Calming the discord

Impatient with the three branches of government established at the nation’s founding, the left routinely takes its politics to the streets now to demand remedies for “inequality” or “injustice.” Yet these inchoate demands have become so disconnected from the normal mechanisms of politics that no Congress, representing 535 elections, could possibly turn them into legislation.

Shortly after the Obergefell decision, something else of cultural and political significance happened. Within months, the left began to agitate for transgender rights, another moral claim whose substantive meaning is a mystery to most Americans.

Liberals remain incredulous at Mr. Trump’s election. But nearly half the electorate voted for him, and among the reasons is that today a lot of people—across all income classes—feel they are really being jammed by the culture. Progressive jurisprudence had a lot to do with this. Liberals won their share of court decisions, but at a price: The courts in America became an agent of social discord.

It would be good for the country’s stability if a Kavanaugh Court disincentivized the left from using the courts to push the far edges of the social envelope. This is not about turning back the clock. It is about how best to resolve bitter social and cultural disputes in the future. It is about no longer using the courts to make triumphal moral claims against the majority.

In the Kavanaugh Court, extending rights claims beyond their already elastic status is going to require more rigor than appeals to a judge’s personal sensibilities or a theory of social organization developed in law journals.

Advocates for social change involving race, gender, identity and such will have to convince representative majorities, elected by voters, to agree with their point of view. Unlike in the past four decades, the high court will more often weigh in after, not before, the political process has happened.

The United States needs to settle down politically ….

Daniel Henninger (emphasis added, paywall)

I’m less convinced than Henninger that the Roe v. Wade line of cases can survive a court that shows rigorous respect for the Constitution. Here’s why.

Not too long ago, I got into an internet dust-up with an progressive ignoramus who claimed that the purpose of the Constitution was to establish “rights.” I tried to correct him, and was treated as a monster for denying his dogma.

He was wrong, but he’s far from alone. It’s widely overlooked these days (though probably not widely ignored when mentioned) that the Bill of Rights are ten amendments to the constitution, the core purpose of which was to set up the rules for governing a new nation (duh!).

Among those rules were separation of the national government into three branches, with checks and balances among them, and with limitation on their overall power because states and the people would retain all powers not delegated to the national government.

So when an overreaching court seizes an issue from the States, although the Constitution left that issue to the states, that seizure is no less a violation of the constitution than when Congress makes a law, say, respecting the establishment of religion or prohibiting the free exercise thereof.

The Supreme Court Justices swear to uphold the Constitution, and take no oath to advance rights claims without Constitutional roots. Doesn’t that oath oblige justices to undue the mistake of a prior court that improperly wrested an issue away from those to whom the Constitution left it?

It’s pretty well known among legal scholars that the constitutional underpinnings of our abortion jurisprudence are somewhere between shaky and fanciful. There was a veritable cottage industry of attempts on the legal left to re-write the defective Roe v.. Wade opinion in law journal articles from 1973 to 1992, when Justice Kennedy replaced all the trimester crap and other Roe detritus with the equally risible “mystery passage” and invocation of stare decisis to avoid a “jurisprudence of doubt.” (“Shut up,” he explained.)

Perhaps a “Kavanaugh Court” would demur from overruling the Roe line of cases because frank overruling would increase an already-dangerous level of political discord. I suppose that could be justified on a “lesser Constitutional evil” theory (e.g., “If we honor federalism and return abortion laws to the states, where they belong, the whole Constitutional edifice could be toppled in the aftermath”).

In an era of Constitutional outrages, I don’t think that would be at the top of the outrage list, but I could fairly easily see it going the other way, too, especially if our political discord dies down before an appropriate case reaches the court.

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The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

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The autonomy ethic

My micro.blog account isn’t working as expected this morning, so I’m posting this here:

Justice Anthony Kennedy didn’t invent the shift from community to autonomy, but in 1992 he articulated it more crisply than anyone else: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

… You’d think [this “mystery of life” passage] would lead to a very small state that would leave a lot of freedom for people. In fact, it leads to a big, intrusive state. If you strip away all the communal commitments that help people govern themselves from within, then very soon you find you have to pass all sorts of laws to govern them from without. If you privatize meaning so that people get to follow their unrestrained desires, they immediately start tramping on one another, and public pressure grows for restrictive laws, like hate speech regulation, to keep things from getting out of control.

Any society has to perform at least two big related tasks — raising the young and pursuing of the good. It takes a village to do both these things. As Yuval Levin reminded us in an essay in First Things a few years ago, people are only capable of exercising responsible freedom when they are embedded in and formed by social institutions — like family, schools that take morality seriously and a shared civic order. It’s not a do-it-yourself job.

The autonomy ethos forgets this. Justice Kennedy channeled it in its purest form.

David Brooks Much more could be said, and some already has been said, about Justice Kennedy’s wooly-headed “swing vote” jurisprudence in some areas of law, but the “mystery passage” is likely the wooliest.

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The waters are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god.

(Sir James Fitzjames Stephen)

Reality is that which, when you stop believing in it, doesn’t go away.

(Philip K. Dick)

Place. Limits. Liberty.

Some succinct standing advice on recurring themes.

Where I glean stuff.

Unintended consequences

One of the minor irritants in my life is the tacit equation of “discrimination” simpliciter with “invidious discrimination,” as when people prattle about “ending discrimination” without any qualifiers.

That’s idiotic. By itself, discrimination can be synonymous with discernment. And I don’t have to make up examples, because WalMart and Dick’s Sporting Goods are going to get schooled on that by some aggrieved 18-year-olds in some of the 18 states plus the District of Columbia that ban discrimination based on age in places of public accommodation.

So feel-good discrimination bans bump up against feel-good corporate policies approved mostly be the same sorts of folks that loved the discrimination bans. Whatever else this day may bring, knowing that little irony is a silver lining.

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Some succinct standing advice on recurring themes.

Where I glean stuff.

Sins of the fathers

[T]he public debate about how Congress ought to respond to this latest mass shooting is guided by two broad principles. Dubious on their own, they are even more witless when combined. The first is the idea that the most important thing is to “do something.” The second is that we ought to look to high-schoolers for the answer.

This in no way diminishes the barbarity of what happened to the Parkland students. It is, however, to insist on the obvious: As terrible as their experiences were, the attack gives them no special insight into the complex array of public policies that might have prevented the slaughter.

… Is it really so unreasonable to insist that those pushing specific legislation or regulations provide evidence that the something they want done will in fact produce the results they claim?

It’s not just conservatives who have doubts. In an October 2016 article in GQ, the Guardian’s full-time gun-politics reporter conceded she was “shocked by how little evidence there was behind some of the most prominent gun control policies.” The year before, right after the San Bernardino killings, the Washington Post fact checker backed Mr. Rubio’s claim that gun laws would not have prevented any of the major shootings the nation had seen in recent years.

(William McGurn, Our Childish Gun Debate, Wall Street Journal)

I agree with every word of that, but I’ve been disturbed for years by the anti-legislation trope that, in effect, “there’s nothing effective we can do because there already are so many guns out there.” A case against gun control by David French took substantially that tack:

  1. Do people have a right of self-defense?
  2. Does that right include that the self-defense be effective?
  3. If so, you mustn’t ban AR-15s because they are in common use, only law-abiding citizens will yield them up in compliance with a ban, and such a citizen, defending against a criminal’s AR-15, is relatively ineffective if they’ve got something less.

The logic speaks for itself. Few deny the right of self-defense. The whole premise of trying to ban AR-15s is that there are so many of them and they’re so lethal. So only by denying the right to effective self-defense can most people support such a ban.

[Aside: If anyone from the left coast is reading this, I’d also caution you that people who live far from the police station in flyover country, not to mention those who live in rural areas and need to deal with varmints, will not be amused by a ban. Remember “bitter clingers’? Now they’re known as Trumpistas.]

I have no solution to the conundrum, but I now have a convenient myth to explain how we got here (“here” being zillions and zillions of guns protected by the Second Amendment): America’s original sin got us here. It’s especially convenient since, unlike the demonization of the NRA, it’s plausible:

The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference – see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

In the beginning, there were the militias. In the South, they were also called the “slave patrols,” and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.

By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down slave uprisings. As Dr. Bogus points out, slavery can only exist in the context of a police state, and the enforcement of that police state was the explicit job of the militias.

(Thom Hartmann, The Second Amendment was ratified to preserve slavery. H/T Lindsey Nelson on Facebook)

It’s tempting to “go full Jeremiad” and revert to Jonathan Edwards’ “Angry God” as the proximate cause of the gun plague and school shootings.

But I don’t know that we need that hypothesis. Sin ramifies. Sow the wind, reap the whirlwind. Poetic justice.

Pick your proverb. The dots connect intuitively for me, even if it’s difficult to articulate.

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Where I glean stuff.

The latest school shooting

Two takes:

We discuss motives, but isn’t it always the same motive? “I have murder in my heart.” Why do so many Americans have murder in their hearts?

We know. We all say it privately, but it’s so obvious it’s hardly worth saying. We have been swept by social, technological and cultural revolution. The family blew up—divorce, unwed childbearing. Fatherless sons. Fatherless daughters, too. Poor children with no one to love them. The internet flourished. Porn proliferated. Drugs, legal and illegal. Violent videogames, in which nameless people are eliminated and spattered all over the screen. (The Columbine shooters loved and might have been addicted to “Doom.”) The abortion regime settled in, with its fierce, endless yet somehow casual talk about the right to end a life. An increasingly violent entertainment culture—low, hypersexualized, full of anomie and weirdness, allergic to meaning and depth. The old longing for integration gave way to a culture of accusation—you are a supremacist, a misogynist, you are guilty of privilege and defined by your color and class, we don’t let your sort speak here.

So much change, so much of it un-gentle. Throughout, was anyone looking to children and what they need? That wasn’t really a salient aim or feature of all the revolutions, was it? The adults were seeing to what they believed were their rights. Kids were a side thought.

… A nation has an atmosphere. It has air it breathes in each day. China has a famous pollution problem: You can see the dirt in the air. America’s air looks clean but there are toxins in it, and they’re making the least defended and protected of us sick.

(Peggy Noonan)

Nobody will say the exact words “the foundational document of our government essentially requires that we suffer mass murder again and again with no recourse,” but that is what they will be telling you.

(Elizabeth Bruenig)

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Some succinct standing advice on recurring themes.

Where I glean stuff.

Squashing civil society & culture

Once again, I’m attending the Eighth Day Symposium, this year on the topic of “Cultivating Friendship in a Fractured Age.”

One plenary speaker is Ken Myers of Mars Hill Audio Journal. Today from him, one insight, starting with a greeting from “blessed souls depicted by Dante” (presumably Paradiso):

“Here comes one who will augment our loves.” Friendship is an analog of the heavenly community in which the multitude of the Blessed, and I think this is Dante’s term, “increases the fruition each has of God.”

Friendship is an analog of the Church ordered by love and gifted to one another by what Augustine calls a kind of divine lottery. All true human communities are imperfect, incomplete but nonetheless real anticipations of the Church’s life in its fulfillment.

One reason such a claim may sound implausible is that modern politics has undermined the centrality of sharing of common objects of love to define a community by insisting that the point of government is to protect the rights of individuals within the society to love what they want to love. All efforts within communities that attempt to nurture well-ordered loves for what ought to be loved are squashed in modern societies in the name of individual freedom.

So modern states end up enforcing what Pope Benedict call “the dictatorship of relativism.”

(Bold added; underlining emphasized in the original speech pattern.)

So when asked to identify our common objects of love, phrased as “What Unites Us?“, we come up with idiocy like “diversity” unites us!

I would go further than Ken Myers to suggest that by government squashing “efforts within communities that attempt to nurture well-ordered loves for what ought to be loved,” government is squashing community itself, civil society, culture and mediating structures, with the effect (which I suspect is “a feature, not a bug”) that the dictatorship of relativism is manifested in an anti-culture wherein those de jure “free” individuals stand naked and de facto powerless before the state.

UPDATE: I revised the final paragraph, which began with one or two too many snarky asides to be readable.

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“While saints are engaged in introspection, burly sinners run the world.” (John Dewey) Be a saint anyway. (Tipsy)

Some succinct standing advice on recurring themes.

Where I glean stuff.

Spitting in the soup

That people associated with a university would invite a hateful mythmonger like Richard Spencer to campus is a tragedy; but it’s a greater tragedy that someone like Spencer is a public figure at all. That’s not something that even the best university administration can fix.

I might add that when people say that they want conservative ideas to be represented on campus and then invite Ann Coulter or Milo or Richard Spencer to speak, they have zero interest in ideas. They just want to spit in their neighbor’s soup.

(Alan Jacobs, part of his delayed reaction to the New Atlantis article I recently alluded to)

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Some succinct standing advice on recurring themes.

Where I glean stuff.

Once more, slowly, for the idiots

David French tries to set the record straight on Masterpiece Cakes, scheduled for argument in the Supreme Court Tuesday.

Forgive me for starting a piece with the oldest cliché in the practice of law. As the saying goes, “If the law is on your side, pound on the law. If the facts are on your side, pound on the facts. If neither are on your side, pound on the table.” In the run-up to the oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission on December 5, we’re seeing a lot of table-pounding from the Left. In fact, I’ve never seen a case more mischaracterized in my entire legal career.

The actual facts of the case are crystal clear. Jack Phillips, owner of Masterpiece Cakeshop, refused to custom-design a cake to help celebrate a gay wedding. As a Christian, he finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong. In fact, he’d frequently declined to design cakes that advanced messages he found to be offensive. But he never, ever — not once — discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.

Two years ago, in the Obergefell opinion, [Justice Anthony Kennedy] wrote this:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

If Justice Kennedy holds to this view, then not only does the First Amendment win, nondiscrimination laws won’t lose. Phillips isn’t discriminating on the basis of sexual orientation. If Kennedy changes his mind, then he’ll erode vital American constitutional traditions and doctrines. The sexual revolution, not the Constitution, will be the supreme law of the land.

That old cliché explains why it will be hard to set the record straight. Neither the law nor the facts favor what Colorado has done to Jack Phillips, the proprietor. Only the inexorable demand of the sexual revolution to eradicate all wrongthought and wrongthinkers supports it.

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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)

Some succinct standing advice on recurring themes.