Tolerance, the Constitution, and the Limits of an Open Society

This speech was given at the Alexander Hamilton Institute on April 14, 2016.

When Bob Paquette asked me the other day for a title for my remarks this evening, I told him I’m using the title of the colloquium since it nicely captures not only our readings but what I’d like to say in a general way about the issues we’ll be discussing over the next couple of days. At least since Locke, tolerance has been thought an important public or political virtue — indeed, a political necessity, given the brutal history of religious intolerance that Robert Weissberg sets forth early in our colloquium readings. And tolerance is also a useful private or personal virtue, although that’s a more complex issue, as Weissberg suggests. But as a political virtue, tolerance is central to the American vision, rooted as we are in the Lockean tradition. It’s incorporated in our basic law, the Constitution, or so I’ll argue, even if its incorporation in our statutory and case law has been uneven, to say nothing of its incorporation in our practice. So there’s the second issue in our colloquium title, the Constitution, about which I’ll have a fair amount to say. That brings us to the third issue: Are there limits to the open society, and if so what are they? It’s one thing to tolerate or suffer obnoxious views, even obnoxious behavior, quite another to do so when they threaten to undermine or destroy the very institutions that protect them. As many have written, including Judge Posner later in our readings, the Constitution is not a suicide pact.

So let me begin with something of a roadmap for what I’d like to cover — the idea being not so much to answer all the questions before us but rather to raise some questions and then to suggest a few answers of my own. I’ll start with just a few thoughts about the idea of tolerance, especially as it came to be part of the classical liberal vision. Then I’d like to draw that vision out a bit as it’s manifest first in America’s birth certificate, the Declaration of Independence, and then in the Constitution, especially as our basic law was amended shortly after the Civil War. I’ll then step back and reflect briefly on how tolerance plays out under that regime, quite apart from how it has historically. With that as background, I’ll turn next to the Progressive Era and its rejection of the original American vision, arguing that as progressivism unfolded and matured into modern liberalism, we saw something of a paradox: greater tolerance for personal differences and personal liberty, but less for economic liberty, resulting in implications that have been too little noticed until recently, although they were long ago predicted by more thoughtful observers. Finally, I’ll conclude with a few reflections on some of the more specific topics in our readings — again, more to stimulate discussion than to settle it.

My thesis is simple and straightforward, and would be unremarkable save for the times in which we live — where too many students and faculty alike are so certain they’re right that they’ll have no truck with alternative views or speakers; where religious liberty is increasingly under attack from the left and large corporations alike; where tyrannies around the world go largely unchallenged while the only democracy in the Middle East endures relentless attacks; and where those who question allegedly “settled science” are subject to prosecution under, of all things, the Racketeer Influenced and Corrupt Organizations Act. That otherwise unremarkable thesis, then, is that with the rise of the individual in the late Middle Ages, through the Renaissance, the Reformation, and the Enlightenment, and the decline accordingly of the authority of the apostolic faith, the need for public tolerance of individual differences grew ever greater, secured under liberal constitutions that protected liberty and tolerated all but intolerance of a kind that would undermine that liberal order. Thus, there are limits on an open society that stem from and reflect the very point of such a society, namely, to enable individuals to flourish as they wish, respecting the rights of others to do the same. In a nutshell, liberty requires and in turn begets tolerance.

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Roger Pilon is vice president for legal affairs at the Cato Institute, founding director of Cato’s Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.