If you follow this stuff online, you might have noticed that conservatives have been having a bit of a mini-meltdown in the wake of the Supreme Court’s recent rulings on health care and gay marriage. (There was also a lot of griping about a third decision on disparate impact in housing policy, but since it’s still unclear how that decision will actually play out in practice, most of the attention to that case has been limited to hard-core legal nerds.)
The first case was kind of a confusing, inside-baseball decision that nevertheless had major repercussions. Essentially, Republicans argued that the Affordable Care Act (ACA) — popularly known as “Obamacare” — needed to be implemented exactly as written.
Why was this an issue? This is where the story gets really confusing, but I’ll try to give you the layman’s version: A strict interpretation of the text of the law would be a massive political headache for the Obama administration, because it would make health care outrageously expensive for folks living in states that did not choose to cooperate with the federal government on implementing the ACA. Naturally, the Obama administration wanted to avoid the resulting storm of controversy if at all possible, so they directed that the federal bureaucrats charged with implementing the law adopt a more loosey-goosey interpretation that made the problem go away.
Thus, conservatives who were against the law in the first place went to court to argue that the law should be carried out exactly as it appeared in print. Their goal — which was a bit odd, but understandable — was to force the Obama administration into an impossible situation created by its own rules. They were basically playing the role of those pests at your Christmas party who insist that the rules of the Fun Board Game you introduced in order to break the ice must be followed TO THE EXACT LETTER as specified in the little pamphlet that comes in the box and lists the official Game Rules.
(Here’s a fun little fact, folks: Those game rules on the little pamphlet? They’re designed to be largely ignored. I took a class on game design at USC and got this straight from the mouths of people who design board games for a living. The “rules” are actually designed for a small subset of players who take all this stuff really seriously and spend their time playing against other players who take the game really seriously. Most game designers, believe it or not, actually expect you to sort of wing it when you’re sitting at a party playing the game with friends; they actually designed the game to make it easier for you and your pals to just wing it when you’re playing for laughs at a party.)
What the Republicans were doing here was not very nice, and not very sporting, and for that reason, it understandably made Democrats extremely annoyed — if you tried to pull this kind of rules-lawyering stunt at your kid’s Little League game, you’d get ejected. In the GOP’s defense, though, politics ain’t Little League; it’s serious business, and the GOP was seriously annoyed by the ACA.
Anyhoo: Led by Chief Justice John Roberts, the court sided with the administration that the law could be implemented as the administration saw fit. This was bad enough for a number of reasons, including that it raises questions about just how much discretion the president has when implementing laws.
But then came the second case. The court’s second big decision was much more straightforward: In a decision authored by Justice Anthony Kennedy, the court ruled that gay marriage is a fundamental right, striking down state laws across the country which had forbidden the practice.
Now, you should know right up front that I’m a supporter of gay marriage. Always have been. I supported it back when supporting it was more than just a fashion statement, back when 90+ percent of Americans were telling pollsters they could never support such a crazy idea. I didn’t just suddenly discover I’m in favor of it because my favorite celebrity Tweeted about it. I thought about the issue and came to my conclusion back when doing so was hard and deeply countercultural and counterintuitive.
The reason this matters is because I was deeply troubled by the court’s gay marriage ruling. Nor was I the only gay-marriage-supporting right-winger who was disquieted by the ruling, and its subsequent reception. Why would I oppose a ruling whose result I agree with?
Because gay marriage is a very big deal. And as a conservative, I don’t much like messing with tradition, even if the tradition appears silly on its face. To quote G.K. Chesterton,
Tradition means giving a vote to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom;
(Note: Chesterton was a stuffy, traditional Englishman; his use of “groom” in this context means “a personal servant” such as a butler — it doesn’t mean the bridegroom at a wedding.)
tradition asks us not to neglect a good man’s opinion, even if he is our father.
Furthermore, as Chesterton would probably say: Traditions are usually traditions for a good reason, even if it’s not a reason we can presently discern. Yes, the dead hand of the past must occasionally yield to the needs, experiences, and updated knowledge of the present; but the present should never be so arrogant as to assume that what it takes to be “DEVASTATING” arguments never even occurred to the wisest minds of yesteryear.
Pro tip: If a snotty 20-year-old can whip out an argument in the form of a #hashtag or a meme, it’s highly, highly unlikely that the same #sickburn objection completely failed to flicker up in the minds of the deepest thinkers on the planet for thousands and thousands of years. (I wish someone had pointed this out to me back when I was a snotty 20-year-old; it would have saved me a lot of confusion over the years.)
Because of all that, I don’t believe it’s wise to upend established tradition without a great deal of buy-in from the wider society. I know this is a hard principle for some folks to understand, but the mere fact that I consider something (like gay marriage) desirable does not automatically mean I believe the courts should read it into the Constitution when it manifestly isn’t there. There are larger principles at stake. It is imperative that major changes, such as a redefinition of marriage, be seen to possess democratic legitimacy by being approved by institutions which are directly accountable to the people.
The Supreme Court, and the court system in general, are quite deliberately set up to NOT be accountable to the people. Most judges have lifetime tenure and can only be forcibly removed from office through some kind of legislative impeachment. The purpose, of course, is to allow judges to make their decisions in an environment free from the fleeting passions of the unruly public.
That’s the way it’s supposed to work in theory, anyway. In practice, judges are as political as anybody else. And with its gay marriage decision, the justices were quite transparently making a decision entirely motivated by current prevailing political sentiments, rather than timeless truths and principles which exist independent of popular fashion.
Which is just fine, I might add — as long as everybody lays their cards down on the table, for everyone to see. This has been a recurring theme in much of the right-wing reaction to the court’s decision: The reaction has been less about deploring gay marriage (which has been inevitable for a while now) than deploring the fact that the Supreme Court has effectively become a nakedly political institution.
“The Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want,” Kevin Williamson writes at National Review. (It bears mentioning that Williamson, like me, is a conservative who is largely favorable towards gay marriage.)
He goes on to say that
The gentlemen who wrote the Constitution did not get around to enfranchising women or abolishing slavery, but they snuck in a constitutional right to gay marriage that we’ve somehow overlooked for 228 years or so: No mentally functional adult, regardless of his views on gay marriage, should be expected to pretend that that is true.
Justice Antonin Scalia’s riveting dissent expands on this point:
The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not.
That last bit is a roll call of the greatest judicial minds to ever sit on the U.S. Supreme Court — hence my little bit earlier about the “deepest thinkers on the planet for thousands and thousands of years,” etc., etc. There is not a single thing in the U.S. Constitution which explicitly authorizes gay marriage, but if we are to tease such an interpretation out of the document’s text, the question arises: Why not push the Supreme Court to adopt “interpretations” favorable to conservatives? If we’re going to force Alabama to adopt San Francisco’s view of marriage, why not force San Francisco to adopt, say, Alabama’s gun laws?
As Andy McCarthy pointed out, also on National Review, nobody ever wonders how the Supreme Court’s four liberal justices are going to vote:
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards.
Well, if THAT’S the way they’re going to play it, the thinking goes, maybe it’s time for right-wingers to get in on the act. Who knows what kind of wonderful conservative policies could be enacted if conservative lawyers and judges decided to start “discovering” rights that are not explicitly laid out in the Constitution?
Oddly enough, if gay marriage advocates, like abortion advocates before Roe v. Wade, had been willing to wait a little longer and let the democratic process play out, it’s likely they would have gotten everything they wanted across probably 90 percent of the country, without ever having to hassle the courts about it. The cultural currents were already moving swiftly in their direction; it probably wouldn’t have taken more than a decade. And while you can argue that in a matter of this importance, it has to be 100 percent or nothing, you have to balance that against the fact that this victory would have stood on far more solid ground; opponents who were beaten fair and square at the voting booth would likely be inclined to retreat in shame, rather than talking about more radical measures, such as Constitutional amendments or Ted Cruz’s offbeat plan for federal judicial retention elections.
By taking the measure off the table for voters, the court, as with abortion, has not eliminated the controversy; they’ve dumped gasoline on the flames. Again, as with abortion, this could come back to haunt the Left in unexpected ways.
Of course, some of the right’s bitching over the past week can be chalked up to the usual sour-grapes grousing that both sides engage in when a major Supreme Court ruling doesn’t go their way — liberals had a similar sort of meltdown after Bush v. Gore essentially handed the election to Bush back in 2000. Last week was especially bad for conservatives, so they’re gonna vent a little bit.
But I think we’ve really reached a watershed moment here — the usual post-decision bellyaching you’re seeing here has quite a different tone. A lot of it probably has to do with the pronounced turn towards fascism that has cropped up in the gay-rights movement lately — with particular venom being aimed at orthodox religious believers. Conservatives — correctly, I believe — are quite worried that the groundwork is being laid to use the resources of the state to marginalize and punish religious dissenters. Liberals aren’t exactly helping matters, with some explicitly calling for an end to tax exemptions for religious institutions. Christians and conservatives rightly see this sort of thing as an extremely serious threat. Rod Dreher at The American Conservative has been writing mournfully in recent months about what he terms the “Benedict Option” for Christians (named after Saint Benedict, one of Christianity’s most prominent advocates for monasticism) — the notion that Christian traditionalists may now, much like the Amish, be required to withdraw from most aspects of public life, because there will increasingly be no way for them to participate while remaining true to their faith.
And all of this talk brings me to a question I’ve been wondering about for some time now: Whether it’s possible, in a nation as large and diverse as the United States, to maintain an authentically consensual form of government — and if not, whether that might portend some form of “national divorce” of the sort that sparked the Civil War. (Others have noticed the same thing — here’s law professor Glenn Reynolds — aka, Instapundit — writing about it in USA Today.) Speculations about the form such a divorce might take — secession? Constitutional amendment? — and what might bring it about are beyond the scope of this blog post, but I am beginning to wonder if the outcome might be inevitable — “E Pluribus Unum” might not be sustainable over the long term.
I come at this from a unique perspective. I grew up in Alabama, but I lived for several years in Los Angeles, California. These two places are so far apart in many ways that they might as well be separate countries. Yet they’re officially both under the same political jurisdiction — the United States of America. How is that possible?
Well, for much of our nation’s history, it’s been possible because of our nation’s huge size, coupled with the federal structure established by our Constitution, which allowed states wide discretion in managing their own affairs. That principle has been severely tested at times — most notably over the issues of slavery and civil rights — but with the exception of the Civil War, it’s held up reasonably well. The court’s ruling on gay rights, coupled with the rising intolerance being displayed by the Left, make me wonder how much longer this can endure.
Basically, there are only two ways a state like Alabama and a state like California can coexist under the same government:
1. A laissez-faire federalist approach that more or less lets Alabamians do their own thing (within certain limits) while allowing Californians to do their own thing (within certain limits), and where neither state tries to bully the other into adopting its preferred customs and laws.
2. A tyrannical centralized approach which squashes one state’s customs and laws while turning the other state’s customs and laws into a compulsory, uniform model for the entire country.
The Reynolds column I linked to above pushes the idea that all we need is more federalism to cure what ails us, and indeed, this is the standard remedy routinely prescribed by conservatives to deal with our national fractiousness. And it all sounds good — in theory.
But federalism has its limits. It is not a strong enough framework to contain rival worldviews which regard each other as mortal enemies. One can almost hear liberals clearing their throats at this point, preparing to bring up the South’s troubled history of racism and segregation as an example of a time when a state’s “customs and laws” SHOULD be smashed in the name of “justice.”
And that’s not a bad objection. Professor Reynolds likes to talk about “The Hunger Games” series as a metaphor for federalism — but isn’t Balkanization the dark side of federalism? What if the benighted residents of the various Districts of Panem (the fictional world of “The Hunger Games”) were like rival tribes of Tutsis and Hutus pining for their cultural “right” to commit genocide against each other? Would not the heavy, tyrannical hand of Panem’s aloof Capitol then be justified in squelching the cultures of each region?
More to the point: Wouldn’t most (white) Southerners admit — if only under their breath — that in the long view of history, Sherman’s brutal march and the subsequent punishing Reconstruction were ultimately a blessing for the South, purging the region of many of the desiccated, backwards customs which were holding it back? Isn’t this a prime example of when the “tyranny” of the central government is actually the key to greater freedom and prosperity for all?
All of these are fair points. Except that liberals then proceed to analogize that to every other cause of the Left. Every state in the nation must be made into a clone of Vermont, and if you don’t agree, you’re morally indistinguishable from George Wallace and Bull Connor.
But not every issue can or should be viewed through the lens of slavery, segregation and racism. And I don’t believe the Left fully appreciates how much they are overreaching with their insistence on turning everything into a holy crusade on the same moral plane as the the civil rights movement in 1960s Mississippi.
Liberals really don’t seem to get that for orthodox religious believers, homosexuality and race are two very different things. A lot of liberals — President Obama, for example — seem to believe that now that the Supreme Court has “settled” the issue, religious believers can and will quickly revise their views to take into account the new reality. Did not those racist bigoted Christians in the South quickly change their tune once segregation was ended?
I heard Mollie Hemingway talking about this on a podcast the other day — she pointed out that the Left is probably going to be rudely surprised at how stubborn conservative religious organizations will be on this issue. If so, their surprise will be directly traceable to the widely-mistaken assumption on the Left that gay rights is exactly analogous to the the fight against racism. This kind of misunderstanding is only possible for someone who is almost wholly unacquainted with serious believers or with the history of Christianity.
The following might seem tiresome and basic for Christian readers, but allow me to dwell on it at length for the benefit of those who don’t know about this stuff: Yes, Christianity was indeed once cited to justify racist beliefs and policies. (So, at various times, were Judaism and Islam.) But racism was never considered a core part of Christian doctrine (or Jewish doctrine, or Muslim doctrine — by the way, if you want an example of a major world religion with racist ideology encoded into its very DNA, let me introduce you to the caste system of Hinduism…).
It was relatively easy for white Christians in the South to drop the idea that racism was a Biblical mandate because that idea hadn’t really been there in the first place — it was a novel interpretation that had been promoted to serve an explicitly political purpose, so when the political winds shifted, it was fairly straightforward for even the hardest of hard-core Southern fundamentalists to remove it from their received dogma and toss it on the junk heap.
(Need more proof? How about this: In the New Testament’s Book of Acts, in the Bible’s first detailed account of one of the Apostles converting a stranger to Christ, the convert is a black man — the text describes him as “Ethiopian,” which at the time Acts was written was essentially synonymous with “black.” The presence of black people as members in good standing of the Christian community therefore predates that of all white Europeans. Going outside the Bible, the two most highly-respected theologians of the early Christian church — Augustine and Athanasius — were both from Africa. While it’s unlikely that either was “black” as we understand the term today, it is virtually certain that both men had many, many black followers. The fact that neither of these church fathers left any record that they considered their black coreligionists any different from anyone else is extremely powerful evidence against the claim that racism has any authentic historical foundation in Christianity. Black Africa had a huge, thriving Christian community for centuries before most lily-white “Aryan” Europeans had ever heard of this Jesus of Nazareth fellow. And of course, it’s worth noting that black Christians have a long tradition of portraying Jesus as a black man.)
In the case of homosexuality, though, the dogma is right there in black and white:
Leviticus 20:13: If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.
The language of the King James Version is a little quaint, but there is practically no doubt among biblical scholars of any stripe that this verse is talking about homosexuality. (Biblical literalists might also cite the story of Sodom and Gomorrah, though I find this passage far less persuasive as an argument against homosexuality per se. The way the story is written, the people of Sodom and Gomorrah sound like absolutely horrible human beings who would deserve God’s wrath even if they were super-duper heterosexual; there is nothing in the text to suggest their sexual proclivities in particular were offensive to God. They just seem to have been wicked people all around.)
Okay, that’s fine, you might say — but that’s the Old Testament, and many of the holiness codes laid out in books like Leviticus are not considered binding for Christians. Very well. But here’s the Apostle Paul — whose theology is binding for Christians. In the first chapter of his letter to the Romans, in the midst of a discussion about sinners, he mentions
For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet. (Romans 1:26-27)
Again, the KJV text is obscure for modern readers, but there is little doubt among biblical scholars about what Paul was talking about. Here’s the more-comprehensible rendering of the above two verses from the New International Version:
Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.
Now, it should be said that many sincere gay Christians have developed interesting arguments that Paul is not really condemning all homosexuals with passages like this. And I have to agree that understanding the cultural context in which Paul was writing this stuff does tend to soften things a bit, as it does with nearly all of Paul’s harshest-sounding pronouncements.
It’s always important to remember that Paul lived in a very tough time, he made it a habit to consort with some very tough people, and he occasionally resorted to very tough language because that was probably the best way to get his point across to his very tough audience. When you’re reading Paul, I find it’s helpful to picture a guy trying to preach the Gospel in the middle of a loud, rowdy biker bar — given the atmosphere he was working in, he’s not exactly going to come across as a First Century version of Mister Rogers. (Neither, for that matter, would Jesus himself.) Anyhow, it is highly unlikely that Paul had any experience whatsoever with “homosexuality” as we currently understand it; many of the specific customs and practices Paul probably had in mind when condemning “homosexual” behavior would be considered unacceptable today even by a lot of people who enthusiastically support gay rights.
Going even further: Some historians have made thought-provoking claims that the early Christian church was not really all that intolerant about homosexuality, and might have even allowed gay marriage.
True? False? I am not a theologian or a historian; I’ll leave these issues to them to hash out. I present these ideas merely in order to give both sides a fair hearing.
Nevertheless: It is undeniable that for the overwhelming bulk of Christian history, it was commonly assumed by all literate people that Bible passages such as these strictly proscribed homosexual behavior. Unlike with racism, this was NOT a highly debatable interpretation promoted by a small faction out of pure self-interest; for most of the last 2,000 years, the idea that homosexual behavior was compatible with Scripture was considered about as unthinkable as rewriting the Ten Commandments to permit adultery. These notions cannot simply be edited out of the Christian tradition just because they are currently regarded as politically distasteful. Christian history — as well as Jewish and Muslim history — make it very clear that believers should prefer death to renouncing the core tenets of their faith.
Oh, one more thing — a lot of black people explicitly reject the analogy between racism and homophobia. Orthodox Protestant Christianity is far and away the most popular religious tendency among black Americans, and that religious tradition forcefully rejects homosexuality.
What this means, in a nutshell, is that religious objections to homosexuality in general, and homosexual marriage in particular, will not quietly be going away any time soon. And if the Left is determined to force the issue, that will pose a real problem.
Let’s return again to the example of abortion: The Supreme Court’s decision in Roe v. Wade did not “settle” the issue; it unleashed a torrent of controversy which arguably played a key role in reviving the American Right during the 1970s and 1980s. It was so inflammatory that it even led to the development of a small, but very real domestic terrorist movement.
Well, gay marriage could very well prove to be far more explosive than abortion. As abortion advocates are fond of reminding us, if you disapprove of abortion, the government provides an excellent remedy: Don’t have an abortion. And it actually goes far beyond that: To the considerable displeasure of abortion advocates, courts have consistently interpreted the First Amendment in a way that provides extremely robust protection for your right to go out and convince other people not to have abortions.
Here is a list of things that did not happen when the court legalized abortion nationwide with Roe v. Wade: Christian doctors were not required to perform abortions in order to keep their medical licenses. Christian churches, organizations and businesses were not subjected to official harassment for opposing abortion, or merely declining to endorse it. Christians were not subjected to legal penalties or professional sanctions for expressing opposition to abortion or declining to participate in, or approve of, abortions. Christians were not required to enthusiastically approve of abortion as a precondition for participation in ordinary society — and did not have to endure otherwise-serious people comparing them to segregationists and slaveowners if they expressed even the mildest disapproval. Saying “I’m pro-life” is not considered (by serious people, at least) an insult to all women, or even just women who have had abortions. All this, and the decision still led to enormous, acrimonious social upheaval — even motivating some people to take up arms and kill.
Yet this sort of forbearance has not been the prevailing trend with regard to gay marriage. If liberals persist in pushing things in this direction, I can see no way that things will not end badly. Combined with other deeply divergent views about the proper role and scope of government, I fear we’re headed for a national break-up. If that sounds incredible, remember that the crack-up of the old Eastern Bloc and the different polities that made up the Soviet Union was considered unimaginable by most folks right up until it happened. All it takes is one sufficiently-well-publicized incident to unleash a preference cascade.
Assuming that we really are closing in on this regrettable state of affairs, I’d argue that it’s almost entirely due to our burgeoning population: The United States is currently home to well over 300 million people, and it may be that we are now bumping up against a natural limit past which a robust consensual government may not be possible. (I prefer the term “consensual government” to “democracy,” which has traditionally been defined more narrowly — though both express similar concepts, and in popular parlance can be used interchangeably.)
Let me anticipate one objection right off the bat: The nation of India is also a consensual “democracy,” yet it maintains a population of well over a billion people. My rejoinder: India is indeed a consensual democracy — though it’s very far from anything James Madison would have imagined. For starters, India is famously awash in corruption. This story tries to highlight the country’s recent progress in addressing corruption — yet note that India still ranks 85 out of 175 countries. It’s just 15 places ahead of China, but 68 places behind the United States — a nation which itself is conspicuous for leaning a bit toward the corrupt end among other advanced societies. Even Brazil — the Western Hemisphere’s reigning cautionary example of the problems inherent in a huge, ramshackle, dysfunctional multiethnic democracy — solidly thumps India in terms of lower perceptions of corruption.
India thus bears little resemblance to the bumptious, virtuous self-governing American republic immortalized by de Tocqueville. Much of India remains a backward, third-world society.
More to the point: The clever white middle-class Americans who would probably throw out this sort of objection are not exactly pulling out all the stops to get themselves and their families citizenship in India’s shining, utopian democracy. Their clever middle-class peers in India would sell all their worldly possessions for citizenship in the United States, which if you believe outlets like Salon, is a nasty racist shithole filled to bursting with angry whites who regularly lynch any brown-skinned person who looks at them cross-eyed.
Bringing up the example of India is a flashy debating point, but a closer look at the facts show it’s not really serious; nobody considers these two countries to be directly comparable in any relevant way. (If you want me to go into further detail on this issue, I can … starting with the fact that modern India exists in its current form because the most quarrelsome swaths of its historic territory — Bangladesh and Pakistan — were excised right at the nation’s outset in 1947. This would be comparable to if the South and North of Britain’s thirteen American colonies had agreed right at the beginning in 1776 to form two separate nations.)
Despite the rote defenses of federalism on the Right, the fact is that the U.S. Declaration of Independence does not foresee a competent, accountable state of nigh-unlimited scope, ruling over a gaggle of people whose customs and values are nearly alien to one another. It is, in fact, one of history’s few political manifestos which looks forward to its own obsolescence. Instead of casting its eyes towards some ill-defined future utopia, it actually takes seriously the notion that a political state is a provisional thing — it is a collection of citizens who have temporarily united, to quote Justice Kennedy’s ruling on gay marriage, “to enjoy liberty as we learn its meaning.”
Furthermore, the Declaration does not presume that this progressive revelation of the meaning of liberty will unfold exactly the same for all peoples, in exactly the same way and at exactly the same time. The first five sentences of the Declaration take it as axiomatic that different “peoples” will sometimes find themselves so at odds on fundamental questions of government that one side may be impelled to “dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and Nature’s God entitle them.”
Nor does the Declaration acknowledge that the bonds of a shared heritage will ultimately be enough to corral wildly-divergent communities together under the same fragile consensus government. “Prudence, indeed, will dictate,” the document allows, “that Governments long established should not be changed for light and transient causes.” But it goes on to claim that when citizens perceive “a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government.”
Is it not plausible that a government which actively punishes Christian business owners for trying to uphold the tenets of their ancient Scriptures — and whose highest officials appear in thrall to a culture which views heretofore-uncontroversial orthodox Christian teachings as premodern savagery — might be seen by some Christian citizens as “evincing a design to reduce them under absolute Despotism?”
There comes a point, the Declaration argues, when calm deliberation and legislative back-and-forth is a waste of everyone’s time and can serve no further purpose:
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity.
Of course, all of these same points were raised in the run-up to the Civil War, which purportedly settled this question once and for all.
Except that it didn’t really settle the question, did it? It settled the question up to a point — the Civil War did finally succeed in settling the question, which was very much alive at the time that the Declaration was written, about how to square the stirring words that “all men are created equal” with the awkward institution of human slavery. The war finally determined, to quote Lincoln, “the declaration that ‘all men are created equal’ is the great fundamental principle upon which our free institutions rest.” It established once and for all that this was a core belief which could not be cast aside, at least in principle, by any political entity which traced the blessing of its endeavors to the Declaration of Independence.
Hey, don’t take my word for it — the very people who fought, bled, and died under the Confederate battle flag would have agreed. Here’s some of the words of the Confederate revanchist anthem “I’m A Good Ol’ Rebel,” which was popular with Southerners for several decades after the end of the Civil War (along with a clip from the great Walter Hill film “The Long Riders,” about the sullen, disaffected band of young ex-Confederate soldiers who made up the Jesse James gang):
I hates the Yankee nation
And everything they do,
I hates the Declaration
Of Independence too;
I hates the glorious Union —
‘Tis dripping with our blood —
I hates their striped banner,
I fought it all I could.
Try singing those lyrics at your next Fourth of July barbecue.
If we take the words of the Declaration seriously, as Lincoln did, the Union victory did not establish that the United States of America must be eternal in the form in which it has come down to us. The Declaration’s mandate is strictly limited to any successor regime which derives its “just powers from the consent of the governed.”
As Lincoln and many of his contemporaries observed, the Confederacy very conspicuously failed this test. A huge chunk of its native-born men had manifestly not given their consent to any of its institutions — and that population was substantial enough to call into very grave doubt the South’s legal hairsplitting about the specific political status of those men, who were, after all, fully American in every relevant way: They were born, lived their entire lives, and died upon American soil, without ever knowing the language or customs of another nation, culture, or creed. This, indeed, was the original purpose of the Constitution’s Fourteenth Amendment: The idea was to conclusively dispense with the South’s legalistic racial bullshit once and for all.
Neither the Fourteenth Amendment, nor any subsequent amendment, though, has determined that the Constitution established an undying institutional entity whose body can never be divided, only enlarged. The U.S. government punishes treason against itself, of course, as every other nation does. But the natural laws which the Declaration asserts to be the foundational principles of our nation recognize no such category; indeed, the Declaration makes the positive case that treason may at times be an affirmative “duty” for a free, proud people dedicated to self-government. The principal author of the Declaration, Thomas Jefferson, put “Rebellion Against Tyrants Is Obedience To God” on his personal seal.
So the seeds of a great national divorce have already been laid. The Civil War successfully halted their efflorescence, but presumably, the bloom cannot be permanently eradicated without ripping out the roots. Of course, there are some folks who think that would be a terrific idea — but good luck turning that into a winning campaign slogan anywhere in the U.S.
The question is: Are we at the point where a national divorce can no longer be avoided? Well, by some measures, we’re not even close: As far as I can tell, there have been no recent bloody beatings on the floor of the U.S. Senate, which subsequently met with widespread acclaim for the attacker — including entire municipalities changing their names in his honor.
On the other hand, I cannot recall any time in recent memory where huge parts of the country were so far apart on so many basic issues. On a lot of these issues, there is simply no conceivable compromise position. The differences boil down to worldviews that are wholly incompatible. I keep coming back to the Christian bakers and photographers who are punished for refusing to participate in gay weddings — it may seem like a small thing, but this country has a huge number of very devout, traditionalist Christians, and they’re not going to stop with their religious traditionalism just because the media constantly tells them it’s uncool. It is difficult for me to believe we’ll be able to avoid stumbling into a national crisis if such a huge group of people are forced to live under the rule of governing class eager to wage scorched-earth legal and cultural warfare against them.
The reason population size comes into play is that it reshapes the cost/benefit analysis of any potential independence movement. There are certain positive benefits that accrue to collective state action — benefits that are largely inaccessible to individuals, or small groups of individuals acting in concert. With a big, populous nation, you can build armies to defend your people, and if you’re big and wealthy enough, you can eventually professionalize your military, allowing them to maintain a constant state of readiness — it has been a recognized fact of warfare since at least ancient Rome that a well-trained professional military is vastly more effective on the battlefield than a loosely-organized band of volunteer warriors, regardless of the depth of martial zeal which motivates them.
Furthermore, as the size of the group engaged in a collective enterprise rises, the benefits are enhanced. A nation with a bigger population can collect more taxes, and husband even greater resources, which can be used to tackle bigger challenges — challenges that a smaller, poorer country can barely conceive of taking on. Eventually, you can do stuff as outrageous as sending men to the moon (or providing free universal health care, if that’s more your bag).
The impressive raft of benefits that flow from collective action thus provides a powerful inducement for people to put aside their cranky individualism, mute their objections, and join hands with people they despise in pursuit of the greater good. But this strategy eventually runs into problems.
Problem No. 1 is diminishing marginal returns. Past a certain point, the benefits of a huge population tend to get less impressive, while the costs continue to rise. This is because the challenges become less amenable to sheer “human wave” solutions, while at the same time a greater portion of society’s resources are siphoned off by the effort to consolidate past gains and distribute the proceeds of those gains more equitably. For example, the first jet airliners did not need to make accommodations for people in wheelchairs — so if you were paraplegic, you either tolerated considerable inconvenience when flying, or you were out of luck altogether. But as air travel became more common, airlines faced pressure to make things easier for handicapped passengers. It’s a noble goal, but one that still comes with a bigger price tag — which can’t be lowered simply by throwing more people at the problem, either in the form of hiring more engineers to design the airplane or adding more passengers to cover the cost of giving handicapped passengers a break.
After society snatches up most of the low-hanging fruit that can be reached through massive coordination alone, the diminishing returns drain the public’s enthusiasm for large collective enterprises. That, in turn, focuses more attention on the downsides of such efforts — such as the need for conformity, for instance.
When the benefits of shutting up, keeping your head down, and not asking questions are big enough, people don’t need that much encouragement; but when the benefits start to tail off, people’s individuality comes to the forefront, and they start to feel stifled. Think about it: If not getting a nose ring and wearing a neat haircut meant the difference between a job that makes $30,000 a year and a job that makes $100,000 a year (as it probably did, when adjusted for inflation, back in 1955), most people will be happy to be conformist squares. If the benefits are much, much smaller, or if wearing your hair weird and getting facial piercings appears to have little practical effect on your prospects in life either way — and might even enhance your life in some ways, such as making you more attractive to adventurous members of the opposite sex — more people will choose to let their freak flags fly.
This feeds directly into problem No. 2: Greater awareness — or what Marxists might call greater political consciousness.
When more people let their freak flags fly, the misfits will begin to notice that in some cases, they actually constitute a rather significant chunk of the population. Their numbers may be large enough that they may begin to notice those diminishing marginal returns and wonder why, exactly, they should have to continue a cordial political union with people they otherwise hate. What precisely are they getting out of this arrangement that they couldn’t get with, say, a somewhat-smaller-but-still-huge group of people who are much more like-minded? Many American states have economies larger than small-yet-still-comfortable first world countries. The U.S. put a man on the moon with a national population that is less than two-thirds the size of our population today, and one which was far more homogenous. Are Americans today wildly better off now that their country is far more diverse and they’ve got 100 million more mouths to feed? Or is there possibly a connection between the fact that real wages haven’t risen at all for most Americans since the Apollo era?
This is what I mean about a “natural limit” to consensual government: There may be a point where the benefits of union cannot paper over the sharp differences between different groups, because those groups are big enough that they can imagine going their own way and continuing to reap most of the benefits of being a big, powerful nation — with the considerable added benefit of not having to bow to the nutty sensibilities of a bunch of aloof, distant bureaucrats or howling, irrational barbarians.
A large, disaffected group may conclude they possess so much power on their own that it may radically change their political calculus. They may decide that, whatever short-term losses they might incur from severing ties with strange people they will never meet dwelling in distant lands they will never visit, those losses will be more than offset by the gains they could reap with greater autonomy and national unity.
It was precisely this line of thinking that led to both the American Revolution and the Civil War. And the Declaration of Independence seems to regard this as part of the natural course for all democratic societies.
The limits of a “democratic” form of government have been an open question since the time of Plato, who famously believed that all democracies would devolve into tyranny. Yes, I am aware that the United States is not, strictly speaking, a democracy — it’s a democratic republic. Nevertheless, the American republic is much closer to Plato’s conception of democracy than it is to his ideal Republic, which was a kind of proto-fascism.
Most of Plato’s objections to “democracy” would apply equally to anything we would regard as a free society — that is, what I call a consensual government; a government which explicitly locates its authority in the mass social consensus of the people, subject to periodic review in the form of free elections. Plato believed that ALL such societies would eventually succumb to the seductions of a glib tyrant.
A quote popularly attributed to the Scottish jurist Alexander Tytler (the actual source is disputed) puts Plato’s bleak argument very succinctly:
A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury. After that, the majority always votes for the candidate promising the most benefits with the result the democracy collapses because of the loose fiscal policy ensuing, always to be followed by a dictatorship, then a monarchy.
For a long time, the existence of stable democracies such as the United States and Great Britain was thought to be a powerful rebuttal to this pessimistic view. At the end of the Cold War, some folks even argued that Plato had been decisively refuted on this point.
Now, though, it’s beginning to seem that Plato’s pessimism wasn’t so much wrong as it was misplaced. Plato thought the fatal weakness of democracy would be in the greed of individual citizens. He apparently doubted that a robust civic culture could develop among a free people.
But perhaps the weakness lies not in individual greed, but what the Founders referred to as the problem of “faction.” Perhaps, contra Tytler, the hinge is not the point at which the people realize they can pick their own pockets — indeed, it appears that democracies are actually fiendishly clever at coming up with new ways to kick that can down the road. Rather, it comes when some critical mass of the public decides that if they’re to tolerate having their pockets picked, they’ll damn well be picked by pickpockets they can at least get along with.
“If you’re gonna ride my ass,” the bumper sticker slogan goes, “at least pull my hair and tell me you love me.” These days, some people seem to see their fellow countrymen less as partners in a boring-but-stable-and-worthwhile marriage and more like prison bitches to be used, abused, and discarded.
It’s not so much that consensual government may be impossible past a certain point — again, the obvious rejoinder is India, which has a much larger population than the U.S. and yet remains reasonably free and democratic. But again: India isn’t exactly what the Founders had in mind when they broke from Great Britain. It may simply be that a functional free society must necessarily become meaner and more desultory as population, and the attendant fractures of diversity, passes a certain point; people must give up more and more of what Robert Putnam calls “social capital” in order to maintain their freedoms.
If “freedom” is to work successfully in a huge nation with dramatically clashing customs and norms, perhaps “freedom” must be gradually transferred from an inner state of mind to an outward, state-mandated framework of explicit, rigorously defined black-letter legal “rights.” What appears as endemic corruption to outsiders is actually just a classic market response — “corruption” evolves to facilitate the exchanges that were once conducted efficiently with the universal currency of social capital that exists among people who share a homogenous culture.
None of this is unknown in human history. But it’s not a state of affairs which people have traditionally aspired to — it’s a system that handsomely rewards a privileged few while everybody else more or less struggles along. Is there a single mainstream political thinker on the right or the left who would uphold this state of affairs as a model? Isn’t most mainstream political philosophy an attempt to figure out a way to transcend this grubby type of society?
It’s quite possible that I am wrong to be this pessimistic; the American dream might still have a few arrows left in her quiver we haven’t seen yet. After all, chin-stroking intellectuals were talking about an “age of limits” back during the Carter administration. The twin eruptions of Reaganism and Silicon Valley then came along and boosted America far past what most people thought possible in the era of stagflation.
Charles Murray, whose book Coming Apart has influenced a lot of my thinking in this blog post, recently published an interesting book about how the American dream might be revived: He suggests that instead of secession, Americans with an ornery streak might come together to perfect a form of legal-system judo to use against the oppressive arm of the state, using Leviathan’s own clumsy flailing against itself. Professor Reynolds at Instapundit has suggested similar “use-their-own-strength-against-them” ideas, though he apparently hasn’t worked his ideas out with the same degree of thoroughness that Murray has.
It might be that approaches like these can carve out enough space to allow diverse, idiosyncratic parts of our country to reclaim a modicum of freedom and dynamism. This is a deeply cynical approach to politics, but cynicism in politics does seem to get results.
Or perhaps I’m just being premature. My late grandfather once explained to me why he never really got worked up too much about politics. In his 70s at the time, he said one thing he’d observed over the years was that no matter how far the political pendulum swings to one side, “it never fails to swing back.” Perhaps America is due for a major conservative correction after the Obama era.
We shall see. So far, very little about the 21st century has turned out the way I imagined it would. I have had a poor track record of predicting the future so far. In this case, I’d be delighted to be proven wrong.