On any given day, a Google search finds the word “intransigent” deployed as though it automatically destroyed an opponent’s position. Charles Blow of the New York Times and Jacob Weisberg (no relation to the present writer) of Slate are only two of many, especially on the political left, who label Republicans “intransigent” and thereby assume they have won the argument against them.
The first intransigents, however, were on the extreme left. The Oxford English Dictionary dates the usage “intransigent” to 1873, when an extreme left party in the Spanish Cortes called themselves “los intransigentes.” Interestingly, the Spaniards did not think their self-description worked any harm to their political positions, which they felt deserved to be stated forthrightly, without compromise, and passionately.
By the early 1880s, Democrats in the United States reversed the political origins of the word when they pinned “intransigence” (as a noun) on “an uncompromising republican”. Since then, the left more than the right has mapped “intransigence” onto “extremism,” often assuming without substantive analysis that an unwillingness to compromise a position makes it not only untenable but also bizarre.
Of course, we live in a world that unhesitatingly accepts flexibility and compromise as basically good and even as a goal unto itself. However, a willingness – too often made into a norm – to compromise strongly held viewpoints has repetitively brought on destruction and death. Wouldn’t the outcome have been better if Neville Chamberlain at Munich in 1938 had dealt obstinately and inflexibly with Adolf Hitler? Shouldn’t post 9/11 Americans have been less elastic in their willingness to negotiate away our country’s prior taboo on torture?
So it turns out that intransigence is not always bad and should not be used as a pejorative until the writer defines substantively the position he is attacking. Holding firm is sometimes good and sometimes bad, exactly as being flexible can be terribly wrong if what we give away to prove we are flexible is actually something that was good.
I define intransigence as “a resistance to the urge to shift malleably from positions thought to be sound.” This definition is neutral as to the merits or demerits of the deeply held viewpoint. That part is up to all of us, who should think through what is vitally important to us individually, stick to it, fight for it, and abandon the fallacy that even those whose positions we detest are clearly wrong because they, too, are intransigent. If we are right and they are wrong, the matter will be decided because of the position we take and not our inflexibility in propounding it.
President Obama has just publicly recognized that we should not have collectively caved in on the practice of torture. Those few people who adamantly refused from 9/12 onwards to compromise that taboo deserve to be called both correct and intransigent.
Headline image: Fist. Photo by George Hodan. Public domain via PublicDomainPictures.net.
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By Richard H. Weisberg
The recent Hobby Lobby decision, which ruled that corporations with certain religious beliefs were no longer required to provide insurance that covers contraception for their female employees — as mandated by Obamacare — hinged on a curious piece of legislation from 1993. In a law that was unanimously passed by Congress and signed by President Clinton, the Religious Freedom Restoration Act (RFRA) stated that “Government shall not substantially burden a person’s exercise of religion.” The intention of RFRA was to offer an opportunity for religious people to challenge ordinary laws, state or federal, that had some adverse impact on their faith. The RFRA was a direct response to a case three years earlier, when the Supreme Court decided that laws that applied to everybody were acceptable even if they burdened a religious community. RFRA was Congress’ scream of protest to the Supreme Court’s jurisprudence.
By passing the RFRA in 1993, Congress was trying to steal the Supreme Court’s thunder. It was not fixing physical infrastructures; it was fixing a fellow branch of government. It was not over-ruling what it considered to be a faulty judicial reading of its own statutes; it was changing an interpretation of the Constitution itself. But isn’t the Court, for better or worse, the ultimate authority on the First Amendment? Didn’t the principle of separation of powers prevent the legislative branch from amending, by mere majority vote within its own chambers, the Constitution as understood by the justices at any given time?
Ruth Bader Ginsburg, US Supreme Court Justice. Collection of the Supreme Court of the United States. Photographer: Steve Petteway. Public Domain via Wikimedia Commons.
Indeed, the Supreme Court went on to strike down RFRA in 1997, but only in part. It ruled that the states were not covered by RFRA’s change, but that the federal government was. This provided the opening for the Hobby Lobby decision, where several for-profit closely held corporations sought to defeat a federal regulation about contraception that applied generally to businesses, but offended their own belief systems.
Most discussion of Hobby Lobby, including even Justice Ginsburg’s dissent, has flexibly adapted to the idea that RFRA is constitutional, despite its extraordinary usurpation of judicial power. Her dissent correctly points out that her colleagues in the majority go even further than Congress in permitting religious belief to trump democratically passed legislation. Yes: the majority went much too far in holding that a corporation can “believe” anything or that free exercise rights are violated even when the central beliefs or practices of the religious are not directly implicated; but far worse was its acceptance, without discussion, of Congress’s power grab under RFRA. And the dissents doubled down on that departure from firm and fine traditions we call separation of powers.
Two examples of flexibility, however otherwise opposed, do not add up to the uncompromising defense of our Constitution needed at all times and perhaps especially now. The Supreme Court needed intransigently to re-assert its own power as a separate branch of government. Hobby Lobby’s attempt to veto part of Obamacare that offended its “corporate faith” would and should have been shut down immediately. Our Constitutional system of checks and balances required a clear statement. The Court, on both sides of Hobby Lobby, gave us the ambiguities that muddy the waters when compromise replaces principle.
Richard H. Weisberg, professor of Constitutional Law at Cardozo Law School, is the author of In Praise of Intransigence: The Perils of Flexibility.
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