Who Is Looking After the Country?
Truth, Free Speech, and the Limits of Constitutional Government
There is something deeply unsettling about the way our political and constitutional system works. We have courts to interpret the Constitution, a president to administer the government, a Congress to make laws, and a press to inform the public. Each has an important and legitimate function. We have built elaborate rules intended to keep each of them within its proper boundaries.
And yet, watching the continuing battles over presidential power, the courts, the press, free speech, and due process, I keep coming back to a question that is much harder to answer: Who is looking after the country? I don't mean who is running the government. I mean who is responsible for seeing beyond the immediate dispute, beyond the political party involved, beyond who wins and who loses, and asking whether the system as a whole is serving the country?
To answer this question, there is an even more fundamental question—one that precedes all of these institutional questions. Are human beings capable of setting aside their own interests and biases in the pursuit of truth? Or are self-interest and bias so inevitable and indelible that objectivity is essentially a myth?
That question matters enormously because the answer determines what we believe about authority itself. If objective truth exists, then a person's opinion can be measured against something outside the person. A judge can be wrong. A president can be wrong. A journalist can be wrong. A political party can be wrong. And, importantly, each of them can be challenged on the basis that something is true or false independent of who happens to believe it.
But if there is no objective truth—if every person's understanding is merely a product of personal experience, interest, identity, or perspective—then something fundamental changes. There is no longer a truth against which competing claims can be measured. There are only competing perspectives. And once that happens, authority becomes extraordinarily difficult to justify. Why should I accept your judgment rather than mine if your judgment is simply your subjective perspective and mine is simply mine?
This is where I think an important cultural change has taken place. There was once a widely accepted intellectual ideal: that human beings, precisely because they are biased, had a responsibility to discipline their judgment in the pursuit of truth. Objectivity was not understood to mean that human beings were naturally unbiased. Quite the opposite. The very idea of objectivity presupposes that we are biased creatures who nevertheless have an obligation to struggle against our biases.
A scientist is expected to challenge his own hypothesis. A journalist is expected to check his facts even when the facts are inconvenient. A judge is expected to apply the same principle whether it helps a Democrat or a Republican. A citizen is expected, at least in principle, to be willing to discover that his own side is wrong. The standard was not perfection. The standard was intellectual honesty.
But the Progressive Left have introduced something different into our culture: the proposition that bias is not merely something human beings possess but is something they cannot escape; that objectivity is therefore impossible; and that what we call "truth" is often simply the perspective of whoever is doing the talking. There is an enormous difference between saying, "Everyone has biases, so we must be vigilant about them," and saying, "Everyone is inevitably biased, so there is no meaningful possibility of objectivity." The first proposition calls for greater intellectual discipline. The second can become an excuse for abandoning it.
If everyone is biased, then my opponent's argument can be dismissed as "his perspective." If there is no objective truth, then a factual claim can become merely "your truth." If every institution is inherently political, then a court's decision can be dismissed as politics whenever we dislike the result. If every journalist is biased, then inaccurate reporting can become no different in principle from accurate reporting. It is simply one person's narrative against another's. And this has a profoundly corrosive effect. It gives everyone an escape hatch. Almost any assertion can be protected from criticism by claiming that the critic is merely expressing another subjective viewpoint. The consequence is not intellectual humility. It can become intellectual immunity.
Consider the current argument between the White House and several news organizations. President Trump has repeatedly characterized reporting he regards as false as "fake news" or "lies," while the organizations involved maintain that the administration is punishing them for their journalism. The resulting legal disputes have naturally focused on the First Amendment, freedom of the press, and, in the current White House access case, Fifth Amendment due process.
Those constitutional questions matter. But they are not the question I find most interesting. The Constitution can tell us whether the government has violated someone's rights. It can tell us what procedures the government must follow. It can limit what a president may do to a journalist. It can protect the press from government retaliation. What it does not do is tell us whether the journalist is telling the truth or has a responsibility to tell the truth.
That is a different problem. The First Amendment answers the question, "Do you have the right to say it?" It does not answer the question, "Is it true?" And if we confuse the right to speak with the rightness of what is spoken, we have made a profound category error.
This is where I think the argument over "fake news" becomes more interesting than the phrase itself. The phrase is rhetorically crude, and it can be used simply as a weapon against reporting one dislikes. But beneath it is a legitimate question that a constitutional rule cannot answer: What happens when journalism is inaccurate, misleading, selective, ideologically driven, or simply intellectually dishonest?
There are legal limits on journalism. Defamation law is one of them, although the constitutional protections for speech make those limits deliberately narrow, particularly when public officials or public figures are involved. But there is no constitutional requirement that journalists be intellectually honest. In the Supreme Court, we have a body that determines whether the government is abiding by the rules. There is no constitutional tribunal that determines whether a newspaper has fairly represented an event, whether it has selectively omitted relevant facts, whether it has framed an issue to produce a particular impression, or whether its account reflects a genuine search for truth rather than a preferred narrative.
For the most part, those judgments are left to the marketplace of ideas and to the public. That is an intentional feature of a free society. We protect the right of people to be wrong because giving government the authority to determine which opinions are true would be far more dangerous than tolerating false opinions.
But there is a paradox here. Protecting the right to be wrong presupposes that being wrong is a meaningful concept. We can say, "You have a right to believe that," only if we retain some concept of the difference between belief and reality, between opinion and fact, between truth and falsehood.
And that brings us back to the deeper problem. If the press can say, "This is our interpretation," and the president can say, "This is my interpretation," and each side can dismiss the other as merely expressing a subjective perspective, then what standard remains? How do we distinguish a journalist who made an honest mistake from one who knowingly distorted the facts? How do we distinguish a political argument from propaganda? How do we distinguish a legitimate difference of interpretation from a deliberate falsehood?
The answer cannot simply be that everyone is biased. Of course everyone is biased. That is precisely why intellectual honesty matters. The existence of bias is a reason to examine evidence more carefully, to test our assumptions, to listen to opposing arguments, and to ask whether we would reach the same conclusion if the facts favored the other side.
The proposition that "everyone is biased" can itself become a form of dogmatism. If I tell you that you are incapable of being objective, I have made a sweeping claim about human nature. If I tell you that truth is always socially constructed, I have made a claim about reality itself. If I tell you that every institution is necessarily driven by political interest, I have made a claim about every institution. Those propositions are not somehow exempt from the requirement of evidence simply because they are skeptical of objectivity.
Indeed, they should be subjected to the same intellectual scrutiny as every other proposition. The existence of bias should not lead us to abandon the pursuit of objectivity. It should make us more disciplined in pursuing it.
We should acknowledge that we have interests and prejudices precisely because we want to become better at recognizing when they are influencing our judgment. We should demand evidence. We should distinguish fact from interpretation. We should be willing to test our own beliefs against contrary evidence. We should apply the same standards to our own side that we apply to the other side. And, perhaps hardest of all, we should be willing to discover that the people we disagree with are sometimes right.
In other words, the existence of bias is an argument for pursuing objectivity—not an argument for abandoning it. No human being may ever achieve perfect objectivity. But there is a tremendous difference between saying, "Perfect objectivity is difficult," and saying, "Objectivity does not exist." The first is a reason for humility. The second can become a justification for anything.
This brings us back to the opening words of the Declaration of Independence. The founders did not write, "We hold these perspectives to be self-evident." They wrote: "We hold these truths to be self-evident." That is not a trivial choice of words.
The Declaration proceeds from the premise that certain propositions are true independently of the political power of the people asserting them. Human beings may fail to recognize truth. They may disagree about it. They may even deliberately distort it. But disagreement does not eliminate the existence of truth. Indeed, the Declaration's entire argument depends upon that distinction.
The rights it invokes are not presented as privileges granted by government. They are described as inherent. Government's legitimacy is then derived from the consent of the governed, and government's purpose is to secure those rights. That is an argument about objective moral reality. It says, in effect, that government does not create the fundamental rights of human beings. Government is accountable to them.
If truth itself becomes merely subjective, however, that foundation becomes unstable. Rights become whatever the prevailing political majority says they are. Justice becomes whatever those with power define it to be. Authority becomes nothing more than power backed by procedure. And disagreement becomes impossible to resolve except by determining who has enough power to impose his version of reality.
That is a very different conception of self-government from the one expressed in the Declaration.
So who is looking after the country? Perhaps the answer is not supposed to be a president, a court, the press, or any other institution. The Constitution deliberately gives different institutions different powers and protects them from one another. It does not appoint a national referee of truth. It cannot make journalists honest, presidents honest, judges honest, or citizens honest.
Perhaps the deeper responsibility belongs to the culture itself—to citizens, journalists, politicians, judges, academics, and institutions that still believe there is something called truth; that human beings are capable of pursuing it; and that they have a moral obligation to do so, even when the truth is inconvenient, even when it hurts their political side, and even when it exposes their own assumptions as wrong.
Without that shared commitment, our institutions are left with procedures but increasingly little common ground about what those procedures are supposed to serve. Checks and balances can restrain power. Elections can change governments. Courts can settle disputes. Journalists can expose wrongdoing. But none of these things can substitute for a culture that believes some things are actually true and some things are actually false, some things are right and some things are wrong, and that human beings are capable—however imperfectly—of telling the difference.
That may be the foundation beneath all the other foundations. And if we lose it, the problem isn't merely that our institutions become biased. We lose the standard by which bias itself can be recognized.
