Archive for September 2010
During this, a slow blogging week for me in the midst of finishing a 145-page brief (a misnomer if ever there was), I offer the following unlikely parallel. First, take Jason Kuznicki’s piece blasting Obama’s targeted killings, in which he writes:
Even the Tea Party is silent. Where are you guys, seriously? Why aren’t you resisting this shameless power grab by faceless, unelected, smarter-than-thou bureaucrats? You were outraged by death panels, but death squads get a pass? Forgive me if your politics leaves me cold. You say you oppose Obama? Everywhere but here?
. . . .
It baffles me that this isn’t the political story of our time. It further baffles me that a new, libertarian, anti-government movement rose up in our time — and was silent about this issue. Or that it was quietly on the other side.
Then there’s this article by Nancy Pearcey arguing it’s time for pro-lifers to push back on abortion as being “anti-science.” Which I agree with, by the way. The argument that “fetuses” can be deprived of “personhood” is because they’re just a “blob of cells” betrays a poverty of understanding of the seriousness of the question. Of course a fetus is a “blob of cells.” But so is a six-month-old, a six-year-old, and a sixty-year-old. As the article points out:
James Watson of DNA fame recommended giving a newborn baby three days of genetic testing before deciding whether the child should be allowed to live. Singer considers personhood a “gray” area even at three years of age.
See? Some really smart scientists argue the line could be drawn much, much further out. So by drawing the line at the third trimester, abortionists are really quite humanitarian about the whole thing.*
Back to the parallel. Both pieces represent a call-to-arms on issues the writer holds to be of utmost importance. This advocacy for moral re-prioritization lies at the heart of most significant political agitation. Kuznicki here excoriates Tea Partiers for not being as upset as he is over the president’s execution orders being made without a trial. But one could argue that it is Kuznicki who fails to exhibit the appropriate level of moral disgust or issue any rallying cry over the approximately 3,700 abortions that occur each day. Pearcey is concerned about all those aborted children, but then again, is she showing enough concern for all the poor, neglected, or abused children among us? Or what about the environment we’re bequeathing to all the future children?
It should not be that difficult to understand what gets people riled up as they do. There are enough people who hate the idea of tax-hikes, and hate it enough to let you know about it. Same with the idea of more and more of our lives being subjected to the impenetrable and ever-expanding administrative state. (The ~2,300 page PPACA, for example, will become literally tens of thousands of pages after Sebelius’s team of regulatory lawyers are finished with their initial set of regulations.)
But military operations? They literally just don’t hit home. That’s not to say they don’t draw opposition. I have not researched the facts behind these strikes, but I’m sure I could drum up some criticisms.
Does this mean we should start fastening sticks to poster boards and haranguing traffic? More to the point, does it mean if you don’t take to the streets on this issue you waive the right to voice dissent over any other political issue? Of course not. It takes all types to make political society work. It is over-thinking things to suggest that, to vociferously protest an administration’s economic policies but to not-so-vociferously protest its military policies, betrays some deep moral failing.
*But what is actually more striking about this is the fact that a molecular biologist and zoologist is passing on any questions of “personhood” in the first place. When scientists and their fans advance science-ish arguments in favor of things like abortion, there is an initial period where the arguments tend to have a lot of traction. But after a time, the arguments start warranting a second look. Why in the world does a molecular biologist have any special authority to opine on personhood? The ploy starts to reveal itself: All the aspersions scienceists cast upon philosophers and theologians are part of a smash-and-grab job to take over the moralizing function in the first world community.
“The court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing,” Breyer writes. “Rather, the court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.”
Judges should go about this, Breyer says, using “traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects.”
The bolded sentence struck me as odd, so I fired up my trusty desktop thesaurus to check something out. Synonyms for “unwavering” include, among others, “stiff” and “unbendable.” Synonyms for “flexible” include, among others, “elastic” and “pliable.”
Perhaps Breyer is shrewder than I gave him credit for. This will surely pique the interest of many potential book-buyers as to how something “stiff” and “unbendable” can be “flexibly” and “elastically” applied. (Perhaps soaking it in water 24 hours before application?) If I didn’t already know this was standard, non-interpretivist liberal hokum, I might have been among them.
I previously proposed a thought experiment to help elucidate some points in the same-sex marriage debate. I refrained from giving away too many of my opinions and observations at the time, seeking instead to get some initial reactions in the comments. Now that it’s been several days, I’d like to offer some further thoughts now.
I submit that what happened to “Pairriage” in my hypothetical is similar to what’s happened with marriage. A key distinction, however, is that the marriage tent has become so large that many of those who engage in it do so unthinkingly, without due regard for its history, its meaning, its sacredness. Such participants can offer little defense against the institution’s being changed, and in fact undermine the argument against maintaining a “traditional” definition of marriage. That is, with divorce rates as high as they are, and there being nearly as many jokes about the travails of marriage as the decrepitude of lawyers, it is natural it would strike one as perhaps odd that, seemingly all of a sudden, everyone is amped up about defending the thing. “It may be a misery,” marriage supporters seem to be saying, “but the misery belongs to us.”
But this is one of the points the “pairriage” hypothetical makes. The institution means something to many people. Once a thing like that reaches a critical mass, it takes on its own gravity, and others will join up just because it’s part of the culture. The guardians of the institution will still require at least a symbolic, formal recognition and compliance with its basic guidelines. But there will be no way to ensure all its participants share the same values and with the same fervor as the guardians themselves.
Moreover, to say that many participants initially might give only symbolic, formal recognition, this is not for nothing. Just saying the words may not make you a true believer, but it establishes a presumption that, all else being equal, you owe some manner of fealty to the thing to which you pledged.
Those who do still cherish the institution as originally understood, however, will seek to prevent its meaning from becoming irreparably lost. They do not participate in the institution merely because it is convenient to call one’s mate a “husband” or a “wife,” or a “pairree” or “pairr-ot” or whatever, or to achieve implicit acceptance beyond the sphere of those who would actually bear witness to one’s relationship. They find value in the institution beyond the neologisms that may have developed incident to it. They would rightly resist those who, though purporting to seek entry into the institution, really just want to scrap it for parts.
Perhaps most importantly, the state is merely a reactive participant in this social play. The state does not define our social institutions, it merely reflects the definitions we create through our morals, values, religious beliefs, habits, customs, and traditions. These are important aspects of human life. Though, of course, they may often prove unpleasant when disagreements arise, often involving rebuke and rejection from certain communities who adhere to an ever-expanding force in the lives of individuals and the communities they inhabit. Thus, if the state so chooses, it could effectively usurp the institution of marriage and redefine the relationship along whatever lines it chooses. This should give one pause. In fact, there is even much concern in allowing the zeitgeist this power to usurp, plunder, and desiccate our social institutions. But there is an even greater, much more palpable concern in permitting the courts to wield this power.
The whole “you don’t have to have evidence” flap is interesting for a few reasons. One is the misdirection and misrepresentation by Judge Walker, as Ed Whelan pointed out in this piece. Another, by extension, is the fact that there is, indeed evidence of the procreative purpose. One of the best kinds of evidence—judicially noticeable evidence, as it has been repeated throughout judicial opinions and historical and other well-established works.
But the strongest argument is that even despite what the current social science academy and relatively young and shallow data set might establish, there is a centuries-old recognized presumption that marriage does in fact aid, promote, stabilize, and secure the continued procreation and child-rearing within the population. New data—even were it actually scientific data rather than the observations of social scientists—cannot overcome a settled, centuries-old understanding. The law does not expect that the people maintain a perfect one-to-one correlation with the latest in scientific understanding. The “laboratory of democracy” metaphor does not apply here. See, e.g., Everett v. Paschall, which I touched on in my initial thoughts on the Perry decision.
Thus, new social science data is a nonstarter unless we are talking about a non-fundamental right. Instead, what plaintiffs would have had to show was animus—that the voters didn’t actually care primarily about preserving marriage for procreative or other legitimate purposes, but instead because they want to injure homosexuals. Justice Kennedy did hold for the Court in Romer v. Evans that Coloradans expressed “animus” in enacting its constitutional amendment to strike down municipal affirmative action laws favoring homosexuals. But the Court based that finding on the fact the discrimination was “unusual” and “unprecedented.” A law enshrining the traditional definition of marriage certainly does not fit that standard.
Man is rational; but also man is rebellious and depraved, and his evil impulses cannot be controlled by the Law Rational alone. If men are to live in society, there must be provided checks upon their wills and appetites. Scripture, though unerring, does not furnish a complete set of rules by which men may govern themselves in all circumstances and ages. Therefore men have developed, and submitted themselves to, what Hooker calls the Law Positive—enacted law, that is, law enforced by the commonwealth. To set aside that positive law would be to ruin all civil social order.
. . . .
So Hooker is a convincing exponent of the idea of continuity—of the principle that in concerns of both church and state, we must seek to link generation with generation. Churches and states are immortal corporations: if we break down established laws, thriving customs, and beloved ceremonies, we rashly ignore the lessons of the past and endanger society’s future. Our religion, our culture, and our political rights all are maintained by continuity: by our respect for the accomplishments of our forefathers, and by our concern for posterity’s well-being. Just as the individual human body can survive only if its vital continuity is maintained during its processes of organic change, so the Church and the civil social order must perish unless law and custom remain the same from year to year, decade to decade, century to century. Any man is foolish who disregards the beneficent incorporation of society, which goes on though individuals perish; for it is not in the power of anyone to create a new church or a new society out of whole cloth.
Russell Kirk, The Roots of American Order.
Correction—it’s a pre-recorded piece that will air between 3:00 and 5:00 PST, hopefully today or perhaps next week.
UPDATE: I’m now told it will air at 4:30pm PST today, Friday, September 17. 740AM, http://www.kbrt740.com to listen online.