My piece on the subject for Shalom, the newsletter of the Jewish Peace Fellowship, is now online here. (Scroll to p. 9.)

3 Comments »

A federal court’s decision to enjoin enforcement of California’s Proposition 8 (the ban on gay marriage) is a clear-cut example of the central government trampling on the states, as well as of courts making a mockery of popular government at any level. On the other hand, supporters of the verdict see it, plausibly enough, as a triumph for equality before the law, a principle of republican self-government hardly less important than that of popular rule. Nowadays legal equality means, among other things, that men and women must be viewed as sexually interchangeable.

It’s worth tuning out all the noise that usually accompanies this dispute and taking a long view of what happens when marriage intersects with politics. A good source is Carle Zimmerman’s Family and Civilization. In the post-Roman West, marriage moved from tribal authority (where, for example, prohibitions regarding consanguinity of spouses were not always firmly fixed) to church authority (which was uniform and universal). With the rise of Protestantism, marriage fell increasingly under state authority — owing not only to rejection of the Catholic Church, but for a variety of theological reasons having to do with the proper division of power between secular and ecclesiastical government. As state and church grew further apart (even where they did not formally separate), marriage became by default a primarily secular institution. Not that it had ever been completely religious: common-law marriages in Britain, for example, were only grudgingly acknowledged by religious authorities.

While this was going on, government itself was becoming less personal and more ideological. Republicanism and democracy necessarily laid as great a stress on equality before the law as on popular rule. “Equality before the law,” though, is not a static concept — any individual or group that feels itself to be treated unequally in any way has an incentive to extend the sphere of “legal” equality into, say, questions of wealth or social status. The state itself has motives to broaden its own power — that is, to find new domains over which to extend “the rule of law” and all the mechanisms of adjudication and enforcement that come with it. And since the state begins by admitting few distinctions among its subjects under the rule of law, as the law expands into new areas of life, conventional social distinctions among its subjects collapse. Legal criteria replace all other criteria as administrative law grows.

Because of this, the institutional logic of the modern state is almost unavoidably incompatible with an institution as person-specific and historically complex as marriage. What has been happening for over a hundred years now — much longer in some places — is the redefinition of marriage along lines that accord better with the universal logic of liberal democracy.

Marriage was a necessary institution for heterosexuals not because it was the only setting in which children could be produced or because it’s the optimal setting in which to rear them (true as that may be), but because heterosexuals over time generally will produce children, and marriage is the institution that differentiates legitimate from illegitimate offspring. (In cultures where women were not expected or permitted to work, marriage was an institution necessary for their security as well. This function is also obsolete.) Once the legal debilities and social stigma had been removed from illegitimacy, marriage was already redefined. At that point, marriage lost its institutional and legal anchor and became a free-floating nexus of affection.

The scope of affections granted recognition by the state is now expanding, as a result of anterior changes within society. Even though most Americans still oppose gay marriage, few Americans still hold that homosexuals ought to be stigmatized. What’s a government to do in the face of such a seeming contradiction? Homosexuals have their reasons for demanding access to marriage, the state gains some advantage from granting it to them and has no internally logical reason to deny their petition, and marriage itself no longer has the qualities that once defined as a necessarily heterosexual institution. In this environment, it’s not surprising that the majority will to keep marriage exclusively heterosexual does not prevail.

What practical consequences follow? There won’t be much more homosexuality as a result of this, nor is there any reason why heterosexuals should now be more or less likely to get or remain married. The question of polygamy is completely separate from that of gay marriage — one may follow on the tails of the other, but there’s no reason, even by the state’s peculiar logic, why that must be so. (Certainly plenty of societies have had polygamy without gay marriage.) Conservatives are right to see large implications behind the liberal view of marriage, but they have failed to confront the fact that the liberal view of marriage was already triumphant long before gay marriage appeared on the horizon.

The indirect consequence of the California decision will, of course, be to re-energize the Republican base, which will turn out millions of voters who want to make America moral again, though every time they vote the result is never more morality but only more war and deficit spending. The Left, for its part, will see this decision as a victory and continue to embrace the leveling power of the federal judiciary, even though an excessive reliance on the federal government in general and the judiciary in particular has deprived the Left of a popular base for 40 years — both because there’s little need to organize among the people so long as a few judges can achieve your will, and because relying on those judges only alienates majorities whose will is frustrated. These symbolic victories guarantee that there will be a more right-wing electorate.

The law continues to find new areas of life to bring under its purview, and Judge Walker’s ruling on Proposition 8 may facilitate new legal intrusions into religious and family life. In the sort term, though, the most serious ramifications to flow from his decision will be seen in electoral politics. The ruling gives new currency to a peculiar inversion that took place long ago, one that saw the Left abandon the battlefields of economics and political power for the priestcraft of human rights, and the Right abandon educational and cultural hierarchy for pseudo-populist politics.

13 Comments »

Scott Horton of Antiwar.com radio interviewed me for his show last Thursday. Here’s the audio (MP3). I’m more rambling than usual: the point I make about the two parties being essential similar in their foreign policy, but still having minute differences that can be exploited, might seem rather murky. The overarching thing I wanted to get across is that there are ways to have a relatively noninterventionist foreign policy even if pure noninterventionists are very sparse among the electorate. Not only do the humanitarian interventionists and too-hell-with-’em-hawks often disagree about targets and methods, but the to-hell-with-’em-hawks are themselves amenable to certain kinds of anti-interventionist arguments. I cite in the broadcast Mark Helprin, Angelo Codevilla, and Michael Scheuer as three non-doves with whom noninterventionists can find common cause. (These labels are feeble, I realize, but they are all we have.)

One point I was about to make just as the closing music was playing is that elections only indirectly affect foreign policy. Indeed, they only indirectly effect domestic policy, too, in the sense that what politicians do may be quite different from what voters want. But in foreign policy the distance between the electorate’s intent and what actually happens is much greater, since the public accepts a more passive role and politicians themselves defer to a policy elite. This need not be dispiriting for people who want a more down-to-earth or irenic foreign policy — but it does mean that rather than always putting one’s hopes in mass uprising that “throw the bums out,” one should devote great resources toward building a counter-elite that can a.) provide the expertise even the “good guys” may feel they need, and b.) perhaps provide expertise that even the “bad guys” have to recognize as sound. It’s not entirely true that foreign policy operates independently of elections, but it’s truer than the converse belief that elections determine foreign policy. To change the policy, one has to change the policy minds, not just the politicians or the attitudes of voters.

3 Comments »

My friends at the Front Porch Republic see dire consequences arising from the Supreme Court’s recent Christian Legal Society v. Martinez ruling, which affirmed a circuit court decision that permits Hastings College of Law (part of the University of California system) to deny recognition to student groups that refuse to abide by the school’s nondiscrimination policy. In short, the Christian Legal Society at Hastings must admit non-Christian members and unrepentant homosexuals or it will be denied official recognition — which means no use of college facilities and no funds from student activities fees.

Patrick Deneen warns that “CLS vs. Martinez will foster a number of discrete efforts to crack open existing ‘exclusive’ associations that do not advance the liberal agenda.” This is in keeping with “the logic of liberalism … the evisceration of associations in the name of the individual, achieved by means of the centralizing power of the State.” Christian groups at state colleges and universities have lost a measure of independence, and centralizing power has again advanced in the name of tolerance and legal individualism.

Trouble is, in this case the plaintiff is at least as guilty as the accused. The Christian Legal Society was not fighting under the banner of localism. On the contrary, its members appealed to federal power against the decision of a local authority (Hastings College). If CLS had won, consider what the upshot would have been: it would have refined and reinforced the power of federal courts to overrule the policies that college and universities (which are of course not individuals but associations) set for themselves. Hastings College was wrong to use its nondiscrimination policy to deny recognition to the CLS, but by localist lights CLS was more wrong to make a federal case out of this, since doing so could only undercut local institutional independence.

One might retort that colleges and universities are not really independent institutions, they are already de facto appendages of leviathan, and anyway, no one could imagine federal courts upholding the same case with the values reversed: a state university that forbade its student groups to admit certain minorities would clearly not be tolerated by the Supreme Court. There is an argument to be made that because universities are already effectively nationalized, they no longer count as corporations or associations, and only smaller groups like CLS really deserve the support of localists or associationists (to employ an awful neologism).

Yet universities, as degraded as they may be, are rooted institutions in a way that student groups, including national student organizations like CLS, are not. Indeed, CLS is a more voluntaristic and liberal institution — in formal terms, more individualistic, regardless of how politically incorrect its beliefs may be — than any state college or university. For localists and associationists to side with a transient group against a placed institution like a university (or universities in general) strikes me as highly misguided.

If the greater issue behind CLS v. Martinez is religion vs. secularism, conservatives’ sympathies will be on the side of CLS. But if localism is the lens through which this fight is to be seen, then CLS should not be attempting to use federal power (indeed, individual constitutional rights — including the individual right to form voluntary associations) to overrule local authority, even if that authority rules in a way that neither decentralists nor conservatives like. What CLS tried to do was much like what businesses did in the 19th century by invoking the 14th amendment and the incorporation doctrine to acquire the full constitutional rights of personhood and thereby circumscribe the powers of state and local authorities. Decentralists of all stripes, from the libertarian Felix Morley to the radical Ralph Nader to various Front Porch traditionalists, have seen this as a fatal perversion of the federal system. Is it any less of a perversion if the groups seeking to vindicate their rights through national power are religious rather than economic in character?

It is not even the case that CLS would have had no redress without recourse to the federal judiciary. Califorina, after all, has passed referenda against affirmative action in the UC system and banning gay marriage. The rights CLS wanted to acquire at Hastings College might well have found favor among California voters. But CLS chose to seek justice from leviathan instead. (In fact, it sounds as if the Hastings chapter of CLS may have been started specifically with a view to challenging the nondiscrimination policy in federal court in order to set a national precedent — this is a common tactic of liberal and conservative legal groups alike, both of whom use it to establish new civil rights.)

Professor Deneen is right that liberals, especially those on the federal bench, tend to subscribe to an ideology that would reduce society to an undifferentiated mass of equal individuals overseen by a supreme centralized power. Yet “conservative” groups like CLS are willing to adopt the practices of that very same ideology when doing so will secure them some advantage. There is no room for localism in the culture war — each side employs the same weapons of mass constitutional destruction in the service of its own cause. Ironically, this is something that Thomas Hobbes would have understood very well.

12 Comments »

Jan Swafford has a not very credible piece at Slate titled, “Why e-books will never replace real books.” She He says this:

So real books and e-books will coexist. That has happened time and again with other new technologies that were prophesied to kill off old ones. Autos didn’t wipe out horses. Movies didn’t finish theater. TV didn’t destroy movies. E-books won’t destroy paper and ink. The Internet and e-books may set back print media for a while, and they may claim a larger audience in the end. But a lot of people who care about reading will want the feel, the smell, the warmth, the deeper intellectual, emotional, and spiritual involvement of print.

How much buncombe can be packed into a single paragraph? Autos may not have “wiped out” horses, but they did turn what had been a commonplace mode of transportation into a hobby or luxury, which is more or less what the rise of electronic media is doing to traditional print and recorded media. We’ve seen the same story play out in the economics of literary history: as a new genre, such as the newspaper or novel, takes root, older genres like drama and poetry do not vanish. But they most often do cease to command a mass market.

As for “the feel, the smell, the warmth, the deeper intellectual, emotional, and spiritual involvement of print,” one of the most important lessons that any romantic can learn is that man does not live by affection alone. It’s not enough for the thing you love to be spiritually superior, it also has to be economically viable. To say this is not to affirm any kind of utilitarianism — on the contrary, romantics ought to take the lesson to heart because there may indeed be ways to make the things they love economical. You can’t beat Wal-Mart with sentimentality; but maybe you can beat Wal-Mart with a smarter business plan. That applies to books as well; they will not remain a mass medium on the basis of their smell.

The book-buying demographic is older than the popular-music-buying market, so the change in publishing should come about more slowly than the transformation of the music industry. But the underlying mass-market rationales are the same in each case. Electronic media mean less overhead and higher profit margins for retailers; they mean lower prices, greater selection, and faster delivery for consumers. Given a choice in the abstract between a CD and a music download for the same price, I would choose the CD — there’s some value, after all, in having a quasi-permanent medium and sometimes aesthetic value in the packaging. Maybe there’s even some sentimental attachment to the old shiny disc. But people don’t make purchases in the abstract: availability and date of delivery matter, and mass-market physical retail outlets — especially those catering to the mass market — cannot match online retailers on those respects. (Niche retailers, however, such as good used bookstores or record stores, can compete with and even beat digital retailers in this.)

Books have at least one thing going for them that physical music media do not: browsing is still much easier in print than online — there’s no easy way to flip through an e-reader, short of putting in random page numbers and seeing where they take you. That works, but it’s hardly the same thing. I also find that physical books are still easier to annotate than e-texts are. But all of this must be weighed against the sheer mass and shelving burdens of hard-copy books. Every shelf I own groans under its load, and whenever I move the books are always the most expensive item to transport. The convenience of keeping a half-ton worth of text on a single e-reader is pretty compelling.

Again, I stress that I don’t write any of this because I prefer e-books — as a reader I have a slight preference for print, and as a writer I have a strong preference for print, other things being equal. But other things aren’t equal, which is why e-books are almost certainly going to do to publishing what downloadable music has already done to music.

4 Comments »