Putting Sexual Liberation First
To Clinton's defenders, something more important than the rule of law was at stake
Oct 25, 1999, Vol. 5, No. 06 • By DAVID FRUM
IF An Affair of State, Judge Richard Posner's new book about the impeachment of Bill Clinton, is indeed as definitive as its admirers insist, my place in history is secure: While the book's index offers only three references to Trent Lott and four to Henry Hyde, it has six to me! (True, Hillary Clinton edges me out with eight, but, I feel compelled to note, four of hers are footnotes.) And all of this thanks to a single sentence published in this magazine in February 1998. Here it is, as edited by Posner. "For David Frum, moralistic conservative, 'what's at stake in the Lewinsky scandal . . . [is] the central dogma of the baby boomers: the belief that sex, so long as it's consensual, ought never to be subject to moral scrutiny at all.'"
According to Posner, the thinking exemplified by my sentence explains how Bill Clinton managed to survive the scandal, and even why he might fairly be thought to have deserved to survive: "If the core of the opposition to Clinton is not that he is a liar or even a criminal (for the Right displayed little indignation over the crimes committed by the participants in the Iran-Contra affair), but that his personal conduct and attitudes are revolting, then the claim of his defenders to be warding off a puritan assault on sexual liberty cannot be dismissed as sheer demagoguery."
The judge wants it to be understood that he himself should not be counted among Clinton's defenders. The bulk of his book is devoted to exposing and scourging the deceitfulness of the case for the president in each and every particular, from its bogus claims of executive privilege at the beginning of the scandal to the two-faced arguments in the Senate trial at its end (see David Tell's review in the September 20 WEEKLY STANDARD). Posner concludes that the president obstructed justice and reckons that a private citizen guilty of offenses comparable to Clinton's would face a prison sentence of between 30 and 37 months.
He goes further still. Posner agrees with the House impeachment managers that Clinton's lying subverted the rule of law. "The president's illegalities constituted a kind of guerrilla warfare against the third branch of the federal government, the federal court system, which had rejected his argument that he should be entitled to immunity from civil suits until the end of his term."
He agrees with William Bennett (whom he criticizes at some length) that Clinton's actions disgraced the American system of government. "Presidents have been called 'the high priests of the American civil religion.' President Clinton may be said without hyperbole to have defiled the Oval Office by his antics. Clinton's disrespect for the decorum of the Presidency, especially when combined with the disrespect for law that he showed in repeatedly flouting it and with his barefaced public lies, constitutes a powerful affront to fundamental and deeply cherished symbols and usages of American government, an affront perhaps unprecedented in the history of the Presidency. Imagine a President who urinated on the front porch of the White House or burned the American flag; these acts could be thought metaphors for what Clinton did."
Posner even follows Robert Bork in regarding Clinton's lies as an assault on the fundamental principles of constitutional self-government. By persisting in his lies even after they had been exploded, and by mobilizing his supporters to express their faith in those lies, Clinton "reminded one of how tyrants exhibit their power by forcing their subjects to express agreement with lies that no one believes, such as that the tyrant is benign and the nation a democracy."
Nevertheless, and despite all that, Posner isn't really sorry that Clinton beat the rap. For as important as constitutional self-government may be, it turns out to be not quite as important as beating back the ever-present threat of sexual puritanism.
Richard Posner is of course far from the first commenter on the Lewinsky scandal to frame the argument in these terms. Shortly before the 1998 congressional elections, Andrew Sullivan published a much-quoted article in the New York Times Magazine that asserted the same point even more emphatically. Sullivan discerned in the anti-Clinton camp a new and ominous form of conservatism, one "only nominally skeptical of government power. It is inherently pessimistic -- a return to older conservative themes of cultural decline, moralism and the need for greater social control. . . . A mixture of big-government conservatism and old-fashioned puritanism, this new orthodoxy was waiting to explode on the political scene when Monica Lewinsky lighted the fuse." And as Exhibit A for the existence of this new conservatism, Sullivan cited . . . my sentence!
"It would be hard to put better," wrote Sullivan in quoting me, "what was so surprising, and so dismaying, about the Starr Report and the Republican Congress's subsequent behavior. The report was driven, as the Republican leadership seems to be, not merely to prove perjury but to expose immorality. In this universe, privacy is immaterial, hence the gratuitous release of private telephone conversations, private correspondence and even details of the most private of human feelings."
Sullivan's article is cited approvingly by Posner. Sullivan, in turn, reviewed Posner's book glowingly for the New York Times Book Review. It is not fanciful to see in their writings the beginnings of an establishment consensus on the events of 1998; one that parcels out, in apparently even-handed measure, equal blame to Clinton himself and to those affronted by his wrongdoing. It's very bad, this view holds, that the president should conspire to defy the law for his personal advantage. But, as Sullivan observed in his New York Times article, "the emergence of religious dogmatists on the far right" had to be considered at least an equivalent "threat to constitutional order and political civility."
Before the new consensus hardens, it might be a good idea to read a little on either side of the offending words of mine that provoked all this viewing-with-alarm. For they mean the opposite of what Posner and Sullivan would have them mean.
The article from which my sentence was snipped was entitled "A Generation on Trial." When it was written, the Lewinsky scandal was barely a month old. In those early days, just about everybody agreed that if President Clinton were proved to have perjured himself and obtained the perjury of others, he would probably have to leave office. Shell-shocked supporters of the president dared argue only that the allegations of obstruction of justice remained unproven, but this play-dumb defense almost immediately wore thin. My article predicted that as it became increasingly impossible to pretend that the president was innocent, his defenders would be forced to say what they really thought: that lying under oath, intolerable under virtually any other circumstance, was permissible if necessary to protect one's sexual freedom -- because in their eyes, sexual freedom was the supreme value, the one individual right that outweighed all other moral and political obligations.
Here, in its entirety, is the original argument: "Just as the ACLU sees a Frosty the Snowman in front of City Hall on December 24 as the first step toward theocracy, so the president's defenders fear that condemning the Lewinsky affair will ineluctably lead straight back to Puritan New England. Make no mistake: The defense of Clinton's right to lie about his affair with Lewinsky is not, as some of his defenders optimistically suggest, a defense of 'privacy.' If it turned out that Clinton were in the habit of making racist jokes in the company of two or three old friends, the privacy defense would not avail him. If he had lied under oath to cover up an improper deduction on his theoretically private tax return, [his supporters] would lift not a finger for him. The right to privacy? This is a White House in which you're not allowed to smoke. No, what's at stake in the Lewinsky scandal is not the right to privacy, but the central dogma of the baby boomers: the belief that sex, so long as it's consensual, ought never to be subject to moral scrutiny at all."
Posner and Sullivan cite that last sentence to show that sex was the central issue of the case for conservatives; in fact, the sentence warned that sex would become the central issue of the case for liberals. My words were not an unguarded remark that spilled the secret of the vast right-wing conspiracy: They were an accurate prediction (almost my only accurate prediction all year) of how people like Posner and Sullivan would ultimately react. If Clinton had ordered up a campaign of obstruction of justice to avoid paying his income tax, I very much doubt that Sullivan would have rallied to his defense (as, after some hesitation, he ultimately did) or that Posner would find himself unable to answer the question he poses in one of his own chapter headings: Should President Clinton have been impeached? "About all that can be said," Posner perorates, "is that a moral rigorist would be inclined to think that the President committed impeachable offenses, while a pragmatist would lean, though perhaps only slightly, the other way."
In short, rather than say or do anything that might tend to suggest that what Clinton did with Monica Lewinsky was wrong, Posner and Sullivan, however unhappily, ended by excusing the damage Clinton did to the structure of American law and society. Indeed, after a few lines of worry, Posner explicitly shrugs this damage off: "A clearly guilty O. J. Simpson was acquitted of murder in 1995, yet this seems not to have interrupted the steady decline in the nation's murder rate."
All of which raises a very interesting problem. Posner and Sullivan both make the familiar polemical point that conservative moral values tend to conflict with the conservative political ideal of limited government. So eager are moral conservatives to scold and reprove that they have succumbed to the temptation to use the state to foist their repressive creed on everybody else.
There is of course some truth to this charge: Witness the war on drugs. But isn't the real lesson of the Lewinsky imbroglio how sharply liberal moral values and liberal political ideals now conflict?
As conservatives are reminded any time they criticize a left-tilting decision from the Supreme Court, liberals put great stock in legality. And as conservatives are reminded every time they complain about the ACLU, liberals even put great stock in legalism. And yet, when the test came, a very great many American liberals decided that the president's right to pursue sexual pleasure without interference mattered more to them than his obligation to uphold the rule of law. In other words: When legality clashed with sexuality, sexuality prevailed.
Since it got going in the middle 1960s, the sexual revolution has been hailed by its advocates as the logical culmination of the American experiment in freedom. In practice, however, the sexual revolution has exposed itself as a surprisingly illiberal force in American life. To it we owe the post-1965 disintegration of the family, the institution that best insures individuals against dependence on the state, and the arguments found in Posner's book suggest that the illiberality of the sexual revolution may run even deeper still.
It may be that a self-centered outlook, impatience with rules and restraint, and a disgust with moral judgment is not the stuff of good citizenship. My sentence expressed at the outset of the Lewinsky scandal a fear that people for whom any hint of moral judgment is anathema will lack the strength and courage to defend republican institutions in a time of trouble. Now the news looks even more troubling: People who disdain moral judgment seem to find it difficult to muster much strength or courage even after the moment of trouble has safely passed.
David Frum is a contributing editor to THE WEEKLY STANDARD.