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What of a society as “sexless as the bees”?

24 Aug

From Dr. Susan Hanssen

Alexis de Tocqueville called “the strength of American women” the great secret of the strength of the American republic. Likewise, strong women were the backbone of the Adams family and its contribution to the political integrity of the American republic.

The letters of John and Abigail Adams were first published by their grandson, Charles Francis Adams (President Abraham Lincoln’s ambassador to Britain). The diaries and letters of John Quincy Adams’s wife, Louisa, have just been published this year, a project explored by their grandson, Henry Adams. Henry Adams—who called Tocqueville’s Democracy in America the “bible of my own private religion”—worried that American men and women were losing their appreciation for the complementary strengths and gifts of men and women. He thought the best remedy was to hold up for Americans the image of his grandmother.

Part of the charm of John and Abigail Adams’s letters (which are frequently addressed with terms such as “Dear Miss Adorable” and “My Dearest Friend”) is the way that the two weave a life-long conversation about universal human virtue into their ongoing inquiry into their complementary contributions to mothering and fathering their “little flock” of children. Louisa Adams had a hard act to follow in such a renowned mother-in-law, but her journals reveal a woman of profound reflection—on the meaning of piety (filial, patriotic, and religious) and her role as daughter, wife, and mother.

The Only Perfectly Balanced Mind in the Adams Family

Louisa Adams is the only American First Lady to have been born in a foreign country. Her American parents were living in London when she was born, and during the Revolution she was educated in a French convent school. She married John Quincy Adams during his diplomatic work, and the two immediately set off for Prussia, where he was stationed. She had already endured a number of difficult miscarriages and given birth to her three sons—little George Washington, John II, and Charles Francis—before she made her first visit to her “native” land.

She was soon called on to leave her two oldest sons behind and accompany her husband to Russia with her youngest child. In Tsarist Russia, she endured a very personal “winter”: painfully separated from her older children, she lost her only infant daughter, received news of her own mother’s death, and had to travel alone from St. Petersburg to Paris in the midst of the Napoleonic wars.

Late in life, she bitterly reproached herself for having left her oldest sons behind while she accompanied her husband on his diplomatic mission to Russia. Both of those sons were deeply troubled youths, impregnating women before wedlock, and dying young from drink or suicide.

Only the son whom she had kept close to her carried on the family tradition of public service, political integrity, and a lifelong happy marriage with many children. In fact, his sons marveled at Charles Francis Adams as a man “singular for mental poise.” It seemed to them that it was the influence of his mother who had balanced the analytical tendencies of his father, which often led members of the Adams family to deep depression, bitterness, and drink. With a good dose of both mothering and fathering, he struck his sons as “the only perfectly balanced mind that ever existed in the name.”

Sexless as the Bees

When her grandson Henry Adams read Louisa’s diary, he was inspired to compare Russia to Woman, Woman to Russia—the two conservative forces at the beginning of the twentieth century. Russia acted as a conservative political force in Europe comparable to Woman as a conservative social force in America. Perhaps with the help of Russia the threat of an imperial Germany could be contained. Perhaps with the help of Woman the threat of a corroding materialism might be contained.

Each was powerful, but each powerfully directed its forces internally. Russia, he argued, had its axis of rotation around the Church and around agricultural production to feed its enormous population. It had not yet turned its forces toward industrialization and modernization. If Russia’s forces were ever to be ripped from its axis by, let’s say, an atheistic modernizing revolutionary regime, Adams wrote in 1905, it might destroy all of Europe.

But if Woman were to be torn from her axis of rotation around the cradle, it wouldn’t just destroy Europe—it could destroy human society. In his wide-ranging third-person autobiography, The Education of Henry Adams, Adams observed:

The woman’s force had counted as inertia of rotation, and her axis of rotation had been the cradle and the family. The idea that she was weak revolted all history; it was a palæontological falsehood that even an Eocene female monkey would have laughed at; but it was surely true that, if her force were to be diverted from its axis, it must find a new field, and the family must pay for it. So far as she succeeded, she must become sexless like the bees, and must leave the old energy of inertia to carry on the race.

In this context of a Tocquevillean fear of whether Russian absolutism or American freedom would triumph in the coming century and whether the American triumph would indeed be a victory for liberty or for the incessant pursuit of petty and paltry pleasures that “enervate the soul and noiselessly unbend its springs of action,” Adams held up, at the beginning of The Education, the image of his grandmother.

Education by Grandmothers

Henry Adams recalled his grandmother as the very portrait of religious peace. She was “a peaceful vision of silver gray” presiding over her old president, her china tea set, and her box walks. She was refined, gentle, fragile, delicate, and remote. As a boy, Adams “knew nothing of her interior life” but he sensed that she was “exotic”—that she did not belong wholly to the political world of Boston, with its confidence that a political utopia could be achieved on earth.

After “being beaten about a stormy world” and enduring a life of “severe stress and little pure satisfaction,” it was clear that she placed her hopes in eternity. The political world believed that absolute democracy, state education, and total freedom of speech would usher in the end times of history. The political creed was that “Human nature works for the good and three instruments are all she asks—Suffrage, Common Schools, and the Press.” All doubts of this creed were political heresy.

From his grandmother, Henry Adams gleaned his sense that there were values beyond the negotiable values of politics. Without her, his education would have been all Mars and no Venus—a purely political education with no religion—all war and no contemplation of beauty, all work and no genuine leisure. In the “Boston” chapter of the Education, Adams wrote:

The children reached manhood without knowing religion, and with the certainty that dogma, metaphysics, and abstract philosophy were not worth knowing. So one-sided an education could have been possible in no other country or time, but it became, almost of necessity, the more literary and political. As the children grew up, they exaggerated the literary and the political interests.

Without religion, the poetic imagination became utopian, and the political imagination became utilitarian. Americans worshipped “the Dynamo”—of the physical and mental energy of man—and were utterly lacking the cult of “the Virgin”—the contemplation of the laws of Nature and Nature’s God, and openness to the grace needed to fulfill them.

Louisa Adams always felt herself a fish out of water in a culture that gave more attention to the virtues of equality than to the virtues of piety and pity. She saw her role as wife and mother as that of an educator in the refined art of deference and condescension—the discernment and acknowledgment of realities of inequality, weakness, strength, power and infirmity, and a careful attunement to the unequal duties such differences gave rise to.

She considered a culture that saw nothing but equal duties, equal rights, and relations of convenience and mutual interest as a tyranny against her own nature. “My temper is so harassed and I am I fear so imbued with strange and singular opinions, and surrounded by persons with whom it is decidedly impossible for me to agree,” she exclaimed. “I feel that I have strange exaggerated ideas on most subjects which must be utterly incomprehensible but are utterly impossible for me to eradicate.”

One of her most ineradicable ideas was the sacredness of the bond between parents and children, the most palpable bond of piety and pity. She wrote:

It has been the fashion to say that as Children were not born to please themselves, no real ties bind them to their parents; and that blood relationship, should exact neither affection or gratitude—To my mind there is no truth whatever in such an assertion . . . From the moment of the birth, we incur a vast debt of gratitude which a life cannot repay

. . . There must be a great dereliction in that mind which could for a moment shrink from the acknowledgement of so vast a debt: founded in the weakest of all vanities, self idolatry!

Louisa Adams herself attributed the deepening of her sense of piety and pity to her experience of motherhood. She wrote that her religious opinions and sentiments had “‘grown with my growth, and strengthened with my strength’ though until I became a Mother; perhaps not properly weighed and considered; one more of precept, habit, and example than of meditated reflection.”

Adams worried that as Americans pursued a culture that was “sexless as the bees,” the complementarity that had produced the remarkable personal poise of his father—the balanced judgment, the eye for both contractual duties, and the more delicate bonds of affection—would be lost. To his mind, the proper education of the young American required both father and mother, grandfathers and grandmothers.

Susan Hanssen is an associate professor of history at the University of Dallas.

Copyright © 2015 The Witherspoon Institute, all rights reserved.

Does Christianity, particularly reformed theology, imply a kind of conservative social hierarchy or radical liberal democracy?

24 Jul

A subject of much interest to me.  Reformed folks like to credit Reformational theology with playing a major role in the rationale behind and formation of liberal democracy.  But how far?  Does it promote the great leveling revolutions (Rousseau thought it might) or is it more conservative than that (Burke thought it was).

Good exchange here on the subject:

Reformed Christian ethics has taken a social egalitarian turn. Recently, a few Reformed bloggers have criticized Christians for failing to support the “radical and inclusive social ethics” of the New Testament. Matthew Tuininga, in a couple interesting and well-written posts on the Presbyterian role in racial segregation (see here andhere),[1] has condemned the southern Presbyterians for their “communitarian” social ethics and spiritualized,”neo-platonic” understanding of the Gospel. For them, “the spiritual kingdom of God does not take concrete social expression.” He writes,

I would submit that the real problem with the way in which southern Presbyterians used the doctrine of the spirituality of the church was not the insistence that the Church should only proclaim what God’s Word teaches. The real problem was the interpretation of the concept of ‘spirituality’ through the lens of an underrealized eschatology. By stressing that the Gospel does not affect social structures of nation, race, gender and class southern Presbyterians were bound to have a bias towards the status quo, and they were bound to turn to the Old Testament as an alternative source for guidance about the nature of a godly society. They did not have trouble admitting that the Old Testament did not say anything specifically about race because that was not the point. The point was that the Old Testament clearly justified an exclusive kind of politics, a politics that highlighted division over unity and judgment over grace.

Now, I do not dispute that the southern Presbyterians sinned in failing to see or act against the injustice of the South’s racial segregation, but I want to point out, however, that Southern Presbyterians were following a racialized (and unjust) version of the standard Christian (catholic) position on social hierarchy. The ideas that the Gospel does not significantly affect social structures of nation, gender, and class and that social hierarchy isnatural are standard positions in the Christian tradition. Major figures in the Roman Catholic, Anglican, and Calvinist traditions are in agreement on this.

It is important to recognize that Tuininga’s argument does not merely condemn the racialized hierarchical system of the South, but also, and primarily, the idea of social hierarchy in general. In this, he joins Michael Walzer and Nichols Wolterstorff, who both argue not only that Calvinism was politically radical from the beginning and always has been, but also that it, given its theological principles, ought to be radical. Wolterstorff insists that Calvinism was and is a “world-formative” religion. [2]

This post provides evidence from major figures in the Christian tradition that social hierarchy (though not its racialized form) is a standard position in the Christian tradition. To be clear, I am not defending racial segregation or anything of that sort. I am simply pointing out that Tuininga’s rejection of social hierarchy and a “spiritualized” Gospel is a rejection of a standard position in the Christian tradition.

Read the rest

We know of right-wing atrocities, but Marxist historian Eugene Genovese famously asked his fellow leftists, “What did you know and when?”

24 Jul

Make no mistake, conservatism has protected and rationalized all sorts of injustices in history. Indeed, the total amount of human suffering that has resulted from a stubborn political and cultural conservatism has perhaps only been eclipsed by the enormous human suffering lying in the wake of radical revolutions marching to the left-wing drums of liberty, equality, fraternity, and scientific progress. Years ago, before a Harvard crowd of left-wing professors, fellow Marxist Eugene Genovese called his colleagues out on it in this scathing speech. In “The Question,” he asks, since right-wing (‘imperial’) injustices are routinely and rightfully castigated, when it comes to the atrocities committed on the left in the name of liberation, equality, and progress, “What did you know and when did you know it?”

Simply a mic-dropping read: http://www.dissentmagazine.org/…/1353953160genovesethequest…

Highlights:

Many of my old comrades and almost all of
those ostensibly independent radicals and
high-minded liberals remain unruffled. After
all, did we not often protest against some
outrage or other in the Soviet Union or China,
signing an indignant petition or open letter? I
know I did. And does not that change
everything? I am afraid not, but I have nothing
to offer as critique other than that which may
be found in Galatians 6:7

Perhaps knowledge of the record of imperialist
atrocities leads our liberal colleagues to
refuse to single us out by asking The Question.
But I am afraid not. After all, they never stop
asking southern whites about their crimes, real
and imagined, against blacks. And let’s face it:
all the combined crimes of white southerners, at least if we restrict ourselves to the period since emancipation, would be worth no more
than a footnote in a casebook that starred us.

A few years ago, there was a successful
effort to get the Organization of American
Historians (OAH) to condemn apartheid in
South Africa. In the OAH and other professional
associations, Professor Wilborne Washburne
resolutely opposed this politicization,
and attempted to expose its hypocrisy by
offering an amendment to condemn the “necklacing”
of black South Africans, including
children, by the militants of the African
National Congress. (For those who have
forgotten, “necklacing” was execution by
burning the victims alive.) The ANC subsequently
repudiated necklacing as not only
wrong but barbarous. The OAH has yet to
endorse that repudiation.
I laughed. Those bloody South African
whites did kill a lot of blacks and ought to
answer for it, but throughout their whole
history they probably never equaled the numbers
we put up in one of our more spirited
month’s work. I laughed even harder when our
liberal colleagues poured out their wrath on the
ghastly racists in South Africa while they
remained silent about the immeasurably greater
slaughters occasioned by the periodic ethnic
cleansing that was—and is—going on in black
Africa and every other part of the globe. The
New York Times recently announced that the
death toll in the latest round of ethnic cleansing
in Burundi has reached 150,000, with the fate
of a half million or so refugees in doubt. The
historical associations have not been heard
from. Nor should anyone expect that they will
be.

No one should be surprised that none of our
leading historical associations have thought it
intellectually challenging to devote sessions at
their enormous annual meetings to frank
discussions of the socialist debacle. We of the
left are regularly invited to give papers on just
about any subject except this one. We are not
asked to assess the achievements as well as the
disasters, the heroism as well as the crimes,
and the lessons we ourselves have learned from
a tragic experience. No one need be surprised
that we have never been called upon to explain
ourselves. The pezzonovanti of our profession
have more important things on their minds.
When they can take time away from their
primary concern (the distribution of jobs,
prizes, and other forms of patronage), they are
immersed in grave condemnations of the
appalling violations of human rights by Christopher
Columbus. I know that it is in bad taste
to laugh, but I laugh anyway. I would rather be
judged boorish than seen throwing up

Logically, what should a Rawlsian do with the family (the greatest contributor to inequality in the world)?

15 Jul

Robet Nisbet vs John Rawls: Applying Rawlsian logic to the institution of the family. Remember, generally speaking, Rawls asserts that if we are all rational, we would seek policies that bring about equality of outcomes in everything up until the point where doing so is harmful to the underprivileged.

Nisbet: “I have always found treatment of the family to be an excellent indicator of the degree of zeal and authoritarianism, overt or latent, in a moral philosopher or political theorist. Basically, there have been two traditions in Western thought here. In one, reaching from Plato to Rousseau, the family is regarded as an insurmountable barrier to the achievement of absolute virtue or justice in a social order and therefore is to be obliterated. In the other, reaching from Aristotle to Burke and Tocqueville, the family is declared vital to the achievement and preservation of freedom and order alike in society.

Where does Professor Rawls stand? He is well aware of the social and psychological importance of the family, and refers to it in a number of places. Let us take his final reference (p. 511) as indicative. He writes: “The consistent application of the principle of fair opportunity requires us to view persons independently from the influences of their social position. But how far should this tendency be carried? It seems that when fair opportunity (as it has been defined) is satisfied, the family will lead to unequal chances between individuals. Is the family to be abolished then? Taken by itself and given a certain primacy, the idea of equal opportunity inclines in this direction. But within the context of the theory of justice as a whole there is much less urgency to take this course.”

I am afraid that most readers will take that last as quite unsatisfactory, even as a form of flinching. After all, “theory of justice as a whole” notwithstanding, there is abundant evidence that the family is among the most powerful generators and reinforcers of inequality in a social order. Rawls knows this very well. He has already proclaimed his willingness to see the factors of motivation, chance, and merit reduced to nullity in behalf of his cherished principle of equality. Can he, in all consistency, long neglect the family, given its demonstrable relation to inequality? Rousseau, in his Discourse on Political Economy, was bold and consistent where Rawls is diffident. If the young are to be brought up in the bosom of equality, “early accustomed to regard their own individuality only in its relation to the body of the State, to be aware, so to speak, of their own existence merely as part of that of the State,” then they must be saved from what Rousseau refers to as “the intelligence and prejudices of fathers.” Public authority must supplant domestic authority; the molecule of the family must be broken. But this, Rousseau suggests with characteristic ingenuity, should occasion no alarm, for the father “would only be changing his title and would have in common, under the name of citizen, the same authority over his children as he was exercising separately under the name of father.”

Will Professor Rawls in due time find his way to this piece of radical surgery? We can only surmise that he will.”

(Robert Nisbet, “The Pursuit of Equality,” The Public Interest [spring 1974]: 103-20, at 119-20)

What can be done if and when the Supreme Court gets the constitution wrong? Can judicial supremacy be directly challenged?

8 Jul

From Political Scientist Paul DeHart:

The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.

Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.

Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”

On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.

In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.

Read the rest

The SC did not legalize same-sex marriage, but mandated it. What’s this anti-federalism mean for other rights?

3 Jul

Eye on the News

ADAM FREEDMAN
Obergefell’s Threat to Religious Liberty
The Supreme Court decision takes self-government out of Americans’ hands.
July 1, 2015

PHOTO BY MARK WILSON/GETTY IMAGES

Despite what the newspaper headlines say, the U.S. Supreme Court’s ruling in Obergefell v.Hodges did not “legalize” same-sex marriage. Itmandated same-sex marriage, something very different. States were previously free to recognize gay marriage, but now they are compelled to do so. From now on, it is illegal—unconstitutional—for any state not to issue marriage licenses to same-sex couples.

Many tout Obergefell as a victory for civil rights, but it is anything but. By turning same-sex marriage into a constitutional “right,” the Supreme Court has denied the people of all 50 states the most important civil right of all—the right to govern themselves. A mere decade into the political deliberation on same-sex marriage, the Court has taken the issue away from the voters. According to the narrow 5–4 majority, there has already been more than enough “legislation, litigation, and debate,” as Justice Anthony Kennedy put it.

The damage to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity,” “autonomy,” or any of the other amorphous phrases contained in Justice Anthony Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In FederalistNo. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

By jettisoning federalism, the Court has put other civil liberties at risk. When the definition of marriage was a matter of state policy, voters and politicians could balance competing interest—particularly the rights of religious organizations that adhere to the traditional definition of marriage—based on local preferences. That kind of balancing is scarcely possible in federal courts, which are, as Chief Justice Roberts pointed out in his dissent, “blunt instruments when it comes to creating rights” because “they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.”

Consider the Court’s rationale in Obergefell. To arrive at its result, the Court held that the Constitution creates a “fundamental” right to same-sex marriage—and that that right is protected from state interference by the Due Process Clause of the Fourteenth Amendment. This holding is a variation of the doctrine known as “substantive due process,” a judicial technique used by federal courts to strike down state laws on policy grounds.

Fundamental rights are blunt instruments because they leave lawmakers very little room to accommodate practices inconsistent with such rights. In the new regime, courts will likely hold that states are prohibited from placing any burden on the right to same-sex marriage unless it furthers a compelling state interest. Indeed, Justice Kennedy’s opinion makes numerous references to Loving v. Virginia, the case that struck down bans on interracial marriage. Never mind that the opposite-sex nature of marriage spans all eras and all cultures, whereas the anti-miscegenation laws struck down in Loving are a relic of the relatively brief Jim Crow era; for the Court, both are expressions of rank prejudice. If traditional marriage has the same moral status as Jim Crow, then how can one compromise with its adherents?

It will not be long before the courts are asked to extend the logic of the1983 Supreme Court decision denying tax-exempt status to Bob Jones University because it did not admit applicants engaged in an interracial marriage or known to advocate interracial marriage or dating. The Court held that charitable status was not appropriate for institutions that violate a “fundamental national policy” such as racial equality. Marriage equality is now a fundamental right: how long before it is declared a “fundamental national policy” under the Bob Jones rationale?

During oral argument in Obergefell, Solicitor General Donald B. Verrilli, Jr., conceded that colleges and universities that oppose same-sex marriage could lose their tax-exempt status. “It is going to be an issue,” he acknowledged. Justice Kennedy’s opinion offered little solace on this front: a single paragraph of a 28-page opinion, in which he promises merely that religious individuals and organizations “may continue to advocate” traditional marriage. But the First Amendment guarantees the right to the free exercise of religion, not merely the freedom to espouse a religious view. If traditional churches are required to perform same-sex wedding ceremonies and religious schools are required to countenance same-sex marriage, surely they are not enjoying free religious exercise.

Already, a movement is afoot to silence religious opponents of same-sex marriage. Just two days after the Court’s ruling, journalist Mark Oppenheimer took to the pages of Time to argue for the total abolition of tax-exempt status for religious institutions. The American Civil Liberties Union, meanwhile, announced that it would no longer support theReligious Freedom Restoration Act (RFRA), a federal statute designed to protect Americans against laws that “substantially burden” the free exercise of religion, for fear that RFRA will be “used as a sword to discriminate against women, gay and transgender people.” Liberal outlets such as the Think Progress website, calling the law an expression of “anti-gay backlash,” denounced Indiana’s recent attempt to enact its own version of RFRA.

Judges and bureaucrats will soon order states to remove any support, direct or indirect, for institutions that oppose gay marriage. This trend, of course, is already underway—witness the Catholic Church’s withdrawal from the adoption business in states where adoption agencies must place children with same-sex couples. But it’s one thing to be forced out of Massachusetts; now the Church must reconsider its adoption services throughout the U.S.

Litigation against photographers and caterers who refuse to facilitate same-sex weddings has also been going on for some time. BeforeObergefell, states had a chance to rein in these suits, or at least try to balance the conscience rights of religious Christians against the claims of aggrieved couples. But now that gay marriage is a “fundamental right,” that right must be upheld not only by the government but by also by private companies that operate any “public accommodation.” Depending on the state, public accommodations can include restaurants, stores, hospitals, gyms, barbershops, hotels, libraries, bookstores, concert halls, mortuaries, and trailer parks. Expect private advocacy groups to pressure government prosecutors to root out perceived anti-gay-marriage attitudes throughout the private sector.

The new constitutional right to same-sex marriage will also profoundly affect school curriculum. In 2008, a federal appeals court upheld a Lexington, Massachusetts school district’s decision to teach children as young as kindergarten age about same-sex marriage—despite parental objections based on religious beliefs—because “[g]iven that Massachusetts has recognized gay marriage under its state constitution, it is entirely rational for its schools to educate their students regarding that recognition.” Books like Heather Has Two Mommies and King and King will likely become required reading under state guidelines and the Common Core. Any dissent will be viewed as bigotry.

Other questions linger. Can school vouchers be used at schools affiliated with churches that oppose same-sex marriage? Can a state university employ a professor who opposes same-sex marriage?

It will take some time for the United States to digest the magnitude ofObergefell. Five unelected judges have imposed a still-controversial definition of marriage on the entire country. As first steps, Congress should strengthen RFRA and make it apply explicitly to religious beliefs concerning marriage. States that have not yet enacted their own versions of RFRA should do so as soon as possible. The religious liberty of the American people is at stake.

There is a profound difference in the words “should” and “must” in judicial philosophy and republican government

30 Jun

The question “should there be this law” and “must there be this law” is not a trivial game of semantics. It is foundational to whether we will be a republican styled polity or not. The constitution does not permit or require every law you like. Nor does it prohibit every law you hate. If you think courts must stipulate every law you like and prohibit every law you hate, then you are not suited for republican government.  One may, for instance, believe strongly that states or even Congress should prohibit abortion, or redefine marriage, or provide universal healthcare, while acknowledging that the constitution doesn’t require them to do so.  And questions of “should” are to be generally left to the elective branches for deliberation, not judges, in a republic.

Case in point:

Yesterday, the Supreme Court upheld Oklahoma’s method of execution. In the reasoning, Justice Breyer and Justice Scalia revealed a profound difference in how each understands the role of courts in politics and the interpretive philosophy to be used in deciding cases.

First, Justice Breyer’s view of the constitutionality of the death penalty has evolved, after 20 years of reviewing death penalty cases, such that he now believes that it is “highly likely” that the death penalty violates the 8th amendment’s prohibition against cruel and unusual punishment (he points to accumulating evidence of wrongful convictions). Herein is Breyer’s judicial philosophy. The meaning of the 8th amendment (of the constitution itself) evolves (though the words haven’t changed, nor have the precedents on this matter). And if they do evolve, who gets to decide what the ‘new’ meaning will be? Judges, not the people voiced through elected representatives in states or Congress.

Second, we have Scalia’s judicial philosophy: “Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

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