The legislative overreach exemplified by the North Carolina Legislature’s recent decision to require citizens to use the bathrooms, locker rooms and changing rooms that correspond to the gender of their births is surpassed only by the executive overreach of the U.S. Justice Department’s subsequent announcement that every school district in the country should do precisely the opposite. The Obama administration’s directive, The New York Times reported, “does not have the force of law, but it contains an implicit threat: Schools that do not abide by the Obama administration’s interpretation of the law could face lawsuits or a loss of federal aid.”
For the record, federal aid to education in North Carolina is about $4 billion, an amount that if withdrawn would cripple critical programs for the very people that both sides say they are seeking to protect. As Mark Shields, the syndicated columnist and PBS commentator, put it, the administration’s announcement is the equivalent of threatening to drop a financial “federal atom bomb” on North Carolina in order to deal with a situation that involves less than one half of 1 percent of the state’s population. By comparison, about 6 percent of North Carolinians are unemployed and about one in five are living in poverty.
Is all of this really necessary? Don’t get me wrong: I’m of the opinion that, generally speaking, people should be treated in the way they want to be treated and that reasonable accommodations should be made to see that they are. But do we really need the federal government to extort a solution from the more than 300 million of us who, until very recently, were not even aware that this was a problem and are perhaps still struggling to understand why it might be?
“This is the kind of issue that is normally handled with culture norms, and people making compromises,” said Michael Gerson of The Washington Post on “PBS Newshour,” “but now we have both sides politicizing this.” We have reached a point, in other words, where we apparently need to legislate or litigate every social disagreement among us, resolving even relatively minor disputes by heavy-handed legislation or judicial fiat.
This, of course, is part and parcel of the cultural warfare we have come to expect in this golden era of ideological partisanship: “We take issues like this that maybe people of good will could come to some agreement on, “ said Mr. Gerson, “and run them through this culture war machine of our politics, when, in fact, I think, on this type of issue, we have a long history of reasonable people reaching accommodations in their own community.”
Admittedly, there is also a long history of people not reaching accommodations in their own communities on some important issues. But Mr. Gerson is onto something, which we will need to bear in mind if our Madisonian experiment in republican government is going to survive the 21st century: “The cool and deliberate sense of the community,” wrote Publius in Federalist Paper 63, “ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers.” In other words, appeal to the common sense and decency of our neighbors should be our first resort in times of conflict. In a democracy worthy of the name, law is a sober compromise of last resort, not a blunt instrument wielded with self-righteous alacrity by alternating factions.
I have a feeling that if the good people of North Carolina had been given a little more time and space, they would have found ways to treat all their fellow citizens with the respect that most people think most people deserve. Then again, maybe not. Regrettably, we will never know.