Perhaps the most prescient and melancholy chapter in Alexis de Tocqueville’s Democracy in America is “What Sort of Despotism Democratic Nations Have to Fear,” which appears in the second volume of that great work. If despotism were to establish itself in modern democratic nations, Tocqueville predicted, it is likely that it would assume a different character from the tyrannies other regimes have from time to time given rise to. Democratic despotism, he says, would “be more extensive and more mild; it would degrade men without tormenting them.” In this sense, Tocqueville continues, “the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world.”

It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood. … it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things; … the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, … but it enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

The “shepherd” or, in current parlance, the “nanny.” It is depressing to contemplate the extent to which Tocqueville’s fears have been realized in contemporary American society. Indeed, simply tabulating the damage done to our culture by that “network of small complicated rules, minute and uniform,” would be a large and important task. Perhaps the most fearsome engine of democratic despotism has been the law —or, more accurately, the abuse of legal power to engineer mediocrity and conformity. Examples of this are legion. It is part of what the commentator Walter Olson aptly summed up as “the litigation explosion,” an explosion that has reverberated disastrously throughout society, affecting everything from the way we deal with one another on the job to the way we educate our children.

We were prompted to think about this gloomy phenomenon the other day when The New York Times, on March 11, ran a front-page story by Ethan Bonner reporting that high-school guidance counselors are being sued by parents if their children fail to be admitted to the college of their choice. We know it sounds ridiculous. But as a result of this latest legalistic folly, guidance counselors are taking out liability insurance and are becoming increasingly reluctant to disclose damaging truths to college admissions officials. According to Joyce E. Smith, executive director of the National Association for College Admission Counseling, “Counselors are becoming afraid of telling the full truth. They’ll write that Johnny took these courses and was a great student, but they won’t tell you that Johnny burned down the gym”—or, to take a real-life example, murdered one’s mother, as did one Gina Grant. Mr. Bonner reports that Ms. Grant killed her mother by striking her repeatedly on the head with a lead-crystal candlestick. This little detail was not included in her application to Harvard, even though the application asked about past criminal and disciplinary problems. In due course, she was accepted for admission until an anonymous mailing caused Harvard officials to reverse their decision.

One of the chief culprits in this grotesque situation is the Americans with Disabilities Act of 1990, one of the most destructive and politically correct pieces of legislation to be foisted on the American public since Lyndon Johnson’s Great Society programs in the early 1960s. As Mr. Bonner notes, past alcohol and drug use by students, which once would have been reported to college admissions officers as a matter of course, is now shielded under the Act. Ditto with other psychological problems. Thus it happened that the admissions dean at Lawrence University at Appleton, Wisconsin, found himself subject to investigation by the Office of Civil Rights at the Department of Education when he turned down a student whose grades plummeted after a nervous breakdown. The Office of Civil Rights ultimately cleared Lawrence, but only on condition that its application form no longer query counselors about “factors that might interfere with a student’s performance, either from discipline, chronic illness or emotional stability.” So being a drunk or a drug addict or a psychological wreck—to say nothing of having a criminal record—is apparently now to be regarded as a protected “disability,” and so such facts must not be taken into account when deciding whether a student is a fit candidate for admission to college. We have come a long way since the 1830s when Tocqueville penned his prophetic words. He saw only too well what was in the offing, but we think that even he might have been aghast at how accurately he foresaw what was to come.

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This article originally appeared in The New Criterion, Volume 16 Number 8, on page 1
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