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A Question That Won’t Go Away Print E-mail
By Robert Royal   
Monday, 02 April 2012

In 1996, a symposium appeared in the journal First Things entitled “The End of Democracy? The Judicial Usurpation of Politics.” It seriously examined whether the wholesale departure from constitutional order had, in fact, led to the kind of regime in America that was no longer legitimate.

Strong brew, of course. Several of the magazine’s board members resigned. Even though they largely agreed with the descriptive side of the case, they reacted strongly to the stark conclusion that many Americans may no longer feel a need for loyalty to such a regime.

That symposium makes for good reading in light of the somewhat superficial arguments that swirled around the Supreme Court hearings on Obamacare last week. Sixteen years ago, it took a group of distinguished thinkers to point out the deep problems within our polity. Today, just about anyone who pays attention can see the large dimensions of the threat (two-thirds of Americans want the healthcare reform modified or repealed).

But even if the law is struck down, it’s only temporary relief for a deep-seated set of issues that will, beyond all doubt, soon be back to haunt us.    

According to reports, the justices already voted on Friday whether to void the individual mandate in Obamacare and, perhaps, the whole healthcare law. Justice Kennedy, the expected swing vote, weighed in heavily during oral arguments about the “high burden of justification . . . when you are changing the relation of the individual to the government.” He even suggested that judicial restraint might lie in simply voiding the whole thing, not trying to decide which of the 2700 pages might stand.

Justice Scalia had some fun, asking whether the government might next require us to eat broccoli, and Chief Justice Roberts wondered whether everyone will have to buy cell phones to report medical emergencies. It’s quite easy to mock powers government is now claiming, almost unconsciously, since limited government is an almost dead notion. When Nancy Pelosi was asked about the constitutionality of Obamacare, she replied, “You can’t be serious?”        

The Court was very serious last week, good news for civil and religious freedom. But there’s also a possibility that we may see the law voided on constitutional grounds and still face administration officials wedded to the notion that morally objectionable treatments are basic rights in “women’s health.” President Obama made a video for Planned Parenthood this week that put abortion in that slippery category.

The 1996 symposium shows why a single good decision now cannot undo decades of bad habits. The late Fr. Richard John Neuhaus characterized the debate thus: “The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.”

Citing both the form and substance of decisions on matters like abortion and homosexuality, he compared them to the “long train of abuses and usurpations,” invoked by the Declaration of Independence:

The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy. . . .What is happening now is a growing alienation of millions of Americans from a government they do not recognize as theirs; what is happening now is an erosion of moral adherence to this political system.

Behind this lay a series of judicial decisions forcing a choice: “God or country.”

For Robert Bork, another contributor, an additional problem lay in the fact that this was no mere passing state of affairs: “The idea that the Constitution should be interpreted according to that original understanding has been made to seem an extreme position. That is convenient for those who want results democracy will not give them, but the truth is that violation of original understanding ought to be the extreme position. . . . It seems safe to say that, as our institutional arrangements now stand, the Court can never be made a legitimate element of a basically democratic polity.”

Liberal observers of the legal system, of course, pooh-pooh such language. After all, these are simply discrete issues on which they’ve won. But in the symposium, Russell Hittinger exposed this line of reasoning for what it is, not a matter of isolated statues, but:

authoritative renderings of the fundamental law, such laws would be laws (1) that deny protection to the weak and the vulnerable, especially in matters of life and death, and (2) that systematically remove the legal and political ability of the people to redress the situation. A polity that creates and upholds such laws is unworthy of loyalty.


The Catholic Thing’s own Hadley Arkes, saw an even further threat that has become only too palpable in subsequent years: “It is one thing to say, as the courts already have, that the moral precepts of Christianity and Judaism may not supply the premises of the law in a secular state. It is quite another to say that people who take those precepts seriously may be enduring targets of litigation and legal sanction if they have the temerity to voice those precepts as their own and make them the ground of their acts even in their private settings.”

Finally, Robert George put the case strongly: since ancient times, it’s always been believed that an immoral law is no law and must be resisted – not “personally opposed,” and never tolerated. He cites John Paul II’s Evangelium Vitae: that when human dignity is disregarded, “democracy, contradicting its own principles, effectively moves towards a form of totalitarianism.”

And adds: “People of good will – of whatever religious faith – who are prepared to consider seriously the Pope's teaching in Evangelium Vitae cannot now avoid asking themselves, soberly and unblinkingly, whether our regime is becoming the democratic ‘tyrant state’ about which he warns.”

That question has not gone away and may be back – sooner and more urgently than we think.

 
Robert Royal is editor-in-chief of The Catholic Thing, and president of the Faith & Reason Institute in Washington, D.C. His most recent book is The God That Did Not Fail: How Religion Built and Sustains the West, now available in paperback from Encounter Books.

The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.
 
 

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Comments (29)Add Comment
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written by Gian, April 02, 2012
An analogy can be made between how Protestants used the text of Scriptures to attack the traditions of the Catholic Church and how the Left uses the text of Constitution to attack the traditions of the American Republic.

The point is that the written thing is only one thing among many largely unwritten things that make up a Church or a Republic. The originalist project is not viable since the unwritten customs have so much changed in 200 years and that reflects in the changed understanding on the text of the Constitution.
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written by Manfred, April 02, 2012
This is an excellent and timely article, Dr. Royal. Thank you. This thought process began for me circa 1965-1970 after I had served as a reserve Army officer and the Viet-Nam War was becoming prominent. Books such as Bright Shining Lie and The Best and the Brightest were telling frightening stories of a Nation no longer moored to any moral reality. Roe v. Wade in 1973 was the final push for me in the political realm while Catholic "divorce" and the abandonment of the prohibition against contraception, de facto, by the Church, has left me and my family with traditional Catholicism, but with no Church and no Country for forty years. Robert E. Lee, in a letter to a British friend, saw the "despot" setting its sights on foreign lands to seize and control having consolidated its control on all of the U.S. Within a few decades after the Civil War, it had seized Cuba and the Philippines and had given Korea to the Japanese. I always remind anyone who will listen that Hitler (The Leader) was elected.
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written by Grump, April 02, 2012
When, may I ask, in the history of the world, has there ever been a true democracy modeled after the Athenian ideal? Please cite an example.
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written by Robert Royal, April 02, 2012
Grump, you're asking a question about a something that has not been asserted here. The American Founders deliberately avoided the model of the old Athenian polis and the medieval Italian city states because those had ended in disasters of various kinds. The Constitution and other safeguards were intended to prevent some of the obvious dangers of popular government. The question that won't go away is at what point is a democracy in remediable error, and at what point -- particularly when it legally stigmatizes the opposition as hate speech or a violation a newly invented "fundamental rights -- does its legitimacy start to come into question. We may or may not be there, but if there is such a thing as a fundamental political question, this is it. And that's worth debating.
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written by Jacob, April 02, 2012
I'm going to write a sci fi novel and that issue of First Things is going to be in it!

Some forlorn future human surveying a destroyed earth is going to look at a dusty tattered copy and sigh "hehhhh.. that's when they knew.."
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written by petebrown, April 02, 2012
Very interesting piece Bob....a couple of reactions.

1) That 1996 symposium actually looks rather dated from today's perspective, no? Then we were worried about judicial usurpation of power....but now we are worried about Congressional usurpation of power and are hoping that the formerly tyrannical court will actually be the one to rescue us from it. There's an irony here no? Apparently worrying about judicial activism looks a little passe?

2) This case may expose some fault lines that have long existed on the right between judicial positivists like Bork--who if their stated principles are to be believed--tend to express broad deference to the democratic process--the very process which gave us Obamacare in the first place--and natural law folks like Arkes and George who do believe that judges should at times enforce particular implicit values. Is this potential division between different strains of conservative jurisprudence a good thing?

3) Finally, there is another irony. We wouldn't be having this discussion if Congress had been even more bold and aggressive and simply wiped out private insurance altogether, by extending Medicare to the whole US population. Then there would be no discussion about broccoli and cell phone mandates. And it would be hard to see how anyone could challenge its constitutionality. Alternatively if Obamacare dies, one could easily foresee that the Dems would expand the govt. role more incrementally by slowly lowering the age for Medicare and increasing the eligibility for Medicaid. Is either eventuality more conducive to liberty than the survival of Obamacare now? What do you think are the issues here? Is opposition to the mandate now necessarily the hill that conservatives should want to die on? I'm not sure but I'm a little less convinced of it than you seem to be.
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written by Grump, April 02, 2012
Dr. Royal, my retort would be to quote Winston Churchill: "The best argument against democracy is a five-minute conversation with the average voter."

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written by Robert Royal, April 02, 2012
Pete, you raise good questions, as usual. But let me say at the outset that I'm not concerned about where conservatives should stand. I'm worried about civil and religious liberty.

Perhaps I should have made this clearer, but as I mention in the column, we may see Obamacare voided and still be subject to the Sebelius, Pelosi, Obama axis of tyranny. I'd like to think that when Pelosi said "You're not serious" when questioned by a reporter in the mainstream media about constitutionality, something of a Rubicon moment arose. Either her comment is just an expression of San Francisco liberalism, or the constitution essentially means nothing anymore, for Congress, Presidents, cabinet secretaries. The justices may resist this power grab, but for how long? I don't think those questions about the judiciary are dated, or even that they're solely about the judiciary.
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written by Chris in Maryland, April 02, 2012
Gian:

"The originalist project is not viable since the unwritten customs have so much changed in 200 years and that reflects in the changed understanding on the text of the Constitution."

That is an unintelligible statement. The constitution is in the realm of law, and customs are not. What is this confection you have conjured up called "unwritten customs?" Is this somehow to be distinguished from writtern customs?

Labor has priority over capital because labor came before and produced capital (Lincoln). States have priority over the federal government because the states came before and produced the federal government (framers of the Constitution). People have priority over the States and the federal government because people came before and produced the states which produced the federal government (framers of the Constitution). Breach of authority by any government aganist this hierarchy (People, state govt, federal govt) is tyranny. America was founded as democratic Republic because the framers of the constitution observed that the accumulation/centralization of power inherently contradicts/threatens the American political hierarchy (People, state govt, federal govt).

Benjamin Franklin's warning resounds: "A republic, if you can keep it..." Democratic republics restrain tyranny...even the tyranny of "democracy itself."
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written by Louise, April 02, 2012
Dear Mr. Grump:

May I respectfully suggest that you read Fr. Schall's book, "The Mind that Is Catholic", especially, Chapter 5: 'The Uniqueness of Socrates.'

No regime is perfect. So pray that every tyrant who comes along who tries to create the perfect regime is defeated--in his second campaign, if not his first.
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written by petebrown, April 02, 2012
To ask a more direct question Bob, suppose the Congress simply expanded Medicaid eligibility to the whole under 65 US population and allowed people to still carry private insurance either in lieu or to top off what Medicaid covers.

This would represent a much more vast and straightforward expansion of the government role in health care but it would at the same time render moot all the constitutional issues being raised surrounding mandates and HHS regs on birth control and religious freedom.

Is this a better eventuality in your view? Because such a development is foreseeable if Obamacare falls or even if it survives without the mandate. Maybe it is better! I'm not sure myself. It would be difficult to see what the conservative opposition to a simple Medicaid expansion would be either in Congress or the courts. This is I think an important question about which I'd be curious as to what you think.

Maybe this is all a sure sign that the GOP should get serious about health care reform too, instead of constantly playing defense and being forced into alot of ad hoc strategies that make it really unclear what their eventual endgame is !
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written by Robert Royal, April 02, 2012
You ask several questions, Pete, to which I wish I had good answers. I think much of that has to emerge in debate over desirable goods v. limited government, in which both need to kept really, not just nominally, in play. We've had a very graphic example of heedless disregard of both limited government and religious liberty in the Obamacare controversies. For at least a few years, however, I don't believe any one party will control the White House and both houses of Congress again, so the threat you envision seems less than immediate, since such measures could never be passed without one party controlling government.

In the longer run, I would advocate one simple principle: I'm opposed to any further transfer of power to the State, since all modern states, by design or inertia, tend towards anti-Christian authoritarianism or worse. Christians feel this pointedly now, others may see it before long.
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written by Ray Hunkins, April 02, 2012
Excellent Dr. Royal and excellent, thought provoking comments as well. For me, the key to remediation of our civic ills, and reform looking to revitalize our civic life, lies in the reform of our educational system. We must produce literate, knowledgeable citizens. For the most part we are not doing so and the results are visible. That is the unstated premise of many of the comments above. Most of the judges and justices in our society suffer from the same educational defects as the rest of society. Our law schools do little to educate broadly, with any attention to the history or philosophy of jurisprudence. We graduate "practitioners" and emphasize "clinics". And it is from this "pool" that we select our judges and justices. Our law schools are failing our civic society in this regard but then, so are our institutions of higher learning (for the most part) and our public schools (for the most part). If we cannot produce a civic minded polity, we cannot produce good leaders and our democratic republic will fail.In my opinion, reforming our civic society starts with reforming our education system.
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written by John Hinshaw, April 02, 2012
The 1996 Symposium is more clear and insightful today than we are. Fixations on the fact that the positions of the furniture have changed since then obscures the reality that we are still in the same room and even the sticks of furniture are THE SAME. The current state of things is the latest and largest grab for power by the Federal Government in at least 70 years, is in the hands of those 9 unelected brilliances. Even clearer, the "swing guy" who most acknowledge will decide the fate of our children's relationship to their government is the same as in 1996! This is the guy who opined in the infamous "Casey" decision, that if the court did not re-authorize "Roe v. Wade", they, The Supreme Court, would look bad. If my memory serves me well, this method of issuing decisions was addressed as part of the Symposium and helped provoke it.
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written by Grump, April 02, 2012
Dear Ms. Louise:

Socrates and I go way back. Just before he had to drink the hemlock, he said: "The hour of departure has arrived, and we go our ways -- I to die, and you to live. Which is better God only knows."
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written by Diane Schlosser, April 02, 2012
To Jacob whose comment was that he was going to write a sci-fi novel based on that symposium.
My reply:it's already been written. It's called The Hunger Games!
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written by Scotty Ellis, April 02, 2012
Of course, our constitution was never explicitly democratic in structure; it was in its original intent a form of representative or elected aristocracy, in which the political relevance of an individual's opinions was determined by his socio-economic and ethnic status. To some extent, I would argue that original intent is somewhat of a red herring, since no one truly wants to revive the literal original state of the government. Or, in other words: the traditions of an institution are themselves subject to development, rendering the majority of "traditionalist" or other fundamentalist interpretations into anachronisms.
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written by Chris in Maryland, April 02, 2012
@ Mr. Ellis:

Your argument is weak because you are arguing against a weak strawman - you are making a simplistic attack against a similarly simplistic strawman - your self-termed "traditionalist" or "fundamentalist" target.

And you are also making the same mistake as Gian, confusing the idea of law with that of custom. As I've already dealt with the latter issue, I address to you the former.

Tradition is an inherently strong principle of civilization, a principle that is understood and appreciated by those who revere the value of tradition. At the same time, tradition is often misunderstood by "traditionalists" and "progressivists" alike.

Since traditions are literally "handed down" from one generation to the next, they are by their nature intended to function in two simultaneous ways: 1st - to operate to help the younger generation profit by learning from the wisdom/benefits of the older; and 2nd - to bestow on that younger generation the custody over the tradition, and by so doing, give it authority to make changes that grow organically from the tradition. By analogy - we recognize that a tree or a vine is alive because they grows new branches, and we recognize that a branch is of that tree or vine, because it grows organically out of the tree or vine (i.e., it is of the same species/identity).

Joining the analogy about identity and organic growth/connection back to the 1st issue - interpretations of the Constitution of The United States that preserve the constitutional principle of our republican democracy are in bounds - they grow from the American tree. Interpretations that are opposed to that principle are a different specie - they are very different political ideas. Worse, they are inherently self-destructive - because they recognize no limits on political power - which is the animating idea of The U.S. Consitution.

Or, in other words: the "innovations" of an institution are themselves subject to development, swiftly rendering the majority of "innovationist" interpretations into anachronisms.
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written by Flamen, April 02, 2012
The U.S. Conference of Catholic Bishops is "waging war" against the mandate and want to overthrow Obamacare. Has our German Pope and the German bishops been waging war to overthrow the German national health care system which pays for contraceptives for girls up to the age of 20 and pays the doctors' bills? Is this "cafeteria Catholicism?
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written by Martial Artist, April 02, 2012
Mr. Royal,

In response to your comment that "For at least a few years, however, I don't believe any one party will control the White House and both houses of Congress again, so the threat you envision seems less than immediate, since such measures could never be passed without one party controlling government" I would offer the following for your consideration. If Mr. Obama is not reelected, but one of the Republicans who is wholeheartedly prepared to take half measures to forestall the looming fiscal crisis, one which not a few economists see as presenting the possibilities of our own Weimar Republic experience within the decade, then you may be overlooking a possible outcome contradicting your belief. If the collapse does occur and does so on the watch of a Republican following Obama, the political outcome could be that a majority of the electorate, mind-numbingly ignorant of economics (and the Rule of Law) might well blame the Republican party for the mess and we might well see one of the parties in control of both branches for a period comparable to that we experienced from 1930-1945.

In my humble opinion, there is only one candidate in either major party who actually understands the magnitude of the problem of fiscal profligacy and the kind of steps that need to be taken to have any hope of ameliorating some of its more deleterious likely effects. And all of the pundits are saying that candidate is unelectable. If both they and I are correct, then we are on this comment thread engaging in a futile evolution.

I hope and pray that such is not the case, but I am by no means sanguine that I am wrong. Fortunately, I am already 66 years of age and from a not terribly long-lived line, and, therefore, not likely to have to suffer through the likely span of such an ordeal.

Pax et bonum,
Keith Töpfer
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written by Scotty Ellis, April 02, 2012
Chris:

"Tradition is an inherently strong principle of civilization, a principle that is understood and appreciated by those who revere the value of tradition. At the same time, tradition is often misunderstood by "traditionalists" and "progressivists" alike."

I might agree with this to some degree, but to another degree a tradition has no independent existence apart from the participation of a community; that is, as you note, tradition is an active, not passive, handing down and reception. As such, the "misunderstandings" you speak of, if passed down and practiced, become the substance of the tradition. This is what I mean about anachronism: the fundamentalist believes that the tradition, frozen at a particular moment, represents the "true spirit" or "heart" of the tradition, and seeks (in an anachronistic way) to once again externalize that tradition.

"interpretations of the Constitution of The United States that preserve the constitutional principle of our republican democracy are in bounds - they grow from the American tree. Interpretations that are opposed to that principle are a different specie - they are very different political ideas. Worse, they are inherently self-destructive - because they recognize no limits on political power - which is the animating idea of The U.S. Consitution."

Here you obviate the very apt observations of your previous paragraphs. If you ask the individuals who you blame for destroying or departing from the Constitutions, they will likely give you the answer that they are not at all; that they believe their actions are in line with the Constitution, at least as it is now interpreted (by them, of course). But it is important to realize that this thing that you categorize as a misunderstanding is for them a genuine understanding (and, indeed, it really isn't that novel; you could argue that the entire series of events culminating in the civil war was precisely this sort of disagreement taken to its extreme). Anyway, if the children really are given custody over the tradition, and if they really can change it (as they will, no matter if they try their hardest not to do so), then it will be the case that over time the understanding of what the Constitution means or intends will itself develop, evolve, and change - and it will be no less a genuine tradition for doing so. In fact, it will be the vitalization of that tradition.

"Or, in other words: the "innovations" of an institution are themselves subject to development, swiftly rendering the majority of "innovationist" interpretations into anachronisms. "

I totally agree; this only serves to confirm my point. The founding fathers were once innovationist, but their interpretations of what our government should be are now quite anachronistic. Even if we look back for inspiration and insight, we still obviate those portions of their beliefs that have fallen out of favor - like women and blacks not voting. They were insightful, but, like ourselves, they were products of their time; in time, my ideas, if they are passed on at all, will be changed and perhaps eventually obviated. That is well; I would hate for the world to be stuck with my limited understanding.
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written by Scotty Ellis, April 02, 2012
Flamen:

Excellent question, to be sure. I believe it reveals that the primary motivation is political in addition to religious: it is an election year, and the Republican-Conservative-Catholics see the healthcare debacle (no doubt poorly handled by the administration) as an opportunity for an election year warpath. That countless other countries have socialized healthcare - and do not have a huge, ongoing public relations war with the Church over it - suggests something of the flavor of red herring, even if a great much of the Bishop's complaints have a legitimate ground (as the Supreme Court seems to be noting).
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written by Tony Esolen, April 02, 2012
The Constitution, as I see it, is a blueprint for limited government at the federal level; it is the law for making laws and for disallowing laws. It is no more "outdated" now than the structure of a baseball game is outdated. In fact, its relevance is greater now than ever, because its inherent suspicion of centralized power, if given the respect that suspicion deserves, would help us to see the absurdities of the system we now have.

For we have a monstrosity. The most niggling questions of local custom and even personal behavior are referred to a national government of over 300 million people, or, worse, to a Star Chamber of Harvard graduates, all lawyers. That is what our Founders called tyranny. It doesn't matter that we happen to have an electoral mechanism that gives each one of us some exiguous "influence" over the Golem. Big deal. The real exercise of political action should be primarily by way of traditions and customs, lived locally. Does it really make a difference -- I am sorely tempted to use an obscene modifier here -- does it really make a difference that some jobbing Bozos in Washington DC work to determine what goes on in your local public school, rather than a committee of unelected Swedes or Danes? Exactly how much less real political power would we possess if it were the Swedes or Danes?

The hypothetical question isn't idle. Jurists in Nanada of the North and in our own United States have explicitly proposed using "precedents" coming from legal cases in Europe -- in other words, cherry-picked "precedents" coming from the same cabals of cultural "elites" there as here. We now have neither a republic nor a democracy. We are ruled by lawless jobbers.
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written by Gian, April 03, 2012
The animating principle of the US Constitution seems to be Individual Liberty. The logical end is the present libertine despotism, foreseen by Dostoevsky.

The American system was designed to free people from local customs. That's why the stress on "pursuit of happiness".
In Lockean thought, local customs and people embodying them are obstacles to individual liberty.

Customs form "chest" and without them, we are men without chest, dependent upon frail intellects, tossed here and there by delusively perceived self-interests
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written by Chris in Maryland, April 03, 2012
Scotty:

Your response is not an account about what tradition means, it is instead an observation about decay - that the confusion and misunderstanding by "traditionalists" and "progressives" amounts to tradition. No - it simply amounts to decay. Your account doesn't register the stabilizing principle charactersistic of tradition. Your account is exclusively about change, there is no sensibility whatsoever about revering what has been learned/experienced before. There is no stabilizing principle to conserve the good handed down. Your account does not even reach the level of disdain for what has gone before, which would put you in the vulnerable spot of taking a position. It merely registers as indifference, which has no content.
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written by Chris in Maryland, April 03, 2012
Gian:

Sorry Gian - you don't get to redefine the Consitution as you like. TheAmerican system is explicitly designed to free people from tyranny in any political form, not the "re-intrepretation" called "local customs."
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written by Scotty Ellis, April 03, 2012
Chris:

"Your response is not an account about what tradition means, it is instead an observation about decay - that the confusion and misunderstanding by "traditionalists" and "progressives" amounts to tradition. No - it simply amounts to decay."

No; tradition by its definition is not static. It changes; it cannot help but change. Like a game of telephone, even a group that explicitly intends to keep a static, unchanging tradition will find that alteration of the symbols and meaning will occur through the process of transmission. This is called the development of ideas, and its constitutes the activity of tradition. You may not like the way a tradition is going; fine. You will join the ranks of many throughout history who disliked where tradition was going (consider the pagans of the fourth century, who watched in horror as the ancient traditions of the Roman religion were first replaced and then destroyed by Christians - one has only to investigate a figure like Julian the Apostate to see the fervor and anger that this change in Roman tradition evoked, a change that they would have described as decay). But it is only sleight of hand to call agreeable developments as "genuine tradition" and disagreeable development as "decay." It is perhaps much more truthful to simply admit that you prefer things the way they used to be (whatever that might mean).

"Your account doesn't register the stabilizing principle charactersistic of tradition. Your account is exclusively about change, there is no sensibility whatsoever about revering what has been learned/experienced before."

This is because tradition, like all social practices, is in flux. Like language - probably the most fundamental set of social symbols - the contents of a tradition will naturally change simply from use, and will definitely change or develop in response to social crises. We can look at Christian doctrine for a perfect example: a heresy forms, which constitutes a social crisis. The heresy threatens the status quo, the given religious symbols and meanings. In its reaction - that is, in its effort to combat the heresy - the Church puts forth new redefinitions, more elaborate explanations - in short, it both develops and adds to its religious symbols. This is merely the result of a tradition being active: the only unchanging traditions are dead traditions.

"Your account does not even reach the level of disdain for what has gone before, which would put you in the vulnerable spot of taking a position. It merely registers as indifference, which has no content."

Why should I disdain what has come before, even if I disagree with it? I disagree with geocentrism, for instance; I do not treat it with disdain. What many on both sides of the political debate - including the one relevant to this article, the health care debate - often overlook is that even the ideas against which we are reacting or with which we are disagreeing form an important part of our own doctrine. Church doctrine would not be anywhere nearly as developed as it is now had it never had any heretics: that is, if it did not constantly have to react to new social threats by means of elaborating its set of religious symbols.

In any case, my whole point was to respond to this article's implication that judicial activism is not part of the Constitutional tradition: my point is that it is now, that the activity of tradition has resulted in change (something that I imagine you would not disagree with - after all, I assume you are okay with women voting, for example?). I do not believe I have to express rancor in order for my comment to have meaningful content.
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written by Chris in Maryland, April 04, 2012
Scotty:

I regret to say that trying to engage with you on this topic is like the movie "Ground-hog Day." Your response does not engage on the counterpoint...you simply amplify your original point.

"[T]radition ... is not static. It changes; it cannot help but change. Like a game of telephone...."

That tradition admits change is not news to people who revere tradition. Yet you miss the essential point. Tradition is not what you misunderstand it to be. Your radio could use some calibration - a broader band receiver might enable discussion. Until then, farewell...
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written by Scotty Ellis, April 04, 2012
Chris:

Would you be willing to elaborate what part of my definition of tradition you believe to be incorrect?

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