I've declined to do much blogging on political topics of late, content to leave the task to others more capable and knowledgeable than myself in that area. However, shock, horror, disbelief, and outrage are magnificent motivators to write and have provided fuel for my flame.
Were my angst and discontent over the recent Supreme Court Obamacare ruling a mere matter of technical disagreement on the legal specifics of the case, I would respectfully -- but vehemently -- object to the opinion of Chief Justice John Roberts, siding with the four dissenters. However, the written opinion itself raised questions about whether Roberts' conclusion was purely wrought in the fires of Constitutional jurisprudence, and subsequent information is confirming suspicions that it was not. Instead it seems as if the opinion was the product of the Chief Justice weighing a variety of considerations and interests, many of which have nothing to do with his duties as a faithful interpreter of the text and of the relevant precedents. It's not only that Roberts has erred in his decision, going beyond the principle of generous interpretation and effectively legislating from the bench -- which would be bad enough -- but that his motivations for doing so seem to be concerns which should be, in principle, bracketed out to begin with and never taken into consideration.
Considerations such as the role of Chief Justice as a "steward" of the court, or of "the court's reputation", or making compromises toward some imaginary "long view", or declining to "obstruct" Congress and the President on an important piece of legislation. If faithful, accurate interpretation and application of the Constitution causes the "reputation of the court" to suffer, then please suffer dutifully and with honor. If reading the caterwauling of the elite media class causes you to believe the "reputation of the court" is actually at stake when it isn't, then please put down the New York Times Op-ed page immediately. If it makes you uncomfortable to strike down the cornerstone of a President's political and legislative agenda, then please decline to take the oath of your office which requires you to -- at times -- do precisely that.
Showing posts with label constitution. Show all posts
Showing posts with label constitution. Show all posts
Monday, July 2, 2012
Tuesday, November 15, 2011
The Tragic-Utopian Spectrum and Authority
Theology and Politics are distinct spheres of reality which, ipso facto, shouldn't necessarily have many common points of intersection. In the Christian tradition, governments and politics are a source of idolatry. They are a pale, worldly substitute for God's authority and rule. Still, they have to be understood and responded to in appropriate ways, and they themselves must act within certain parameters to be considered legitimate and enjoy being God's ordained, temporary administers of justice and order in the social realm. With this in mind, is there any reason we should suspect that the left-right divide in politics should share any commonality with the left-right divide in theology? On the surface, there doesn't seem to be any reason to suspect this, but let's pursue the question further.
While many people feel that the traditional left-right political spectrum is an insufficient, oversimplified means of representing reality, I think there's more to it than that. Many claim that there is no reason why someone who feels one way about the death penalty should also think something specific about taxation, and these people therefore feel that the political spectrum amounts to an arbitrary clumping together of views that are a product of a trenchant two-party system.
Thomas Sowell has done an excellent job of illustrating what it is that truly informs the left-right divide, and that it isn't actually arbitrary at all. It is the product two fundamentally distinct views of humanity, which he most fully outlines in his book A Conflict of Visions. The Tragic Vision of humanity sees men as fundamentally weak, as sinful, as incapable of conquering their own nature, and therefore believes that government's primary job should be applying restraints to the governing authorities and systems that arise among men (as well as accepting certain desirable trade-offs). The Tragic Vision sees men as easily corruptible, and power as a corrupting process, and so supports a system which fundamentally restrains and divides power. While the Utopian Vision of mankind sees man as fundamentally good, and capable of overcoming all (or most) of the things that hold him back through education, striving, and cooperation, which will lead to progress. Progress in turn leads to greater progress, as mankind learns from the mistakes of the past, and builds on the knowledge of the present, ultimately resulting in greater mastery over our condition.
Clearly the Tragic Vision is the vision of the right and conservatism, while the Utopian vision is the vision of the left and (modern) liberalism, generally speaking. With these visions outlined, you can see how these contrasting views of Man inform just about every position that we would traditionally call conservative or liberal, with some exceptions. These distinctions aren't really arbitrary, and the positions associated with the sides of the spectrum don't just 'happen' to clump together, but the differences are born out of legitimately divergent views of human nature.
It's fairly easy to see how this understanding of human nature also affects -- or is born out of -- Christian's theological views. Those with the Tragic vision will to tend to be more conservative theologically, and those with the Utopian vision will also tend to be more liberal theologically, in obvious ways. Conservatives will focus more on sin and God's judgment; liberals will focus more on his love and mercy. Conservatives will more quickly emphasize the inability of works to save; liberals will more readily emphasize the fact that works are fruits of the spirit. The implications are endless, and while they don't necessarily result in hard divisions (in the previous sentence, for example, both views are completely compatible with each other), but are rather a matter of focus and emphasis which can determine the character of our theological beliefs and practices.
My purpose for this post isn't to explore this issue fully and completely, but only to apply this understanding to one issue and it's the issue of authority and scripture (for the political sphere of the U.S., I hold that The Constitution is analogous to our secular scripture).
The observation I'd like to make is just how similar a manner liberals treat authority and foundational documents in both realms. In the U.S., political liberals are more apt to treat The Constitution as a 'living document', the meaning of which changes with time as humanity and society progresses in wisdom. As humanity advances, we can view The Constitution from the standpoint of the future, as more enlightened beings, and try to understand the Constitution, not merely by its words and what the words meant to those who wrote them, but as a document whose meaning depends on when and how it is being read. Of course, The Constitution has a built-in means of updating and altering itself: the amendment process. But liberals think that the meaning of much of what is there can change without needing to amend it, simply by reading it from a new, "enlightened" vantage.
While conservatives, being very wary of the impulses of the moment and how prone to error humans are, are much more likely to give the benefit of the doubt to time-tested wisdom and the principles of governmental restraint pronounced in the Constitution. Conservatives would also be less likely to amend the Constitution, or to interpret in any way other than what the founders intended. Which is not to say that conservatives are oblivious to the reality of legitimate progress and change in society, but that they believe when such change occurs it is either irrelevant to how the Constitution is read, or if the change cuts to some Constitutional principle that changing the meaning of the Constitution requires actually amending it, rather than simply 'understanding it anew'.
The founders envisioned a government of "laws and not men", which is why they constructed a system of checks and balances and divisions of power. Conservatives are much more likely to affirm this vision completely, while liberals would be more prone to want to override certain systematic constraints, allowing the understanding of the moment to rule over the wisdom of the past, including over certain restraints of the Constitution.
Thus instead of seeing the Establishment clause of the First Amendment as a restraint on the government from establishing a state religion, liberals re-interpret the amendment to mean that the government has absolute duty and license to also restrict religious free speech, in certain public spaces. Thus instead of seeing the Commerce Clause as limiting the federal government's role in commerce to one specific exception of interstate commerce, liberals creatively 're-think' what the Commerce Clause means and use it for the exact opposite purpose: to extend the control and jurisdiction of the federal government into all commerce. Meanwhile, conservatives read the Constitution as it was meant to be read, are very wary about changing it, and believe that if a change is needed it should go through the intentionally difficult and rigorous amendment process.
The analogy to Christianity should be clear. Theological liberals are more apt to view the Bible in the exact same way that political liberals view the Constitution, while theological conservatives are more likely to be more "originalist" in their interpretation. Theological liberals view the Bible more as a "living document", while conservatives tend to view it more as unchanging and settled. It's a slightly different situation because both liberals and conservative Christians tend to have a higher, more reverenced view of both authority and tradition than secular liberals do. Thus the divide isn't as large as it is in the political realm, as both sides of the spectrum agree about a larger array of issues, but the analogy is still illustrative of the fundamental underpinnings of ideology that color both spheres of life.
Because man is weak, broken, and prone to error and misdeeds, his power over others must be limited and restrained as much as possible, and because of this there should be a great reverence for the principles which do the restraining and transcend any living man, woman, or even majority of people in a democracy. Therefore the Constitution should be held in high esteem and we should alter it only in the most unusual circumstances. Therefore the Bible should be held in high esteem and we should alter our understanding of its plain, established meaning only in the most unusual circumstances, with proper reflection, prayer and consideration.
Alternatively:
Because man is evolving, learning, and progressing throughout history, our understanding of the Constitution and what it means should also be evolving and progressing. Therefore the Constitution should act as a vague, general signpost, but if our advancement as a society or species seems to be hindered at all by it, we must find ways to reduce its impact or otherwise circumvent it. Therefore, while the Bible should be esteemed, we must not limit ourselves to traditional understandings, but allow ourselves to buttress our understandings of the Bible with the gains of wisdom and knowledge of the world, and always re-think the Bible in the light of the moment, which is the peak of our understanding.
Some of those on the left might complain about the language I've used to frame the discussion, but I can only say it's my honest conclusion. Also, just because this is what I think that conservative and liberal principles dictate doesn't necessarily mean that it applies to how conservative and liberal people actually behave, respectively. So if you can think of a plethora of examples in which certain conservatives or liberals do the opposite of these dictates, I would probably respond by simply noting that those are instances of conservatives doing something liberal and vice versa.
In addition to my language betraying my conviction in favor of the validity of The Tragic Vision, I must also call attention to the fact that Steven Pinker -- a cognitive scientist, linguist, and liberal -- points out in his book on human nature The Blank Slate, the most recent findings of the sciences of human nature -- genetics, neuroscience and such -- are largely vindicating The Tragic Vision of human nature, over and against The Utopian Vision. He accepts Sowell's formulation of the divide, and addresses the issue of political beliefs in the light of these new findings. Pinker isn't willing to concede that this is a complete triumph for the right, but he thinks that the discussion has to advance and evolve with new ideas and terms framing the left-right divide, and that the left will mostly have to abandon The Utopian Vision. But it's clear that, at this point in time, they haven't yet done so.
As I've written elsewhere, the modern, secular world seems to have a problem with authority in general which results in the political spectrum being much broader than the theological spectrum. When man is his own ruler and own end, this will result in a greater diversity of views and much greater folly. When man submits himself to an authority greater than himself, diversity is permitted but limited by the constraints of authority, tradition, and scripture. American politics should take notes from theology and narrow its own diversity by willfully submitting to our secular authority, The Constitution.
While many people feel that the traditional left-right political spectrum is an insufficient, oversimplified means of representing reality, I think there's more to it than that. Many claim that there is no reason why someone who feels one way about the death penalty should also think something specific about taxation, and these people therefore feel that the political spectrum amounts to an arbitrary clumping together of views that are a product of a trenchant two-party system.
Thomas Sowell has done an excellent job of illustrating what it is that truly informs the left-right divide, and that it isn't actually arbitrary at all. It is the product two fundamentally distinct views of humanity, which he most fully outlines in his book A Conflict of Visions. The Tragic Vision of humanity sees men as fundamentally weak, as sinful, as incapable of conquering their own nature, and therefore believes that government's primary job should be applying restraints to the governing authorities and systems that arise among men (as well as accepting certain desirable trade-offs). The Tragic Vision sees men as easily corruptible, and power as a corrupting process, and so supports a system which fundamentally restrains and divides power. While the Utopian Vision of mankind sees man as fundamentally good, and capable of overcoming all (or most) of the things that hold him back through education, striving, and cooperation, which will lead to progress. Progress in turn leads to greater progress, as mankind learns from the mistakes of the past, and builds on the knowledge of the present, ultimately resulting in greater mastery over our condition.
Clearly the Tragic Vision is the vision of the right and conservatism, while the Utopian vision is the vision of the left and (modern) liberalism, generally speaking. With these visions outlined, you can see how these contrasting views of Man inform just about every position that we would traditionally call conservative or liberal, with some exceptions. These distinctions aren't really arbitrary, and the positions associated with the sides of the spectrum don't just 'happen' to clump together, but the differences are born out of legitimately divergent views of human nature.
It's fairly easy to see how this understanding of human nature also affects -- or is born out of -- Christian's theological views. Those with the Tragic vision will to tend to be more conservative theologically, and those with the Utopian vision will also tend to be more liberal theologically, in obvious ways. Conservatives will focus more on sin and God's judgment; liberals will focus more on his love and mercy. Conservatives will more quickly emphasize the inability of works to save; liberals will more readily emphasize the fact that works are fruits of the spirit. The implications are endless, and while they don't necessarily result in hard divisions (in the previous sentence, for example, both views are completely compatible with each other), but are rather a matter of focus and emphasis which can determine the character of our theological beliefs and practices.
My purpose for this post isn't to explore this issue fully and completely, but only to apply this understanding to one issue and it's the issue of authority and scripture (for the political sphere of the U.S., I hold that The Constitution is analogous to our secular scripture).
The observation I'd like to make is just how similar a manner liberals treat authority and foundational documents in both realms. In the U.S., political liberals are more apt to treat The Constitution as a 'living document', the meaning of which changes with time as humanity and society progresses in wisdom. As humanity advances, we can view The Constitution from the standpoint of the future, as more enlightened beings, and try to understand the Constitution, not merely by its words and what the words meant to those who wrote them, but as a document whose meaning depends on when and how it is being read. Of course, The Constitution has a built-in means of updating and altering itself: the amendment process. But liberals think that the meaning of much of what is there can change without needing to amend it, simply by reading it from a new, "enlightened" vantage.
While conservatives, being very wary of the impulses of the moment and how prone to error humans are, are much more likely to give the benefit of the doubt to time-tested wisdom and the principles of governmental restraint pronounced in the Constitution. Conservatives would also be less likely to amend the Constitution, or to interpret in any way other than what the founders intended. Which is not to say that conservatives are oblivious to the reality of legitimate progress and change in society, but that they believe when such change occurs it is either irrelevant to how the Constitution is read, or if the change cuts to some Constitutional principle that changing the meaning of the Constitution requires actually amending it, rather than simply 'understanding it anew'.
The founders envisioned a government of "laws and not men", which is why they constructed a system of checks and balances and divisions of power. Conservatives are much more likely to affirm this vision completely, while liberals would be more prone to want to override certain systematic constraints, allowing the understanding of the moment to rule over the wisdom of the past, including over certain restraints of the Constitution.
Thus instead of seeing the Establishment clause of the First Amendment as a restraint on the government from establishing a state religion, liberals re-interpret the amendment to mean that the government has absolute duty and license to also restrict religious free speech, in certain public spaces. Thus instead of seeing the Commerce Clause as limiting the federal government's role in commerce to one specific exception of interstate commerce, liberals creatively 're-think' what the Commerce Clause means and use it for the exact opposite purpose: to extend the control and jurisdiction of the federal government into all commerce. Meanwhile, conservatives read the Constitution as it was meant to be read, are very wary about changing it, and believe that if a change is needed it should go through the intentionally difficult and rigorous amendment process.
The analogy to Christianity should be clear. Theological liberals are more apt to view the Bible in the exact same way that political liberals view the Constitution, while theological conservatives are more likely to be more "originalist" in their interpretation. Theological liberals view the Bible more as a "living document", while conservatives tend to view it more as unchanging and settled. It's a slightly different situation because both liberals and conservative Christians tend to have a higher, more reverenced view of both authority and tradition than secular liberals do. Thus the divide isn't as large as it is in the political realm, as both sides of the spectrum agree about a larger array of issues, but the analogy is still illustrative of the fundamental underpinnings of ideology that color both spheres of life.
Because man is weak, broken, and prone to error and misdeeds, his power over others must be limited and restrained as much as possible, and because of this there should be a great reverence for the principles which do the restraining and transcend any living man, woman, or even majority of people in a democracy. Therefore the Constitution should be held in high esteem and we should alter it only in the most unusual circumstances. Therefore the Bible should be held in high esteem and we should alter our understanding of its plain, established meaning only in the most unusual circumstances, with proper reflection, prayer and consideration.
Alternatively:
Because man is evolving, learning, and progressing throughout history, our understanding of the Constitution and what it means should also be evolving and progressing. Therefore the Constitution should act as a vague, general signpost, but if our advancement as a society or species seems to be hindered at all by it, we must find ways to reduce its impact or otherwise circumvent it. Therefore, while the Bible should be esteemed, we must not limit ourselves to traditional understandings, but allow ourselves to buttress our understandings of the Bible with the gains of wisdom and knowledge of the world, and always re-think the Bible in the light of the moment, which is the peak of our understanding.
Some of those on the left might complain about the language I've used to frame the discussion, but I can only say it's my honest conclusion. Also, just because this is what I think that conservative and liberal principles dictate doesn't necessarily mean that it applies to how conservative and liberal people actually behave, respectively. So if you can think of a plethora of examples in which certain conservatives or liberals do the opposite of these dictates, I would probably respond by simply noting that those are instances of conservatives doing something liberal and vice versa.
In addition to my language betraying my conviction in favor of the validity of The Tragic Vision, I must also call attention to the fact that Steven Pinker -- a cognitive scientist, linguist, and liberal -- points out in his book on human nature The Blank Slate, the most recent findings of the sciences of human nature -- genetics, neuroscience and such -- are largely vindicating The Tragic Vision of human nature, over and against The Utopian Vision. He accepts Sowell's formulation of the divide, and addresses the issue of political beliefs in the light of these new findings. Pinker isn't willing to concede that this is a complete triumph for the right, but he thinks that the discussion has to advance and evolve with new ideas and terms framing the left-right divide, and that the left will mostly have to abandon The Utopian Vision. But it's clear that, at this point in time, they haven't yet done so.
As I've written elsewhere, the modern, secular world seems to have a problem with authority in general which results in the political spectrum being much broader than the theological spectrum. When man is his own ruler and own end, this will result in a greater diversity of views and much greater folly. When man submits himself to an authority greater than himself, diversity is permitted but limited by the constraints of authority, tradition, and scripture. American politics should take notes from theology and narrow its own diversity by willfully submitting to our secular authority, The Constitution.
Wednesday, May 11, 2011
You Don't Reserve the Right
I'm sure that you've seen those signs that often hang in restaurants which read "We Reserve the Right to Refuse Service to Anyone". When you think about what the sign is saying it seems reasonable and unobjectionable. Private businesses should have the right to refuse service to anyone. Business transactions are voluntary participation in commerce between two willing parties, so if one of the parties is unwilling to enter into the transaction, for whatever reason, there is no business to be done. But do private businesses truly reserve that right?
Title II of The Civil Rights Act of 1964 made discrimination and segregation illegal in places of "public accommodations", such as motels, movie theaters and restaurants. It would seem, then, that the signs that hang in those restaurants are mistaken. Restaurant owners and operators do not reserve the right to refuse service to anyone, or at least not for any reason. But shouldn't they have that right?
The knee-jerk, emotional, liberal reaction to such a question is that the legitimacy of any piece of civil rights legislation can not be called into question without racist intentions. Desegregation and being anti-discrimination are good things, therefore there is no argument that can be made against them. Nevermind that the Civil Rights Act of 1964 has eleven different title sections, and the only Title that anyone ever questions is Title II. Meaning that 90% of the Act everyone agrees is an appropriate, good law. The only question is whether there is Constitutional warrant for the federal government to dictate to private businesses -- absurdly denominated 'public accommodations' in the Act -- who they must enter into business transactions with. The answer is that there clearly is no such Constitutional provision and, just as clearly, such a provision is expressly forbidden by the Constitution. Title II doesn't represent an expansion or recognition of anyone's duly owed Constitutional rights, but a restriction thereof.
Private business owners have the right to determine who they wish to do business with; patrons of businesses do not have the right to force businesses to do business with them; and the federal government does not have Constitutional authority to pass laws that would restrict the rights of businesses in such a way, as that falls outside the purview of the federal government, and would fall under the jurisdiction of the states per the 10th amendment.
So how did the law pass if it's unconstitutional? This happens often, and as is often the case in the past 50 years, it's due to the Commerce Clause and the absurdly broad interpretation of that clause in the courts. The 'logic' (if you can call it that) goes: Congress has the right to regulate interstate commerce, those businesses are engaged in interstate commerce, therefore Congress can impose moral standards on private business owners. This same absurd reading of the Commerce Clause has resulted in the conclusion that a man growing a crop on his private farm -- which he intends to use solely for his own consumption -- falls under the regulations of the federal government because his growing-and-not-selling the crop affects supply and demand, which in turn affects interstate commerce and therefore falls under the authority of Congress to regulate.
It's difficult to make a passionate argument whose practical application is pretty limited. There are not many businesses in the world today that really have a problem with the Civil Rights Act, and actually have strong economic incentives not to refuse service to people on the basis of race anyway. Still, this is a creeping tyranny. I don't believe that every slope is necessarily a slippery one and I'm not an alarmist. But the Constitution is the foundation of our Republic and this is just one of many ways its being trampled on by every branch of government.
Restaurant owners should reserve the right to refuse service to anyone. They should reserve the right to be racist. And we should reserve the right to boycott them and take our business elsewhere.
Title II of The Civil Rights Act of 1964 made discrimination and segregation illegal in places of "public accommodations", such as motels, movie theaters and restaurants. It would seem, then, that the signs that hang in those restaurants are mistaken. Restaurant owners and operators do not reserve the right to refuse service to anyone, or at least not for any reason. But shouldn't they have that right?
The knee-jerk, emotional, liberal reaction to such a question is that the legitimacy of any piece of civil rights legislation can not be called into question without racist intentions. Desegregation and being anti-discrimination are good things, therefore there is no argument that can be made against them. Nevermind that the Civil Rights Act of 1964 has eleven different title sections, and the only Title that anyone ever questions is Title II. Meaning that 90% of the Act everyone agrees is an appropriate, good law. The only question is whether there is Constitutional warrant for the federal government to dictate to private businesses -- absurdly denominated 'public accommodations' in the Act -- who they must enter into business transactions with. The answer is that there clearly is no such Constitutional provision and, just as clearly, such a provision is expressly forbidden by the Constitution. Title II doesn't represent an expansion or recognition of anyone's duly owed Constitutional rights, but a restriction thereof.
Private business owners have the right to determine who they wish to do business with; patrons of businesses do not have the right to force businesses to do business with them; and the federal government does not have Constitutional authority to pass laws that would restrict the rights of businesses in such a way, as that falls outside the purview of the federal government, and would fall under the jurisdiction of the states per the 10th amendment.
So how did the law pass if it's unconstitutional? This happens often, and as is often the case in the past 50 years, it's due to the Commerce Clause and the absurdly broad interpretation of that clause in the courts. The 'logic' (if you can call it that) goes: Congress has the right to regulate interstate commerce, those businesses are engaged in interstate commerce, therefore Congress can impose moral standards on private business owners. This same absurd reading of the Commerce Clause has resulted in the conclusion that a man growing a crop on his private farm -- which he intends to use solely for his own consumption -- falls under the regulations of the federal government because his growing-and-not-selling the crop affects supply and demand, which in turn affects interstate commerce and therefore falls under the authority of Congress to regulate.
It's difficult to make a passionate argument whose practical application is pretty limited. There are not many businesses in the world today that really have a problem with the Civil Rights Act, and actually have strong economic incentives not to refuse service to people on the basis of race anyway. Still, this is a creeping tyranny. I don't believe that every slope is necessarily a slippery one and I'm not an alarmist. But the Constitution is the foundation of our Republic and this is just one of many ways its being trampled on by every branch of government.
Restaurant owners should reserve the right to refuse service to anyone. They should reserve the right to be racist. And we should reserve the right to boycott them and take our business elsewhere.
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