liberty through the 1619 Project of studying history solely through the lens of slavery – which is a terrible scourge and just a completely contemptible sin against humanity, a crime against humanity – but that’s not America. That’s not America at all. It’s a part of our history which we acknowledge and repent of but that’s now who we are as a free people.
We have to be people of courage now more than ever. We’re not facing an external enemy that is threatening to bring fire and brimstone on our heads like the evil empire of the Soviet Union. We certainly do have a problem with China. There’s no question about that. (There are) huge problems with China and its genocidal policies directed against the Uyghur Muslims…That is a huge issue but our primary battle, as I see it, is right here at home – to protect and defend our culture of freedom. It’s under assault.
JWK: You’ve given us a lot to think about. Is there anything else you’d like to add?
KS: I would just say I hope this book will serve as a tool. That’s what it was designed to be. It’s a tool for grandparents, it’s a tool for parents and, frankly, it’s a tool for high school/future college students. Before they head to college I think they need to be armed – in the peaceful and loving sense – to engage in the battle of ideas. I hope this book will be a tool for doing exactly that.
John W. Kennedy is a writer, producer and media development consultant specializing in television and movie projects that uphold positive timeless values, including trust in God.
Encourage one another and build each other up – 1 Thessalonians 5:11
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