Saying “do justice” to a judge is almost as dangerous as saying “be moral,” take for instance the ongoing homosexual marriage debate that is raging in our country. Gay marriage is a rather important debate, even perhaps a watershed issue, because it is contrary to a morality which many in our nation adhere to while at the same time being decided by political institutions. Many Americans view homosexuality as inherently immoral, while political powers seek not to determine the morality of the issue but the financial and legal ramifications of its acceptance.

For the political institutions of our country, the issue is not one of morality but one of popularity and legality. The internet is abuzz with the news that recent polls reveal several states may be ready to legally approve gay marriage and overturn recent bans. But what does that do to moral consensus? Does a populist approval of a practice mean that the moral consensus is that homosexuality is not immoral? Is it popular vote that determines what is and is not moral consensus?

This is perhaps one of the largest challenges in establishing moral consensus because what is popular is not always moral. It was once popular to hold Africans as slaves and drown suspected witches and it is still popular to kill unwanted unborn children. Neither popularity nor politics determine morality, nor should they attempt to do so. While we would wish that politicians recognized certain behaviors as immoral in making their decisions, they should not see their decisions as affecting the morality of an issue. Legalized behavior may still be immoral, as much as moral behavior may be against the law of the land.

So what does all of this do to moral consensus? First, all of this means that it is necessary to determine the group of people with whom we are attempting consensus. Universal acceptance of a given statement of morality is highly unlikely. We cannot have consensus with everyone, but we should not limit the group to people we already agree with or we risk tunnel vision. For instance, our view of the immorality of gay marriage may cause us to overlook the fact that it is quite odd for the government to give tax incentives to people who own a thirty dollar marriage license. We are not creating a cloister but attempting to create change in America. This necessitates other people from different viewpoints being involved.

Second, popular vote may be reflective of moral thought, but people need to be taught that morality and popularity are not the same thing. Most people have no foundation for morality other than popularity. In order to consensus to be reached, moral foundations must at least be similar or of the same genre, such as the belief that moral absolutes do exist. Rather than simply finding the people with similar foundations, foundations can and should be taught in order to create consensus.

Third, in order for moral consensus to have an affect, it must affect the masses and politics. True, politics should not attempt to dictate what is moral. However, the dictates of true politics should be moral. Moral consensus cannot be established to give elites something to brag about or be held in a cultural vacuum. Rather, moral consensus must make an impact upon political institutions in order to cause laws and guidelines which are moral.

The next few years will be an interesting glance into American morality and the political system as Americans attempt to argue the morality or immorality of a political question. Should our country financially recognize an immoral lifestyle? And if it does, what does the task of moral consensus look like when it is in the popular minority.

Fascinating article today by Samuel Gregg on why it would be a bad idea to enshrine stronger protections for property rights and a sound money supply in the U.S. Constitution, as some are proposing. Short version: constitutions are important and some constitutional protection of economic rigths is necessary, but the recent experience of Europe (both in the Euro and in some domestic developments within EU nations) shows how these kinds of constitutional and treaty obligations can actually be counterproductive if it’s too far at odds with the prevailing cultural winds. Example: the treaties creating the Euro required European nations to get their fiscal houses in order, but those nations faced countervailing cultural imperatives that were stronger; in order to obey their cultural imperatives in favor of ever-expanding welfare and debt without openly violating their treaty obligations, they began engaging in all kinds of fudging and ledgerdemain. This has now greatly compounded the problem of fiscal irresponsibility by removing most of it from easy view; it has also opened many more doors for graft and injustice as compared to the old “honest” irresponsible finances.

Fascinating history in the article as well about a movement in late 19th and early 20th century Germany, the “ordoliberals,” that advocated similar constitutional reforms to fight cartelization of the economy, but insisted constitutional reforms could only be effective insofar as they tacked with rather than against prevailing cultural winds.

Image by Kiwi

I confess that this entry is more of a plea for input than anything else. Jacques Berlinerblau, author of a new book on secularism and religious freedom, recently made two disparate comments on a local radio show that together offer some insight into his views of the relationship between freedom of speech and freedom of religion (I think). Religion is often, he remarked, a very good thing in the public sphere, and it has done a lot of good for society. But sometimes it gets out of hand, when religion shows its “dark side,” we have take some sort of action. “A good secular government,” to Berlinerblau, doesn’t support religion under all circumstances. Rather “it takes a much more intelligent and nuanced approach [to the question of religion, and says…‘We need the FBI to monitor that’” when the dark side appears. In discussing freedom of speech, however, in the context of the recent video that sparked protests throughout the Islamic world, we simply have to allow the freedom to insult, as it were. It is highly unfortunate that such videos exist, Berlinerblau acknowledged, but we cannot let the government get into the business of “refereeing” speech.

I don’t want to make this a post about Professor Berlinerblau’s views; in all fairness these were off-the-cuff remarks on a radio show, not excerpts from his book. What I do want to call attention to is the necessirty of choosing where to place restrictions – on speech, on religion, on both, or on neither. Berlinerblau is onto something when he acknowledges that some limits must be imposed, but to him, it would seem, religion should perhaps be more carefully monitored than speech. And again, a disclaimer: he didn’t expand on when and how FBI intervention should occur with religion. Furthermore, he acknowledged that fighting words and yelling ‘fire!’ in a theater are not protected speech, so limits exist on both sides. Still, the FBI should monitor threatening religious groups but not potentially inflammatory speech. But, well, why?

To complicate matters, we can also throw in a competing conception of religious freedom. Many in the Arab world have expressed a view of religious freedom that goes a step further than, ehem, mere FBI surveillance. According to a recent New York Times article, the editor of a Coptic Christian newspaper expressed approbation over the protest, at least “if it had stayed peaceful.” To him – notably, not a Muslim, but also not a Westerner – it may be perfectly reasonable to place restrictions on speech in the name of religious freedom, albeit a particular and very different conception of religious freedom than we typically hold in America. The Times article expressed it as “the right of a community, whether Muslim, Christian or Jewish, to be free from grave insult to its identity and values” (emphasis added).

So here we are: to Berlinerblau, we should monitor religion but save pretty much all speech. To the Coptic newspaper editor – at least if we extrapolate his views (perhaps unfairly, but for the sake of discussion) – we should monitor speech to save religion. This taps into the tension between communal religious freedom (libertas ecclesiae) and individual freedom (libertas personae), as well, of course, so for the moment I’ll stop and simply ask: any thoughts? And given that the American conception of religious freedom is heavily weighted towards libertas personae, to what extent can we expect to deploy it as a universal human right?

Dan Kelly’s most recent post, probing the conflict between judicial activism and self-governance, brought to mind an oft-recounted tale. The most common formulation is found in Judge Robert Bork’s 1990 book The Tempting of America:

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job.  It is my job to apply the law.”

Hoping to include this exchange between two of America’s towering legal figures in a response to Dan’s piece, I did a quick search to fact-check my recollection of the story. Lo and behold, it seems Judge Bork’s account is but one of several. That in itself isn’t so big a deal…unless one of those other accounts is Judge Learned Hand’s:

I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupe. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” He turned quite sharply and he said: “Come here. Come here.” I answered: “Oh, I know, I know.” He replied: “That is not my job.  My job is to play the game according to the rules.”

The differences between the two versions—between law and rules, between playing and applying—are certainly worth further exploration. (Which, as my search revealed, at least one person has already done.) But both versions affirm Dan’s basic point: deviating from known standards is a fundamental subversion of the judicial role. The temporal framework he used to illustrate this point is particularly helpful. Our system of government is structured to pursue past-, present-, and future-regarding values.

I think it’s important to add another layer to this framework, one gives us a clearer understanding of the purposes, and therefore expectations, of our governing institutions. The threefold temporal distinction corresponds to a division of political values that serves as a structural organization of the ends of constitutional self-government. The legislature is designed to express (some form of) the popular will, in pursuit of the goal of consensual governance; the executive is designed to expeditiously implement the law and protect the country; and the judiciary is designed to maintain the rule of law, bringing to bear on the present polity the decisions it previously made. With this understanding we can see that each branch is intended to pursue an equally important value, and that any departure from these institutionally-induced intentions can deeply influence the nature and prospects of our politics.

To this point, all I’ve said is that I agree with Dan. And I’d be happy to leave it there! But, as I intend to push this same point further in the future, I’ll conclude by saying that the structural rationale of our government assumes a certain kind of political culture. And with that, I have a topic for my next post.

Suppose we do have a moral consensus, but we just can’t get it implemented?

Sojourners, the progressive Christian organization, asked both presidential candidates to tape three minutes of video on what they want to do about poverty. Here are the results. WARNING: Hang Together is not responsible for suicidal impulses among Republicans who view the videos.

Here’s a quick recap for those who don’t have time to watch the videos:

Obama: I’m a sensitive human being who cares about the poor, but I’m also intelligent and understand the limits of what can be accomplished. I share your values on helping the less fortunate and will do everything I reasonably and prudently can (unlike some people) but I also share your values on not creating dependency.

Romney: Hi. I’m Mitt Romney. I want you to vote for me. I’m reading a script that was written for me by highly paid consultants because we think it will make you vote for me. You won’t retain a word I say five minutes after I’m done, but you’ll remember that I look creepy. Vote Romney!

Just the fact that he actually begins the video with the words, “Hi. I’m Mitt Romney” really tells you all you need to know.

But as fun as it is, let’s leave aside for a moment the electoral handicapping, because I see a more important issue here.

Good news: Barack Obama feels the need to affirm the bourgeois work ethic and repudiate expansion of welfare. He is unable to present his position as an expansion of the welfare state; he has to depict it as merely a defense of the welfare state’s existence against radical libertarians who want to do nothing for the poor. It’s not the first time; walking back his “you didn’t build that comments,” the president picked up Arthur Brooks’s language and said that in America “you have to earn your own success.”

Bad news: It’s all a colossal con. His administration is clearing a path for states to gut welfare reform and return to endless, endless dependency. Last year the government gave a national award to a welfare office in North Carolina for their excellent efforts to convince people they needed welfare when they didn’t think they did. The local office described this as breaking down their “mountain pride.” (I shared that with a prominent pastor here in my area and he said, “they’re breaking these people down into cattle to be herded.” He’s right.) I’ve got lots more stories and not enough time to type them all in.

So here’s the problem. Suppose we have a moral consensus strong enough that politicians are forced to play along. How do we constrain their actual behavior? The ability of elections to do so is weak. Even Dan admits that the 2008 ballot was not a choice between expanding or contracting government control over all aspects of human life, but merely whether the expansion should go on faster or slower. This year’s election may be an exception where we can really exert more influence. But is that sufficient – one election every thirty years or so? Even the “Reagan Revolution” and the 1994 Republican landslide in Congress seem to have done little other than slow the process down temporarily.

Are there other institutions that can use their cultural power (the ability to name reality) to effectively hold the state accountable for practicing what it preaches between elections?