[UPDATE: Welcome, Sullivan readers. My response to Andrew's latest is at the bottom of the post.]
There are some lefty blogs attempting to argue that Lynne Cheney came off looking bad in the CNN exchange with Wolf Blitzer, which is why, I guess, almost every conservative blogger in the U.S. is drawing attention to the exchange. Visit TruthLaidBear.com and search "Lynne Cheney" for an assortment of opinions, but there's a reason I played the exchange in full and parts of it many times on today's program, and it isn't because the exchange will boost CNN's ratings as "the most trusted name in news." The "most busted name in news" is more like it.
Lynne Cheney goes on CNN to discuss a book, the host barely discusses the book, and Lynne Cheney stays calm and eviscerates the host and the network.
Andrew Sullivan comes on my program to discuss a book, won't discuss it, and flys off the handle when I ask him specific questions about what he has written. (Ace has other problems with Sullivan.)
Lynne Cheney is a conservative. Andrew Sullivan is a radical. Thus the different approaches to interviews about their books.
A digression: Andrew quotes an anonymous law prof who points out --correctly-- that race isn't the only classification that requires compelling reasons for the state to make distinctions when employing it. As all of my law students over a decade know, there are other such classifications, most especially religion.
But the anonymous law professor must also know that Andrew's book claims --in studied and proofed black and white, not in the rush of an interview-- that government must have a compelling reason to make distinctions between its citizens, which is flat out wrong, and which was my point, as is obvious from the interview. I won't accuse the law prof of bad faith unless I know who he or she is and what he or she wrote. Yes, I gave an incomplete account of the strict scrutiny classification. Here is the relevant exchange:
HH: Andrew, it’s not. It’s your book. You write, for example, on page 240, that the government needs a compelling reason to treat citizens differently. That’s flat-out wrong. That would flunk any law student in America. Are we supposed to ignore the fact that you do not have a basic grasp of Constitutional law?
AS: I deny that. I think that’s an insult, and you should withdraw it.
HH: Well, it says, page 240…
AS: I just want to know why you support torture.
HH: The government needs a compelling reason to treat citizens differently. That is 180 degrees wrong.
AS: You don’t think the basic equality of people in this country, the civil equality of people in this country, isn’t a critical element…
HH: Andrew, the government…the only time the government needs…
AS: …is a critical element of the American experiment?
HH: We’re going to a break. The only time the government needs a compelling reason to treat people differently is when they do so on the basis of race. I mean, that’s what’s so astonishing about this book, is that you purported to write a book about the Constitution, and you don’t know how it works.
AS: I didn’t write a book about the Constitution. I wrote a book about conservatism.
HH: We’ll come back and continue the conversation with Andrew Sullivan, who apparently wants to forget the last third of his book.
What I ought to have said is:
We're going to a break. One of the very, very few times that the government needs a compelling reason to treat people differently is when they do so on the basis of race. I mean, that's what's so astonishing about this book, is that you purported to write a book about the Constitution, and you don't know how it works.
That was an error on my part, one of many I have made in 17 years of broadcasting and a decade of teaching, but nevertheless an error. I should have taken the time to more fully school Andrew in the intricacies of Equal Protection analysis. I am glad to correct the error. But I note that the context in which I misspoke was a radio interview when I was pointing out that Sullivan had radically misstated the law completely, not incompletely stated it.
The key point: Sullivan's book's error is a major one as he argues the opposite of what is true. He does so on p. 240 of his book:
There is, in other words, a presumption in the way a government interacts with its own citizens. That presumption is that they will treat each citizen absolutely alike, unless it has a very compelling reason not to. And it is up to the government to prove it has a good reason to discriminate rather than up to a citizen to prove she is equal under the law.
If Sullivan would let us know the name of the professor, we could ask the professor if he or she agrees with Sullivan. He or she could not. No licensed lawyer much less Con Law professor could.
No one with a legal education in America can agree with Andrew on a major premise of his book.
Unlike Andrew, when I make a mistake, I am happy to come forward and say "Yes, that was wrong. I was careless in the statement, but not deceitful in making it."
Sullivan's refusal to admit error here is taking him close to deception, and not just about Con Law.
The theologians are now examining Sullivan's arguments on Vatican II and much more. Too late for him to issue a correction and an apology? His reputation, what was left of it, is in ruins. It will take a mighty effort to rebuild it. Possible, but not likely. But possible.
But believe it or not, I am hoping he tries. As Joe Carter has pointed out, Sullivan is a brother in Christ, and C.S. Lewis has made a declaration of extraordinary relevance here:
You have never talked to a mere mortal. Nations, cultures, arts, civilizations — these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit — immortal horrors or everlasting splendors.
Like Sullivan, I am a sinner and in need of God's mercy and grace. I do not want to snub or exploit him. But I am concerned that his errors not gain traction in the American public, for they are destructive of the Republic and quite obviously wrong. I would welcome the opportunity to find common ground, and perhaps an encore interview could proceed on the premise that we would only discuss those matters on which we agreed. Mark Roberts is already about the project of correcting Sullivan, but Dr. Roberts is pretty much a saint, and I am just a scribbler. I hope Sullivan reads Roberts very closely. Very closely indeed.
Which brings me back to Wolf Blitzer, who should be reading the reviews very closely tonight. He should call Lynne Cheney and apologize. She is not just the spouse of the Vice President. She is a former colleague. He ambushed her. We. Don't. Do. That.
Wolf Blitzer is one of the nicest gentlemen I have met in this business, one of the most objective talking heads, though his network isn't As I said on the show today, Wolf Blitzer was very good to me when I was hawking a book. He made a mistake today. He should say so.
The silly season does funny things to journalists. Wolf threw a spoke. If he says so Monday, he would be a much better journalist for doing so. If he says so Sunday, in an interview with Mrs. Cheney about her book, he'll be hero to journalism.
And CNN should schedule an hour on whether it was wise to show that bit of propaganda. Wolf Blitzer didn't make that decision. Mr. Klein may have. He and other CNN execs should defend it against a panel of critics. I have met Mr. Klein. He's a smart guy and a patriot. But his network threw a spoke today when it ambushed Lynne Cheney and when it aired the sniper video. It should discuss why it did these things --on air.
You want ratings? That will give you ratings.
UPDATE: Sullivan, predictably, takes a correction of a small error in speaking on my part as an opportunity to obfuscate about a major error in his writing. (Weirdly, he calls it a retraction and then publishes my correction, leaving his readers to think that I have retracted what is in fact my correction. Like the book, a mess.)
As a means of retreat from that central error, he first must disassociate his last chapter, "A Politics of Freedom," from the Constitution, which he attempts to do by asserting that "i]t is perfectly clear, in other words, that I am not citing the U.S. constitution here - let alone expounding on the intricacies of the equal protection clause or anything else in the constitution for that matter," and by arguing that I "wrench[ed] that sentence out of context on the air," and that it isn't a major premise of the book anyway.
Not my dog. He didn't bite you. Beside you kicked him first.
Sullivan is apparently reserving the right to reject criticism of his book on the basis of a hierarchy of undisclosed premises. Minor errors --Jefferson as a Christian, Disraeli bringing in "universal suffrage" don't count (even though my incomplete statement of the companion categories of suspect classes is for him a sort of Waterloo), and a sweeping and wholly incorrect assertion about government --any government by the way, but especially the American government which is the central focus of this chapter-- doesn't matter at all, because Sullivan says so and he has a PhD.
Here's the crucial passage --three sentences, not one-- again:
There is, in other words, a presumption in the way a government interacts with its own citizens. That presumption is that it will treat each citizen absolutely alike, unless it has a very compelling interest or reason not to. And it is up to the government to prove it has a good reason to discriminate rather than up to a citizen to prove she is equal under the law.
Here is the on air exchange in which it was discussed, coming deep in the interview, and denied the time it deserved by Sullivan's refusal to answer questions:
HH: Andrew, is the Constitution a fundamentally…
AS: And that’s what I want to debate. I’m not going to be trapped into your little trick questions, and your cross-examination.
HH: Andrew, it’s not. It’s your book. You write, for example, on page 240, that the government needs a compelling reason to treat citizens differently. That’s flat-out wrong. That would flunk any law student in America. Are we supposed to ignore the fact that you do not have a basic grasp of Constitutional law?
AS: I deny that. I think that’s an insult, and you should withdraw it.
HH: Well, it says, page 240…
AS: I just want to know why you support torture.
HH: The government needs a compelling reason to treat citizens differently. That is 180 degrees wrong.
AS: You don’t think the basic equality of people in this country, the civil equality of people in this country, isn’t a critical element…
HH: Andrew, the government…the only time the government needs…
AS: …is a critical element of the American experiment?
HH: We’re going to a break. The only time the government needs a compelling reason to treat people differently is when they do so on the basis of race. I mean, that’s what’s so astonishing about this book, is that you purported to write a book about the Constitution, and you don’t know how it works.
AS: I didn’t write a book about the Constitution. I wrote a book about conservatism.
From the book, page 250:
The point of the American constitution was not to banish such human fallibility, but to bank on it. And so if the federal government had some apparently bright --but ultimately flawed-- idea, it couldn't impose it on everyone without a long and cantankerous battle. In that battle, individual states could go their own way. Or the Supreme Court could block the proposal. or the Senate, more detached from popular passions than the House, could stop the idea in its tracks. Or if it percolated up from the House and Senate, a president could veto it.
I discovered Sullivan attempting to smuggle into a chapter very much about the American Constitution --and not just in this excerpt but throughout-- a radical interpretation about what "equal under the law" means, a radical interpretation necessary to the same sex marriage project, judicial imposition division.
Erwin Chemerinsky notes that "[t]he Supreme Court has not yet ruled as to whether discrimination based on sexual orientation warrants the application of intermediate or strict scrutiny." "Nowhere [in Lawrence v. Texas] did the Court speak of a fundamental right or mention strict scrutiny," Chemerinsky added. Thus at least for now, the Supreme Court has not insisted on anything other than a "rational basis test" for discriminations based on sexual orientation --such as Congress' determination about gays in the military, or marriage laws limiting marriage to a man and a woman. A rational basis test is not only extremely deferential to legislated judgments, it usually --thpugh not always-- presumes the existence of facts supporting legislative judgment.
The essence of our Constitutional structure, then, is that our government is not built on a presumption of equality, that the government often discriminates between citizens, and that not only do those discriminations not need a "compelling" reason to support them, the government usually does not need even to state them.
The soul of American conservatism, then, is a right understanding of the Constitution and a respect for and honest statement of its operation. And that operation is best described as "constitutional majoritarianism," a process that insists that significant change proceed from the people's representatives making laws and the executive signing them. Thus a "conservative soul" simply cannot endorse or do anything but condemn radical innovation imposed by courts.
Here is the exchange that illustrates Sullivan's radicalism:
HH: In the history of the United States, has any state legislature ever passed, and a governor signed into law, a bill establishing marriage for two people of the same sex?
AS: In the state of California, of course, as you know, the legislature did vote, and the governor vetoed it.
HH: And so it has never actually happened anywhere in the United States in history, has it?
AS: Not yet, but boy, considering that only eleven years ago, I wrote a book suggesting the idea, it’s happened pretty quickly, hasn’t it?
HH: Well, given that it’s never happened with a legislative and an executive predicate, is it a radical thing for New Jersey to impose it on New Jersey, or Massachusetts courts to impose it…
AS: They’re not imposing it. What they have done is actually agreed with the President, as he said, I’ll repeat, the President’s words, for your listeners, I don’t think we should deny people rights to a civil union, if that’s what a state decides to do. The state court has decided that its own constitution, which guarantees equal protection of the laws to all citizens, whether they’re gay or straight…I know you think gay people should not have equal citizenship…they’ve decided that there should be equal rights. And then they’ve sent it back to the legislature, which is directly elected, to decide what to do with that, just as in Massachusetts, the people will be voting in 2008, whether the terrible thing of allowing two people to commit to each other forever, in responsibility and fidelity, whether that’s going to destroy civilization, the people of Massachusetts will decide. Let the states decide in time. It’s…this has happened very quickly. I think the process should go on state by state, and we should deliberate and argue, and the courts and the legislatures, and the executives can all fight this out in the way the founders intended.
HH: Yeah, but this is not the way the founders intended, because it is, of course, three articles, and the third branch was the least dangerous, and had no executive or legislative authority, and it’s inventing it. So my question is, given…
AS: 39 states have amended their own constitutions to make this impossible forever, okay?
HH: But Andrew, is it a radical act…
AS: You don’t think the states have power to stop this if they don’t want to?
HH: Again, the filibuster, I think, is self-defeating. The question is, is it a radical or a conservative act for a court to dictate to a legislature that they must pass laws establishing that civil unions or marriage are open to two people of the same sex?
AS: It is a conservative notion, a very conservative notion, that the court should look at…when presented with a case, should look at its own constitution, and see what it asks. What’s happened here, Hugh, as you know, is that our view of homosexuality has changed dramatically over the last 20, 30, 40 years. We understand what homosexuality is more than we used to. We used to think it was something that heterosexuals did that was bad and immoral, and should be punished and criminalized and actually have the death penalty in some cases. We then came to understand that gay people are gay because they are gay. And therefore, it’s something intrinsic to them in the way that race is. And therefore, it is subject to equal protection. And courts that have constitutions with equal protection clauses are really up against a wall on this.
There, you see, is Andrew Sullivan stating his core theory on same sex marriage and the courts, and the sentences I identified as central to his book are an attempt to smuggle the same erroneous claim into a long discussion about political theory, American government and the American Constitution, except now Andrew doesn't want this understood. In the interview he was more candid.
Because his central premise about how free governments operate is flat out wrong.
Sullivan's post-interview writings about the interview have gotten increasingly strident, which suggests something changed since Wednesday:
AS: By the way, Hugh, I just want to…I actually do want to thank you, because I’m having a ball.
HH: Oh, good. Good. We needed to get you happy. You should come back more often, because we needed that.
AS: You know, I’ve decided…I was completely wrong. I…you know, I grew up in the Oxford Union. I love debating, and you’re a hell of a debater, and I’m having a great deal of fun. I’ve wanted to have a fight about this book ever since it was published, and I’m having a great time here. So sorry…
Today, however, '[Hugh] knows he's lying. But this is his modus operandi: lying knowingly in order to smear anyone who dissents from the current party line."
I am "lying" because a I describe a major premise of his book as a major premise of his book.
What happened?
Sullivan has endured quite a bit of ridicule since he appeared on the show, beginning with the Lileks' parody, and continuing around the web. Some of that commentary was cruel and tasteless, but most of it went to Sullivan's incredible defensiveness and the inadequacy of his arguments. Sullivan has its defenders, but if it was afight, the ref would have stopped it long ago.
Now Catholic and protestant theologians are zeroing in on his unusual understanding of Christianity. In short, it is a smash-up on many levels.
Sullivan is compounding the error by attempting to take my concession of a minor misstatement and inflate it into --well, who knows? Given the Sullivan's own minor errors I would think he'd want to avoid such a standard.
But his real error today was to close with the very un-conservative assertion of authority over the debate because "[i]t's about political philosophy - where I have the PhD, and he doesn't." Not only did the framers --mostly lawyers-- not have PhDs, Andrew's book has quite a lot of theology in it, and the PhDs trained in that area, by Andrew's own standard, will deserve our respect when and if they deliver their assessments.
Whether or not Sullivan returns to the lists with another attempt to undo the interview, which can be listened to here (part 1) and here (part 2) or read here, the cement has set. It is a mess of a book, and it cannot be rewritten or Sullivan's on air comments unsaid.