It would helpful to see an article by Mr. Kalb explaining the meaning of “zero tolerance” from the point of view of the general critique of liberalism. Clearly it has to do with the breakdown of a normal, hierarchical moral authority, which leads to anarchy, which leads to a simplified and mindless moral authority.

One of the ironies is that while traditional moral authority is thought of as inhumanly and rigidly oppressive, it is actually nuanced and sensitive. For example, it allows for administrative discretion to adjust to each situation in a prudential way that can’t be prescribed in advance by the black letter rules. Such discretion reflects the multi-layered nature of reality, consisting of the combination of general principles on one hand and of non-systematizable particularities on the other.

By contrast, zero tolerance, which is advanced liberalism’s preferred form of authority, is absolutely rigid and lacks any human dimension.

I’ve seen this Santorum quote all over the place:

“If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”

Why has everyone in the media inserted “gay” into Santorum’s comment? It seems to me that it stands alone without the “gay” modifier. Does anyone know if the “gay” modifier was in Santorum’s original comment?

The reason I ask is that the “gay” in parens is everywhere, as if the notion that one might not have an absolute right to consensual (male-female) sex in the home is inconceivable; so inconceivable that everyone assumes that Santorum must have implied a “gay” qualifier in his comment.

Why should this be inconceivable, though? Surely married couples have a right — nay a profound moral duty — to consummate their marriages and, if possible, have and raise children. But there is no plenary right to heterosexual sex in the home either, and I’m not sure that Santorum meant to restrict his comment only to buggery. Why should there be a recognized legal right to any class of self indulgent sexual perversion?

There may be something to what Matt is saying about the reason for the parenthetical addition of “(gay)” to “the right to consensual (gay) sex within your home.” It IS most odd to see the parentheses in an interview, as though the interviewee had said “open paren, gay, close paren.” But in the actual interview (linked in my own article from a couple of days ago), Santorum said “consensual sex within your home.”

One of the absurd things is that the issue he’s been mainly attacked for, that he supposedly equated homosexual acts with bestiality and incest, is not at all what he was saying. In that passage, he was making the familiar argument that if permissible sexual acts (or legally recognized marriage or family) include any same-sex relationships, on the basis of the preferences of the parties, then there is no reason why such relationships or institutions should not also include incestuous relationships, threesomes, and so on. Why that oft-repeated argument should suddenly set off such a controversy I can’t imagine.

It’s even stranger when we realize that the real substance of Santorum’s statement is much more radical and threatening to liberal orthodoxy than the thing he’s falsely being attacked for.

Actually, my thoughts on “zero tolerance” were quite simple: if you have a rule e.g. forbidding bringing “dangerous weapons” to school, and allow discretion in defining what those weapons are and what counts as an excuse, mitigation or aggravation, you’ll find yourself in an impossible legal and political situation because the effects of the rule won’t be the same for all classes of students. So all you can do is impose per se rules and enforce them absolutely mindlessly. That way there’s nothing to explain or argue about.

Mr. Auster writes:
“It’s even stranger when we realize that the real substance of Santorum’s statement is much more radical and threatening to liberal orthodoxy than the thing he’s falsely being attacked for.”

It definitely struck me as odd. A cynical view might be that Santorum can’t be thought of as picking on gays if he is denying a legal right to fornication in general. If Santorum is taken at the most obvious reading of his actual words he would deny a right to adultery in the privacy of the home too, and it is harder to argue in an intellectually honest way against that more consistent position.

Part of what has been lost in our postmodern setting is the distinction between an act to which one has a “right” and acts which it may be imprudent or even tyrannical to police. In a moral society one would never have a “right” to commit an immoral act; but of course that does not imply a government perogative to ruthlessly police all immoral acts.

By structuring every prudential limitation on government authority as an assertion of individual rights our postmodern liberal society has guaranteed two things: that moral abominations will be asserted as absolute rights to be defended by the guns of the police and that government will feel justified in interfering in anything that is not protected by such rights.

A component of this loss — a loss of the space in between the individual’s assertive rights and the governments powers to enforce — is the loss of widely unenforced laws that were there to protect public morality. In the landmark “right of privacy” case Griswold vs. Connecticut, for example, Connecticut had a law against contraception that had not been enforced but that nevertheless asserted a public moral standard unnaceptable to liberals. Griswold was recruited to break it, was cited by a complicit policeman, and was dragged before Justice Douglas and the oh-so-reluctant Supreme Court. The Court killed the Connecticut law and asserted a new right of privacy for Griswold — a privacy that apparently entails being able to strut around the drug store in public, in front of my kids, with a pack of condoms. That same right of privacy now protects mothers who murder their own children in utero. Isn’t selective stare decisis fun?

One of the most interesting things about a “right of privacy” is its fundamental intellectual incoherence. If something is truly private then whether there are laws against it or not is irrelevant — no law can be enforced against an act that is unknown. The “right of privacy” is therefore really about providing protection for publicly immoral acts.

To expand on the previous comment:

Even a per se rule can obviously have a disparate impact. But disparate impact by itself isn’t against the law. If it were a problem in and of itself then there couldn’t be laws against murder. What disparate impact does is create a presumption against the institution. So the key is to reduce the number of issues you have to argue, because on each issue you’ll have to overcome a presumption.

It follows that the best way to win is to eliminate all issues other than the rule itself. You talk to your lawyers, find out what other institutions have done and what the official “best practice”is, choose a rule that seems likely to stand up in court, and then apply it absolutely blindly. That way there are no factual questions about what happened in the particular situation. The answers to such questions are usually ambiguous, which means you usually lose. There’s just a pure legal question about whether rule X is OK. And on that point your position has been totally designed and controlled by your lawyers.

The problem in the background of all this is that once discretion is suspect, because there is no common good but only power, and once equality of treatment has become the crucial point, because there’s no substantive goods so formal criteria are everything, then everything must be made explicit and public so it can be reviewed and checked by an external tribunal. That means per se rules and lawyers who control everything.

What is going to be the effect on children of treatment at the hands of the authorities such as that described by Phyllis Schlafly? If I were being treated this way and lacking in other sources of moral guidance, I think my reaction would be to develop an utter contempt for existing authority and for precepts such as nonviolence and respect for females. In other words I’d likely turn into some kind of thuggish Nazi revolutionary or criminal. These crazy policies of enforced simulated sainthood are surely breeding large numbers of devils.