Entries from October 1999

Putting Sexual Liberation First

David Frum October 25th, 1999 at 12:00 am Comments Off

>If An Affair of State, black'> 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


>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


>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

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

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

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

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 liberalmoral 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.