Saturday, November 6, 2010

What Governmental Tolerance is Not

LAST TIME:  Governmental TOLERANCE as Core Principle of American Democracy - "Harm" Principle; Right to be "Let Alone"

It is worth noting what governmental tolerance is not. It is not a strict libertarian approach where government would have little or no role in all matters – as Thomas Paine said, “the Public Good is to be [government’s] object.” Government has vital, important functions. In exercising these functions, however, elective government acts legitimately only insofar as it respects the individual’s “right to be let alone.” All government activity must be guided by this test - if the elective government’s action abridges individual free-will on matters of natural private concern, presumptively it is not legitimate, and should be struck down by another branch of government - the judiciary. Outside of such freedom-depriving sorts of actions, however, elective government is free to enact policy as it will – whether of progressive, conservative, or any other description. This is where the people and their representatives exercise the will of the majority in a democratic society. In such cases judicial intervention is inappropriate, and an intervening court would raise legitimate countermajoritarian-difficulty concerns. Finally, at the same time, when judicial opinions fail to respect liberty/equal-justice interests, it is elective government’s responsibility to enact legislation to (among other things) guide the judiciary.

One last note on tolerance: as much as one may sing its praises, it is important not to view governmental tolerance as a panacea for all of society’s ills. As Professor Michael Walzer notes, “tolerance brings an end to persecution and fearfulness, but it is not a formula for social harmony. Newly tolerated groups [and individuals], insofar as they are really different, will often also be antagonistic, and they will seek political advantage.” The point is that in a governmental tolerance regime, the one thing those groups and individuals will not be able to do, even while seeking political advantage, is to enlist government assistance in denying the other groups and individuals from engaging in their preferred activities. Government, with rare exceptions, must tolerate them all.

NEXT TIME:   Organized Religion as Source of Intolerance