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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Monday, February 24, 2003

STEVEN DEN BESTE sets out a, well, manifesto of sorts. This pretty much describes my political outlook, too, but I have some things to add.

The main thing is, the rest of the public is not required to agree with me. We have the Constitution, and it sets out certain things that are completely off the table (unless one can crank up the Article V process, that is); those things aside, though, there is nothing that absolutely must be a certain way. It doesn't matter how horribly unjust a measure may be according to this, that, or the other ideology: If the Constitution does not stand in the way, nothing forbids it being the law of the land. On that basis, I part company with at least two of the four Horsemen of the Ablogalypse: Andrew Sullivan, because he's desperately flogging the idea of gay marriage as something which must happen, and Glenn Reynolds, because he champions judicial legislation under the rubric of Griswold v. Connecticut (a position which includes Sullivan's, along with a great many other things).

I've been meaning to write on Sullivan's gay-marriage bid for a long while, and haven't mustered up the energy on a suitable occasion before now. I've had this in mind ever since Sullivan, griping about the "Defense of Marriage Act," posted a dishonest little piece about interstate comity and how it was that one State's legalization of gay marriage need not necessarily produce -- and in fact would not produce -- nationwide legalization as a consequence, and citing a number of old antimiscegenation cases in support, never mind that all those cases were dead in the water on other grounds. Far more on point, in my opinion, are the 1940's cases about quickie divorces in Nevada and Florida. There are respectable and persuasive arguments about the enormous scope of the damage brought about by these decisions over the intervening decades; I find myself giving them a great deal of weight, though I do not consider them dispositive. The thing is, if Sullivan's argument is correct about gay marriage and interstate comity, then the Supreme Court was wrong when it force-fed two quickie Nevada divorces to North Carolina (Williams v. State of North Carolina,, 317 U.S. 287 -- "Williams I"), and in all the subsequent 1940's litigation that confirmed the fears in the minority opinion by reducing the nationwide laws on divorce to the lowest common denominator. So we have it that the Supreme Court can royally screw up basic questions of family law, though the questions therein do not belong to the Federal government, by futzing around with interstate comity, and the country must abide the consequences, whether the Constitution itself countenances the result or not. And this was true of the Court in the 1940's, before the fashion of social engineering from the bench hit its stride, and long before it became de rigueur for all "right-thinking folk" in public discourse to proclaim their allegiance on every possible occasion to the gay-marriage cause. So the one who asserts that the Supreme Court cannot turn one State's gay-marriage license into national policy either doesn't know what he's talking about, or is flat-out lying. My suspicion is that Sullivan hopes for the establishment of gay marriage by fait accompli: that the same man who publishes an elaborate denial now about interstate comity will be quite happy to publish the-Supreme-Court-says-the-Constitution-says-it's-the-law-of-the-land-so-get-over-it-already in the future. I would prefer not to think this, but then I hit another question: If the Defense of Marriage Act accomplished, as Sullivan says, no more than what the Constitution already required, then why were Sullivan's knickers so twisted by the Act itself?

Now as a policy matter I have no problem with gay marriage. Whatever damage might be done to the institution of marriage by countenancing gay marriage (and I am far from saying that there would be any such damage), it cannot possibly measure up to the damage done that same institution by ubiquitous divorce-on-demand. But the public is entitled to weigh all this -- especially when dealing with something as important as marriage -- and to come to a decision with which Sullivan and Reynolds (and Den Beste) disagree, and to work that decision into law. Nothing in the Constitution requires that gay marriage be legal. Other than that, all Sullivan and Reynolds have to offer is their own personal ideologies, and the public is not required to conform to those, either.

So, back to the chief topic, which was, Den Beste's (and my) rejection of purely ideological politics. The other point I want to make is, those who do engage in purely ideological politics are unfit to live in a society where disagreement is allowed.

On one of the online discussion groups I frequent, I had a conversation recently with someone who announced, out of the blue, that, since he believed in a complete ideological wall-of-separation between state and economics (he recently discovered Ayn Rand, and the new hasn't worn off yet), and since Congress had not obliged him in this regard, he no longer cared what Congress did: They were free to suck the Country dry, and he'd just sit back and watch it happen. I posted back to him, among other things, "Even in the most stringent dictatorship, there is no one who can say, 'The government policy we have now is just what I would have chosen,' and there never will be. What chance do you have, then, of achieving such a thing in a republic?" Here's the response I got:

Clayton, I guess I've just come to the conclusion that we'll ease ourselves into a completely socialist state eventually. Not at the same clip as France, or some of its EU neighbors, but the path itself seems pretty clear. If I'm right about that, the best I can hope for slower increases in taxes, a few more years without a state run health care sytem, and enough time to get my retirement saved for. Would you say, for example, "Since I can't get what I want, sure, go ahead, have at it, do whatever you want, Senator Byrd-Clinton-Kennedy, I don't give a fuck"? [quoting my prior post] Yes, that's pretty much what I'm sayin'. People who think like them will do whatever they want, eventually. I kinda wish they'd go on and speed it the hell up so I can watch what happens. [...] In the mean time, I'll bitch and moan about the cries for the government to make us all prosperous and happy, and keep on talkin' up my libertarian utopia. Honestly, I no longer see much else I can do. My side lost generations ago, and we're too far gone to ever make any real gains.

In a nutshell: "My way or the highway." Let's set aside the contradiction of someone whose ideological dedication to personal freedom pushes him to look forward to scenes of government-imposed misery: No free society can operate this way. There is no merit to be had in ideology, qua ideology, in public discourse; instead, it holds out to us the certain prospect of unbounded suffering, no matter which ideology it is.

I have my own personal ideology, and I apply it to policy questions rolling around in the public debate. On those questions, I probably agree with Reynolds and Sullivan in most cases. My overriding concern, though, is the United States Constitution, and the republican government and pluralistic society it represents, wherein I must make accommodation for those who disagree; this is an effort Reynolds and Sullivan do not make. They do not see any contradiction between the means they choose to push a particular freedom, on the one hand, and the general idea of a free self-governing society, on the other.

-- posted by Clayton 2/24/2003 10:30:00 PM

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