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What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

Custom and Law

by Tony M.

One of the constant refrains of conservatives is “tradition.” (In the hands of Catholics, that even turns into “Tradition” sometimes). But either way, it is regularly a bone of contention between conservatives and liberals, or what might be more precise for this discussion, between conservatives and progressives. Many of the regular battles are over whether we should keep a practice that is current and has been practiced for many years, or whether we should change it. For example, the debate over whether we should have women in the army fighting in combat situations. Often enough, (because liberals are often better practiced in the arts of rhetoric) the debate is cast in terms that make it look like a matter of preference: you guys prefer the old way, we prefer to try a new way. But the old way isn’t written in stone, people can change it if they want. Women who want to fight shouldn’t be obstructed by some old bias that makes them out to be less than men, nor by some silly rule that enshrines men’s preferences and ignores women’s equal rights.

The goal conservatives take on is to make the case for customs, traditions, and “the old way” that isn’t based just on preference, but on something a lot more solid, substantive, determinative than that. Fortunately, such cases can be made. But there are two ways to approach that. One way is to defend the specific custom at issue, point out all the definite goods that attach to that custom, and argue the matter in piecemeal. This is good and necessary. Yet it cannot the whole effort, and it won’t be very successful without a separate kind of argument – the wholesale defense of custom in general.

Certain conservatives, like Richard Weaver, put it near the heart of their thesis that tradition isn’t merely one option up for consideration. It is, rather, an essential, core human good, and thus to damage it or destroy it is to damage humans and their fulfillment. Humans are social beings, always forming communities at many different levels. Because men are designed to be integrated, this aspect of their natures is not inherently at war with the rest of human nature – which implies that while there are necessarily tensions involved in settling individual needs and community needs together, there are forms of working out such tensions that can satisfy both when placed in their proper order. Humans are not monsters made to be frustrated in their very essences, but rather are beautiful, integrated wholes made to be fruitful in their entire range of capacities.

But “society” simply consists of a large group of persons who share many customs. It is impossible to be social without forming customs, and thus whenever many people work together for a considerable time they ALWAYS build up customs. (If you have ever participated in the start-up of a new community entity, you must have noticed how almost overnight new “traditions” spring forth that seem to rise with miracle grow.) Customs and traditions constitute mutually beneficial ways of handling the myriad things that need action or decision in a way that is (a) predictable, (b) understandable, (c) often successful (for the kind of situation), and (d) within non-offensive limits for those around you. These are all standards that need to be met by people living and doing side by side with each other. If you must, at every turn, sit and think out in great detail every time some speaks to you, such as “what does he mean by ‘how are you’, and what kind of answer should I give him, and what will he find offensive, and how many different ways can I handle those questions,” all the while knowing that ultimately the response is likely to be unpredictable, it would be IMPOSSIBLE to live in society. Custom is like the river that smooths over the rocks in its bed so that they can conform to each other and rest side by side with minimal friction.

(Custom is valuable not just as a preventive of evils, of social disturbances, it does more than that - it provides the positive field of play in which we can take enjoyment and delight in things that conform to custom, sometimes while touching its edges or shining a light on different possibilities. To take 2 simple examples: Words are conventions we have formed as to meanings of sounds. Word plays and double-entendres, however, are usages that make fun out of the conventional meanings while pointing out limits, the arbitrariness of convention, and alternative meanings. In other contexts, custom makes it possible to do acts of kindness and love that would otherwise be nearly impossible: when we receive a stranger into our home, and he conforms to our way of saying grace or eating a meal out of courtesy, he is showing a kindness to us that would be impossible if there were no such thing as custom. When in Rome…)

In a real sense, then, the “old way” of doing things is a bedrock essential of human life insofar as it is rooted in his social nature. And because of this double need – the human need both to have society, and that necessarily society hovers within a large complex of customs – people have a POSITIVE RIGHT to their customs. Customs are not merely nice to have, there are certain obligations we have toward them. Within some limits, and with some exceptions, we are actually obliged to order our lives by reference to custom, as well as by reference to other things, such as the exigencies of particular circumstances. For example, the good, worthy, noble and necessary custom of men and women remaining modestly attired does not defeat the exigency of a woman needing treatment by a male doctor and thus removing clothing for that situation – contra certain Muslims. Custom thus not being the only determining factor, it must be weighed and taken into account according an orderly understanding of the hierarchy of human goods. (Which leads to a major caveat I will explain further down the argument, please be patient.)

One of the things that motivates this posting, then, is finding that in certain respects we DON’T have an orderly understanding of the hierarchy of human goods and thus sometimes don’t take custom into account rightly, but worse yet we seem to have structured our laws and judicial system in such a way as to oppose such an orderly recognition about custom. What do I mean? I mean that neither law-making nor judicial rulings are expected (or even allowed) to use “but that’s how we have always done it” as presenting a rational claim on us. Such an argument is deemed empty. In judging cases, for example, when a law gets to the point of butting up against an old practice, the judge generally will consider the law itself, and he may consider the specific, detailed goods furnished by that custom (if the attorney presents them) but he never rules on those arguments by saying “custom rules because it’s how we have always done it”, at most he will rule in favor of custom because of the other special reasons advanced in its favor – and then only if the law is ambiguous.

Why is this a problem? Why shouldn’t we expect the judge to consider the law as more definitive? Well, there are 2 reasons (at least). First, because in addition to the 2 or 3 specific goods to which each custom is directly ordered, customs that have built up over time serve us in other ways: they are tied to dozens or hundreds of other customs, sometimes as mere accidental appendages but sometimes as foundations, supports, or otherwise significant co-operators on society. When you weaken one of these, then, you weaken dozens or hundreds of other customs. You damage wide swathes of society itself. And we won’t always be able to articulate the bulk of these connections. Sometimes we aren’t even aware of the most important ones – we are so used to them that we don’t even notice them as such, they are the background upon which we perceive other things. So the fact that we don’t think to propose them when the custom is attacked should not be taken to mean that we don’t actually have such connections that could be used to support the custom.

Secondly, more remotely: custom itself, generically, lends a weight to healthy progress in human life toward the good. Aristotle and St. Thomas show that human happiness can be expressed in terms of virtue – in terms of man choosing the right action for the right reason, habitually and with confident satisfaction in its suitability for human nature. But that “habitually” is important. While an athlete is still learning a new move, he must deliberate about it and choose it with effort, and during this training process he is not actually doing it with pleasure and with ease. But when he has practiced it a thousand times and it comes as second nature to him at the right moments, he does do the act with ease and satisfaction. The process of disciplining the body, subjecting it to difficult (and unpleasant) requirements, is not the final goal but a means. Likewise disciplining the mind and will with habitual action is ordered to a goal in which the good act is easy and pleasurable, not merely possible with strenuous effort.

And good customs feed into that process. Some customs are simply neutral in themselves, but others are positively noble, worthwhile, and beneficial. Customs are themselves habits of a certain sort, and thus prepare in us the groundwork for virtue, even the neutral ones help do that. Therefore, upsetting customs without adequately taking into account the way in which they set us up for virtue is to start us toward a path that may damage the possibility of achieving happiness. (This can be seen in cold, hard detail among people who have habits of vicious acts, such as overdrinking - and I am not specifically thinking of those with actual addictions. Their enjoyment of the vice makes them virtually closed to the sound, reasonable, and true arguments for how overdrinking damages their happiness: vice obstructs receptiveness to the truth.) People whose trained habits are those of moderation are instead well prepared to receive the truth, and embrace it more readily, and thus eventually become consciously and freely well-ordered in virtue: the truly free man.

As a consequence, changes that impinge on custom – even little changes and even about minor custom – have the power to erode general habituation toward the good. For this reason, St. Thomas says that when a lawmaker realizes that a new X law would be a better way of ordering the matter than the old rule, he is not free to make X the new law. Not yet. First he must ALSO take into account the way that changing the way people have been doing it may disturb a custom that lends them a generalized force of assistance toward habituation to virtue.

Sometimes, lawmakers DO actually take this into account, and decide to change the law anyway. For example, they may decide that the custom is actually a bad custom, because it enshrines morally bad acts, and thus does NOT incline us toward virtue, so they explicitly know that the law is going to upset the custom and their design of the law includes that outcome. (Abolition of slavery in England, for example.) In this case, obviously it is nonsensical for a judge to look at the law, and look at the opposing custom, and say “I am overturning the law because it upsets custom”. That would mean the judge is setting himself above the lawmaker, or even replacing the lawmaking function for his own prudential wisdom. I am not advocating anything like that. Not all customs are good, and society can indeed learn from its mistakes and correct them, at least some of the time. However, custom should not be changed by law accidentally, as Canon Law shows:

A later general law contrary to a general custom will nullify the latter, but a particular custom will not be abrogated by a general law, unless a clause to that effect be inserted. Even such a nullifying clause will not be sufficient for the abrogation of immemorial customs.

The opposite sort of case, though, does come about and we have seen that sort of thing happen. We have had a custom in place since before the founding of our nation, in which we do not intentionally and by design provide that women go into combat in war. Long, long after this practice had been in place for generations, we also prescribed it in law, making the law conform to the custom. However, in the midst of legislative inaction, in modifying an administrative policy so as to allow women to volunteer for combat positions, we have more or less accidentally set the stage in which a judge may DISCOVER that the 14th Amendment and the Selective Service laws could require drafting women into combat positions when we draft men. This is vastly different from lawmakers actually intending to overcome the custom because they judge it to be a bad custom, or even being willing to allow the custom to be damaged in order to serve a higher good. No, the lawmakers NEVER EVEN CONSIDERED that outcome when they passed the Selective Service law and the 14th Amendment, and never intended it positively or by permissively allowing for it. (Of course, Congress could re-visit the Selective Service law, but requiring that in order to allow custom to remain is in effect allowing legislative inertia to constitute a bias in the system for defeating custom by accidental intersections of happenstance. Which is the same thing as saying custom is negligible.) A similar outcome happened in the 9th Circuit under the decision for gay “marriage”: the judges discovered that laws passed over a hundred years ago managed (without anyone realizing it at the time, certainly not the legislators) to overturn a custom lasting more than 5,000 years. And now we are just discovering that the law must be held to destroy the custom, with nary even a consideration for whether custom itself harbors something as important as the law. This, a custom that impinges on not merely hundreds but thousands of other customary practices, and without exaggeration can be called a custom setting the very warp and woof of life together.

What I am saying, then, is that we have failed in our organization of legal and judicial roles, not to provide for the role of explicit protection of custom simply as such. Lawmakers feel like they can “stand up to” efforts to change things when they can point out really strong goods that the custom provides, in contrast to the lesser goods that a change would provide. They are hardly allowed to claim simply that the custom is an important custom and should remain in force. Judges are in a worse position, at least de facto, because of the legal positivism that has infected all of the schools of law: they don’t even admit to the existence of a body of moral and social force that exists apart from explicit law. Once they have ascertained what the law says, they have finished.

I don’t know what the exact solution is. Certainly in this present age I am not gung ho on offering judges vast new powers. (Though in the grand scheme of things, this particular ‘power’ would be one of preserving, so it is inherently limited by what already is.) And it is doubtful that any practical solution could be implemented, given our constipated and diseased political processes.

At least this much should be overtly recognized: law itself cannot possibly be the full and complete set of rules that bind us. This for at least 2 reasons. First, you cannot make laws about everything that we need rules for. Custom fills in a lot of the gaps. Secondly, LAWS THEMSELVES REQUIRE customs as a background or foundation. For instance, laws are stated in terms of specific words, but words are nothing more than conventions about meanings for arbitrary sounds. Also, laws always assume a number of things that are not stated in the laws, things that the laws are ABOUT because they are there before the law existed and whose nature is a given, not a prescribed legal arrangement. Laws about car emissions rest on the fact that certain kinds of pollution damage lungs: the law doesn’t PRESCRIBE or demand that the pollution have such effects. Likewise, laws about car usage assume that people have already certain habits in using cars. Much of the business of law is to regulate customary practice that pre-exists the law. Law is, therefore, a tool society employs for its purposes, but society is prior (logically and causally, not always temporally) to law and higher than law. Law exists for society’s good, not the other way around. And society is in part defined by the customs a body of people share. So law ought to be received as (at least to some extent) subject to custom.

You cannot make laws about all things, including the things that serve as the pre-foundation for law. In order to have the possibility to make law that isn’t simply the strong telling the weak “do what we say or we’ll beat you up”, some things have to be “givens” before the law is made. Some of those things that are givens are customs (others are natural law), and these must simply be received by the lawmaker as the framework upon which he builds other goods, not the object of his own work of lawmaking. Society is not an infinitely pliable fabric of infinitely moldable “units”, it has its own character before the lawmaker steps in to modify something. The only possible authority he could have to make a decision to change society’s basic underlying character would be authority that is in reality deeper and more authoritative than the society that erected him as lawmaker. The only two such sources of authority possible are divine law and natural law, both of which are prior to society. Therefore, no lawmaker could be free to revise basic customs of society without a clear determination that in this respect society actually is in opposition to either divine law or natural law. Yes, an Aztec ruler could have overturned the customs of human sacrifice. But no, American legislators are not free to decide to overturn the meaning of marriage.

Our American system is a little different from the British system. Here, our Constitution is a written document, there it is a body of custom. In our founding, we chose to set out an explicit form of Constitution, probably inevitably, because we were creating a new kind of entity, a union made voluntarily of formerly sovereign states. Although that document is understood to be the “fundamental law of the land”, what the founders meant by that phrase is “the fundamental WRITTEN law of the land”, not the sum total of what we are bound by - we should respect that there are additional facets of obligation separate from (and sometimes more obligatory than) explicit law, even that important body of law.

Comments (39)

Tony, I think that the kinds of problems you are seeing are a result of a wrong constitutional interpretive philosophy which gives judges too _much_ power rather than a result of not giving judges _enough_ power to overturn positive law that accidentally conflicts with custom.

Remember that the interpretation of the 14th amendment according to which it has anything to do with such issues as women in combat, women being drafted, or whether women must be allowed to attend VMI, or a zillion other things is itself, relatively speaking, an innovation of the latter half of the 20th century. It's quite simply false that the 14th amendment "has" those meanings or that anything, including Panetta's recent decision to send women into combat, _actually_ overturns the custom of women's not having to be drafted. Indeed, the fact that the customs you cite continued long after the passage of the 14th amendment, as did (for that matter) women's inability to vote, indicates that the "equal rights for women" interpretation of the 14th amendment is simply _wrong_. And something similar applies to homosexual "marriage." Judges are fake-interpreting old positive laws (namely, portions of the Constitution) to overturn long-standing customs, because they believe that the laws' meaning literally changes with changing social circumstances. This is a recipe for chaos and, inter alia, a recipe for the deliberate overturning of custom by judge-made fake-law, based only loosely in any sense on the text of the Constitution.

What we need is more judicial humility, not more judicial application of additional ideological or even moral considerations. A humble judge would recognize that the meaning of a text is not something he gets to create. He would also recognize that a long-standing custom which was treated by his predecessors as entirely compatible with the text of the constitution almost certainly indicates that that bit of the text did not, either by intent or "accidentally," overturn that custom, and therefore that he shouldn't interpret that part of the text to overturn it. These "accidental overturnings of custom" are a lot more likely to happen with "living constitutional" interpretation than with originalism, even though the latter is sometimes (inaccurately) called "positivism."

Notice that you don't seem to have any examples of this sort of accidental conflict solely and directly from legislature-made law, without bringing in the body of judge-made precedent that goes by the name of "constitutional law." This is rather important. Interestingly, judges tend to be a good deal more attentive to the legislative history and intent behind legislature-made law. And sometimes (often?) there is enough legislative history to tell us whether the law-makers actually intended deliberately to overturn some custom, whether they considered the goods of that custom, and so forth. Now, an emerging problem is that the great powers of judges are causing legislators to abdicate their responsibility, not to read or discuss adequately the laws they pass, and to leave them deliberately vague for the courts to fill in. This is an _extremely_ bad development. It would, I suppose, allow room for a judge to say that he was going to engage in a conservative interpretation of the law and assume that, absent legislative history to that effect, the legislature did _not_ intend to overturn a long-standing custom by their law. But that, again, would be a methodological approach that attempted to some extent to get at a meaning of the law lying with the legislature, outside the judge's own evaluation.

It is that belief in an objective meaning that is crucial and is, I believe, our best guard against the so-called "accidental" overturning of custom. Very often that is _not_ accidental but rather is a judge's own deliberately progressive use of the Constitution as a mere excuse to overturn custom.

A couple more small things: Leon Panetta himself probably did expressly consider that his decision to "allow" women in combat would, when taken together with judicial precedents regarding female and male equality and the 14th amendment, lead to the idea that women must be required to register for the draft. And he probably thought that was a good thing. Which leads us to the question of why a single person should have that much power. Answer: He shouldn't. He's not a lawmaker. But that's another part of our problem--Congress's turning over too much power to small numbers of unelected officials, which is arguably unconstitutional in itself.

Also, I would think that de facto legislatures would end up taking into account a kind of proxy for the evils inherent in changing customs. That proxy would be "administrative costs." Requiring people to tear up roads or change their habits or whatever and enforcing such a law has a certain cost to the state, and that cost is to no small extent going to be a reflection of the extent to which the law is overturning an embedded custom. I suppose that may seem a sorry substitute for a lawmaker's having the gumption to stand up and argue in the congressional chamber for the good of custom in itself. By the way, there is nothing _stopping_ a congressman from doing so. Congressmen (both state and federal) say so many tom-fool things in their deliberations that this would be positively sensible by comparison, so by all means, if you know a Congressman, encourage him to do this. But even within the unspoken conventions of legislative deliberation, administrative costs are, I think, going to track the difficulty of forcing a change of long-standing custom.

In the midst of grading so I can't say much, but I highly recommend R. V. Young's At War with the World as a study of how we have gotten to the place where interpretation means something so vastly different from how we used to use it. His final (or perhaps penultimate; the book is at the office) chapter directly addresses how deconstruction -- even in the absence of its explicit teaching -- has come to rule the academy and thus the way judges interpret the Constitution. An excellent study of language, literature, and interpretation overall.

Sorry, that's At War with the Word -- can't proofread on the computer screen!

Lydia, I can agree with your analysis of the women in combat. But I don't agree that fully answers for the gay "marriage" issue. Yes, there are very grave errors in the way they interpret the constitution's own words, but in addition they also fail to respect the role of custom in their approach to law.

Also, I would think that de facto legislatures would end up taking into account a kind of proxy for the evils inherent in changing customs. That proxy would be "administrative costs." Requiring people to tear up roads or change their habits or whatever and enforcing such a law has a certain cost to the state, and that cost is to no small extent going to be a reflection of the extent to which the law is overturning an embedded custom....But even within the unspoken conventions of legislative deliberation, administrative costs are, I think, going to track the difficulty of forcing a change of long-standing custom.

I'm sorry, but I don't see how that could be right. "Administrative costs" are going to track with the particular, individual difficulties of the law or of the custom, the particularities of specific people running afoul of the specific new rule. They are not going to track with the general matter of upsetting custom itself, which I think is an inherently non-quantifiable impact, and will be (in the long run) found not only in the specific changes in practice from this one change in law, and not even in the myriad other customs that are indirectly affected, but as well by diminution of people's respect for law, for order, and for tradition.

But that's another part of our problem--Congress's turning over too much power to small numbers of unelected officials, which is arguably unconstitutional in itself.

Yeah. It probably comes from the fact that there are so many laws and the pace of available changes is so vast that even the legislature cannot manage all of it, they have to get help from un-elected bureaucrats to manage it all. Which definitely points to a major problem, doesn't it: the more laws there are, the more complicated the system, the less a non-expert can understand it, and the more we need "experts" to go on fine tuning it beyond a human scale of rule-making. I have seen bits of law passed that have taken the top experts in the country 6 years to figure out how they can be applied in practice, and they seem to have ended up with 3 different answers, no one of which had a majority consensus, only a plurality of consent.

Yes, there are very grave errors in the way they interpret the constitution's own words, but in addition they also fail to respect the role of custom in their approach to law.

But if they interpreted the Constitution correctly, the whole issue would be moot. It's utterly _ludicrous_ to say that the Constitution requires homosexual "marriage." For that matter, I don't see that the feminist "interpretations" of the Constitution are any more egregious than the pro-gay "interpretations." They're both utterly absurd. The judges who did it were telling falsehoods about positive law to advance an activist agenda.

The thing is, your post gives a picture of a judge whose hands are tied when some law somehow really does accidentally overturn a custom. This poor conscientious judge is forced by "legal positivism" simply to tell us the truth about this law. Your implication is that the judge's hands are tied because he is bound only to interpret the positive law, and that there is an objective fact of the matter to the effect that the law actually accidentally overturns the custom. But in all the examples you give of "accidental" conflict between law and custom, this hasn't happened at all. Instead, the judges have wildly and more or less deliberately misinterpreted the Constitution as positive law in order to advance an agenda. And no judge is forced into that by having too little power to "take tradition into account." In fact, the judges who do these things are not telling the truth about what the law does and says. They're lying. I think most of the time they are lying knowingly, too.

Remember, too, that if a legislature actually passes a homosexual "marriage" law, this is a case of a legislature _knowingly_ overturning custom. It's an activist, progressive legislature. It isn't an accident but deliberate. And you yourself say of such a case,

In this case, obviously it is nonsensical for a judge to look at the law, and look at the opposing custom, and say “I am overturning the law because it upsets custom”. That would mean the judge is setting himself above the lawmaker, or even replacing the lawmaking function for his own prudential wisdom. I am not advocating anything like that.

Now, you and I both agree that if the legislature did this concerning redefining marriage, the legislature would be very badly wrong. But it would not be a case of their accidentally overturning custom.

Remember that customs which have survived the Constitution's own words by more than a century are relevant to interpretation. It's enormously unlikely that the writers of some bit of the Constitution intended it, or that its original audience would have understood it, to overturn some custom which then went on and on for umpteen years thereafter. So custom is important in one's approach to law in a purely epistemic sense.

In cases where it really does appear that some recent positive law has accidentally collided with a long-standing tradition, the lawmakers simply having overlooked that possibility, it would be possible to instantiate a judge's prerogative to ask the legislature which passed the law for a clarification. "This appears to overturn this custom, but that is a rather radical result which it appears, based on legislative history, you may not have intended. Please clarify as to whether that is the intent of the law." I don't know what all the implications of such a procedure would be or whether it has ever been done, but it has a couple of desirable features: 1) It keeps clearly separate the role of interpreter and lawmaker, being a request from the interpreter as to the intent of the lawmakers. 2) It forces the legislature to take seriously its own role as lawmaker and not to write vague or poorly-thought-out laws with the intent to let the judges fill in the details.

But in all the examples you give of "accidental" conflict between law and custom, this hasn't happened at all.

Supposing that they were hell-bent to dream up their highly fictitious notion of a conflict that didn't really exist. It would still be the case that, had the legal/judicial profession recognized appropriate role of custom in dealing with law, such highly fictitious notions would STILL be out of bounds. I am not disagreeing with your point that many of the judicial decisions were bad from yet another standpoint, that of correct reading of law. And I am not disagreeing with your point that sometimes the legislature intentionally attempts to overturn custom, so it wouldn't be an accidental overturning. In fact, I said that myself. In saying

That would mean the judge is setting himself above the lawmaker, or even replacing the lawmaking function for his own prudential wisdom. I am not advocating anything like that.

I was pointing out that it is unnecessary to advocate expanding judicial role in that fashion to realize custom needs protecting. I was not advocating that particular expansion, but I was not advocating doing nothing about it either.

Now, you and I both agree that if the legislature did this concerning redefining marriage, the legislature would be very badly wrong. But it would not be a case of their accidentally overturning custom.

Right, because (as I said) this disrespect of custom is a problem that we see in BOTH the judiciary and the legislature, it's not just one of them. Legislative bodies don't have the rightful authority to abrogate custom when that custom is good and worthy, and it is part of the very basic structure of society. (Especially when that custom is dictated by natural law, of course, but even when it is not.)

it would be possible to instantiate a judge's prerogative to ask the legislature which passed the law for a clarification...I don't know what all the implications of such a procedure would be or whether it has ever been done, but it has a couple of desirable features: 1) It keeps clearly separate the role of interpreter and lawmaker, being a request from the interpreter as to the intent of the lawmakers. 2) It forces the legislature to take seriously its own role as lawmaker and not to write vague or poorly-thought-out laws with the intent to let the judges fill in the details.

I thought of exactly that idea, but I don't know how well that would work, and so I just limited myself to saying "I don't have a solution." However, I believe this is in fact a process that has been tried in some system, at least to a degree. Perhaps Italy, I don't recall. I deal with regulators and bureaucrats all the time, and I have seen them regularly run up against trying to "interpret" a law into specifics and simply not be confident how Congress wanted it to go. They would have loved to have the right to simply go back to Congress and say "what did you mean, X or Y?" but there are problems with that: It takes enormous amounts of energy and coordination getting Congress as a whole to focus on a specific matter. Once they have passed a law about it, they are unlikely to re-visit the matter for anything less than earthshaking importance. Also, the composition of Congress changes over time, and if you were to "go back" to Congress to get the input of, say, a select committee, you have no confidence that the "intent" of the Congress who passed the law to begin with will be the same (or even similar) to the Congress who sits there now, and laws will become so fluid and uncertain as to be useless. It is very difficult, in practice, to nail down with any kind of certainty the "intent" of a large corporate body like Congress when it is not explicitly written in the law. For one thing, some Congressmen might vote for the bill only as a trade for some other bill, and so his only "intent" was what is actually in the law and nothing further.

But I have this to say for the process you outline: it would create a presumptive force FOR custom, instead of the other way around. If Congress doesn't work hard enough to explain either that they actually wanted to overturn the custom, then the law shouldn't be given that force.

Legislative bodies don't have the rightful authority to abrogate custom when that custom is good and worthy, and it is part of the very basic structure of society.

Yes and no. I think we can say that in the eyes of God, they don't have that rightful authority, and if they abuse their power they may well be called to account before a Higher Tribunal.

But I think it's right that in our legal system, the judiciary has the power to overturn a law only if it is unconstitutional. Hence, of course, all the lying that goes on by the left to claim something is unconstitutional when what they really mean is, "I think it's unjust, and anything that I think is unjust is ipso facto unconstitutional, because the Constitution means whatever it really should mean." But it's better for the judiciary to have its power to overturn laws granted _by_ a body of law, namely by the Constitution, and to arise only when the lower-level law conflicts, or allegedly conflicts, with that higher body of written law which the judiciary is supposed to interpret and apply. To grant power to overturn laws on some completely other basis is to open a can of worms I don't think we want to open.

What this means is that in practice the legislature does have the de facto authority to abrogate even good and worthy customs. Whether we citizens should obey them or not insofar as their laws impinge upon our actions depends entirely on what the law in question is and whether we would be doing wrong by obeying it. For example, there might be a good and worthy custom that the people are allowed to fish in a particular river, and the legislature might be doing something mean and unwise to ban fishing on that river, where no harm was being done by the fishing whatsoever, but IMO you should still obey the law and stop fishing there. Telling you that you have to acknowledge two men as "married" is an entirely different matter.

I might be open to an argument that certain tacit assumptions are in the Constitution where, for example, two laws expressly conflict so that the citizen literally cannot help breaking one or where some law is literally impossible to comply with--a law that everyone has to pay a fine for not jumping over the moon or something. I'm sure there's some Latin phrase out there for "if you are required to do x it must be possible for you to do x," which the Founders would have approved. Nor is this entirely hypothetical. I believe some companies were being fined a year or two ago for not including some fuel product in their gasoline when the fuel product literally didn't exist.

But I think it's right that in our legal system, the judiciary has the power to overturn a law only if it is unconstitutional.

Well, that's actually an interesting matter under constitutional studies. Many legalists admit that the principle of judicial overturning of law, as brought out by Marbury vs Madison, was quite controversial and by no means automatic. In other words, there is room to legitimately argue other results, such as that judges DON'T have even that much authority. Or, alternatively, that judges DO have authority to overturn laws even when they seem consistent with the Constitution, if they abrogate something more fundamental.

Sts. Peter and John say that it is better to obey God than man (if there is a conflict). Natural law principles say that if a human law opposes a natural law, then the human law is not real law, it lacks authority, and thus you are not obliged to obey it. Thus we could have had judges saying that "yes, the Constitution allows slavery, but it also violates natural law, and so we will give no force to laws requiring the return of escaped slaves."

The exact nature of of the limits of judicial authority are not actually explicit in the Constitution, (based, ha hahaha) on a great deal of English custom about the judiciary, and we might have come out with a different approach than saying judges can overturn laws that oppose the Constitution but they cannot overturn laws otherwise.

What this means is that in practice the legislature does have the de facto authority to abrogate even good and worthy customs. Whether we citizens should obey them or not insofar as their laws impinge upon our actions depends entirely on what the law in question is and whether we would be doing wrong by obeying it.

There is a very difficult ambiguity in the expressions about the "authority" of a lawmaker to make a bad law, and it requires a lot of patience to sort through. I would like to cover only a bit. On the one hand, if the lawmaker tries to make a law that ostensibly obliges you to do something contrary to divine law or natural law even on its face (such as killing innocent men, or worshiping idols), the so-called "law" is an apparent law but it is not a true law, it has no binding force. (It may be prudent to appear as if you obey the law, if you can manage it, but that's another matter.) If a lawmaker writes a new law that is simply a matter that is outside of his scope of authority, such as telling me what color to decorate my bedroom in, it is again no law, even though it does not violate natural law directly. Well, some matters are beyond the scope of a lawmaker's reach because they are too low to arise to a matter of common good, but others can be beyond his scope because they are too high. Having a king decide to abrogate a 500 year custom about how the next ruler is to be found so he can wriggle his illegitimate son into the spot is not just "bad" law, it may be a matter that lies beyond his reach. Such a thing is much like your "tacit assumptions" about the Constitution, or would be perhaps an unwritten component of the constitution. What I would suggest is that, like the British, ALL systems have unwritten constitutive rules, made up in part by custom, and added to these SOME system have written constitutions as well. Taking the whole constitutional basis together, judges are required to rule in protection of not only the written constitution but also the unwritten part.

Lydia,
What you call "advance an agenda" may be put more neutrally as "realize his vision". And this is inevitable as all men act to realize their visions or in other words, they act according to their lights.

For instance, if a judge believes in equality, male-female or black-white or gay-straight, he would naturally interpret a previous law according to his beliefs. How can he be expected to interpret contrary to his beliefs, I don't know.

Isn't it curious that the Originalists are found on the Right only? Because the originalist shares in the 18C moral vision, and that's why he could be an originalist without discomfort.

But as Lawrence Auster recently wrote "Americans, particularly conservatives, tend to be fanatically legalistic in their thinking and fail to see substantive reality". The originalist clamor about State sovereignty is an example. The states were sovereign when people put their State first and America second. But now, how could they ever be sovereign when people lack the necessary emotion and regard themselves as being Americans first.

That is to say that you can not have revolutions in the moral sense of the people that leave untouched the constitutional interpretation.
Malice need not be imputed to the progressive judges

For, a revolution means that what was Bad before is now Good and vice-versa-a 180 degree revolution. And the judges do judge to the Good, they are not machines but only men. Then how could not the interpretation shift?

Homosexual marriage was not created by the judges but people. Quite ordinary people in fact, contrary to Esolen. Activists tended to be against it.

That it was felt needed to affirm marriage as between a man and a woman is proof that homosexual marriage existed, even in 90's.

Tony, if I went in any direction, I would go in the direction of saying Marbury was a bad result because it gave the judiciary too much power. But actually there is _no_ legal basis whatsoever for saying that a judge, per se, qua judge, can "overturn" a law merely because he deems it unjust and contrary to the natural law. Judicial power is granted to the judges by the system of our country. Judges are not rulers simply, and frankly, to say that a judge has power to overturn a law because it is a bad law (e.g., contrary to the natural law) *just is* to make a judge a ruler simply, in his own right, rather than having prescribed powers granted to him. As far as I'm concerned, our country never had that built into its system in terms of striking down laws. The closest we've ever come to it is in an area such as family law, where judges do have very wide latitude, and AFAIK always have had, to rule directly according to the judge's own ideas of what is good and bad, right and wrong, for the children. That hasn't turned out very well in a great many cases, though of course a wise judge might do it well.

Gian, as usual, you don't know your history. In the United States, homosexual "marriage" was indeed first imposed by the judiciary--the state judiciary, in fact. The liberals used their favorite branch of govt. to jump-start their social revolution. Since then some legislatures have also supported it but not at first.

Tony, I would add that, if judges had the authority simply to say, "That's against the natural law, so I declare it to be null and void," this could be done regardless of whether the conflict with tradition were intentional or not. Yet you explicitly stated that that would be a bad idea.

In any event, it would certainly require a constitutional amendment. The power of the federal judiciary is granted to hear cases _under_ the constitution, not under the whole of the natural law.

That it was felt needed to affirm marriage as between a man and a woman is proof that homosexual marriage existed, even in 90's.

Gian, why are you trying to obfuscate? Why are you trying to muddle things that are not themselves difficult or confused?

In the 90's, there was pressure toward various practices that would end up in a situation where gay "marriages" took place, people could see the direction of that pressure, and passed DOMA to fend it off. There was, in the 90's, no state that provided by law to allow 2 men to be married to each other.

If instead you mean that in the 90's men were behaving as if they were married, well, to describe that condition as "marriage existed" is simply to equivocate. If you can't be bothered to speak honest truth, then you needn't bother to speak up at all.

But actually there is _no_ legal basis whatsoever for saying that a judge, per se, qua judge, can "overturn" a law merely because he deems it unjust and contrary to the natural law.

Well, I was about to say that a law being "unjust" isn't the criteria I was talking about, there are laws that - being dumb - cause unjust results, and what I have been talking about wouldn't present a basis for anyone saying "that's no law." Poorly designed, ineffective laws may be totally binding, obligatory law, in fact they usually are. However, then I recalled that in this country we have some courts of law simply, and other courts of law and equity. In a court of law and equity, a judge CAN actually decide to set aside a law in a specific case because the result is inequitable. They typically don't set precedent with these decisions, so such opinions don't overturn the whole law itself, but we do sometimes set aside law on the basis of inequitable results.

But that's not really my main point. There is a difference between saying that a law is not wise, is not helpful, will get us into more trouble than it solves, and saying it actually opposes natural law. Laws that are dumb laws but are not in opposition to natural law remain real, valid, binding law. The kind of situation (well, one sort of situation) I was talking about was with a law that is actually in direct opposition to natural law. In that situation, we already know that the law is not valid, binding law, because no human law can be law while being in opposition to the foundational source of human law.

My question is, in what way do we as a society deal with such a situation. In a less hierarchical system, you might simply have people just plain disobey the law, and keep on disobeying the law until the bad legislators got the message and changed the law. Might take a long time though, see Roman Emperors, for example. And you get a lot of bickering about which laws are merely poor and which are actually invalid. In old British law, with the constitution unwritten, a British judge had some room to say "such a law is no law" because it violates X, Y, and Z which are more basic than that law is. He didn't have to account for X, Y, and Z in any grand scheme of hierarchical values carefully laid out - that's the nature of an unwritten constitution. And X, Y, and Z might have been natural law, or it might have been immemorial custom which was taken to be more basic than the law.

There might be other mechanisms to deal with such a defective "law" than with judges. You could, for example, mandate a "proto-constitutional convention" every 20 years to re-affirm the people's rights to set the basic tenor of the order. But that seems pretty clumsy. Or, you could have a "super-legislator" whose sole job is not to write law, but to UNWRITE laws that were wrongfully written because they harbor one of those killing defects, like the legislature tried to take on an area outside their authority. Or you could provide that a majority of states acting together can "unwrite" a federal law that exceeds the powers granted to the federal government. It doesn't have to be judges.

I am not insisting that in our system judges clearly DO have the constitutionally provided power to overturn a law when it violates deeper customs. I am saying, rather, that a good governmental system needs mechanisms for adequate protection of custom. And, given that, it would be possible for that mechanism to involve judges. Further, the exact nature of judicial authority is actually implicit rather than explicit under this Constitution, and since all written constitutional orders must perforce rely on more basic custom to set the context and meaning of the written constitution, to a certain extent those foundational customs ARE ACTUALLY part of the constitution. Which means there is conceivable room for judges who rule on the validity of law in protection of the constitution to rule in protection of the unwritten parts thereof. That is to say, one way to understand our constitutional order is to read that power into the existing roles, though it is by no means the only possible reading.

This has a parallel to the constitutional interpretation of the legislative scope of authority. The Congress was given the power to make laws for a specified list of purposes. Very quickly, within the first couple of administrations, there arose an interpretative standard that said that this grant of authority included within itself the authority to write laws that are needful to make laws on the listed items effective. That is, the second is implicit in the first.

Consider a hypothetical. Suppose in 10 years 40 states pass a "gay marriage" amendment that says all states shall allow gays to marry. If a judge's role under the constitutional order is definitively limited to the constraints of the written Constitution and no further, then no judge would be able to say anything like "this violates natural law and I will never follow such a rule". He would be obliged to rule in favor of gay "marriages" in all cases, (thus forcing it on a state that has rejected it), he would be WRONG as a matter of due authority to attempt (admittedly with little likelihood of long-range success) to simply repudiate the Amendment in its effects. Or he would have to step down from the bench - but this means that EVERY SINGLE judge who believes in Christian truth would have to step down. I don't think that this is the only possible conclusion of what a judge's role is in our system. I think that because the Constitution itself is relatively silent as to the COMPOSITION OF "The judicial Power", it is rooted very heavily in prior British system which provided the context of the phrase "the judicial power" in Article 3, and so we have legitimate room for considering the judge to have authority to reflect the unwritten rules of the system as well.

Judges are not rulers simply, and frankly, to say that a judge has power to overturn a law because it is a bad law (e.g., contrary to the natural law) *just is* to make a judge a ruler simply, in his own right, rather than having prescribed powers granted to him.

All 3 branches of the government "rule over" us, each in different spheres. That's the nature of government.

Going back to Article 3: it states that the "judicial power" is invested in the judiciary, but it DOES ABSOLUTELY NOTHING to actually specify what "judicial power" consists in. Given that silence, it is impossible to not consider it referring to the judicial power that existed in the British system, more or less. Actually, it does do one thing, by implication: it says that the judiciary has the power with respect to both law and equity. (Some systems only allow judges to hear cases on law alone.) That is, the article is expansive on the judicial authority, and nowhere is it constrictive except that it allows Congress to legislate limits on the judiciary's scope in certain areas. There is nothing in the written words to think that federal judges in the US have less general authority than British judges did.

Tony,
Isn't marriage a pre-State social phenomenon?
that is merely recognized by the State?
So what is equivocation in saying that in 90's gays were marrying (that is the social reality they were living, according to the 20C notion of what marriage is, entirely rooted in romantic love).

There is, I believe, a lot of evidence that the gay marriage was opposed by intellectuals. I think this opposition has contributed to the non-acceptance of gay marriage in France where leading gay intellectuals have come up against it.

That the gay marriage did not exist because the law had not been passed is again an instance of hyper-legalism that Auster has remarked upon. And directly undercuts your own point that marriage is a pre-political institution.

Lydia,
The liberals used their favorite branch of govt. to jump-start their social revolution.
No, the social revolution was well underway when judiciary got involved. In fact, the social revolution was complete for to have such a thing proposed in a Court is already revolutionary.

The failure to see substantive reality lies behind many conservative defeats. They will allow you four staunch votes in Supreme Court so to enable you to lose 4-5 each time. They will not seize any guns but they will not need to. For your legalism will work for them and you shall obey all law passed 5-4.

Tony, as far as our current system, I'm afraid we'll have to agree to disagree. Article III expressly vests the judicial power as extending to cases arising under a specified list of types of laws--the Constitution, federal law, and treaties. It simply does not vest in the federal judiciary the power to hear cases arising under the natural law simply and solely as such. And as I said, if it were so, and if they could strike down a law under our present system simply in virtue of its conflicting with the natural law, then this would be true even where the conflict with custom was deliberate and not accidental. But you said you didn't advocate that.

By the way: My prediction: You don't even have to think about a constitutional amendment enshrining homosexual "marriage." It will never happen. It's much, much easier for the leftists to get their will imposed by the top down by the judicial branch. Unfortunately, they'll probably succeed in this eventually. But they stopped seriously trying to pass constitutional amendments quite some time ago. For example, virtually every goal of the Equal Rights Amendment has been gradually enshrined in court precedent since its failure to be passed as an actual amendment. They just don't need any of that old democracy stuff. The Living Constitution does it all for them. At that point, the spine that good judges and justices will have to have is merely to resist bad, lying precedent, not actual constitutional text.

And here's a real irony: Bork was Borked in part by Joe Biden who claimed that one of his beefs with Bork was that Bork didn't believe in imposing natural law per se through the courts. Of course we all know what Biden actually meant by "natural law." And we know that the originalist Bork would have done a great deal of good for the cause of _actual_ natural law simply in virtue of interpretive humility. What the justices Biden approves of want to do in tearing down real natural law pretty much goes without saying.

Gian, you are a pompous windbag and have no idea what you are talking about. No, the social revolution wasn't "already complete." The whole reason why_ homosexual "marriage" in those states (and before that, civil unions in some places) had to be forced on the people and even forced on the executive branch by the small oligarchy of the courts was to *advance* the social revolution, because what the avant garde wanted wouldn't be voted into place otherwise.

As for conservatives obeying anything passed by a 5-4 vote, I have actually talked quite a bit about creative ways in which both the states and the other branches can _refuse_ to do so.

Lydia,
That you would say "forced on the people" merely indicates your alienation from America 2.0 (to use the Austerite term). They don't feel being forced upon since they created this reality.
When two men live together as married and the wider society around them recognizes their union, they are united as per their society's definition.

And what of "forced upon people". What of it? America 1.0 will be forced to stomach a lot more. And "other branches"-- well you are 4-5 everywhere. Only they will not touch your guns and 4 votes there.

Article III expressly vests the judicial power as extending to cases arising under a specified list of types of laws--the Constitution, federal law, and treaties. It simply does not vest in the federal judiciary the power to hear cases arising under the natural law simply and solely as such.

And where, in the constitution, does it define "judicial power" so that we know what sort of actions judicial power can DO on those "cases"? Nowhere. Judicial power is an undefined term in the document.

Without knowing what the historical context of "judicial power" referred to, the sentence is obscure and ambiguous. When you pull in the known, background context of "judicial power" one can hardly find in the sentence an intent to limit the power of the judicial authority to a narrower scope than that of the British judiciary: every clause ADDS scope: ALL cases, law AND equity, federal law AND treaties AND state disputes AND disputes with foreign states. If the clause "under the constitution" is defining a limit or narrowing the scope of all the other categories, it does so very strangely: first of all, coming in the middle, of the list after "Law and Equity" and then before the others; secondly, it is not clear what it would mean to narrow the scope of its jurisdiction to "under this Constitution" in a dispute between a state and a foreign entity (given that the foreign entity is not "under this Constitution" anyway), or between 2 states where the dispute is SPECIFICALLY NOT a matter covered by the Constitution. I don't think for the phrase "under the Constitution" the most natural reading is that it constitutes a cage around jurisdiction for all the other categories listed both before and after it. I think the most natural reading of the sentence is that the scope is expansive, because they wanted an authority available to judge on the things that had not yet been envisioned and they were not prepared to cover explicitly in the Constitution, like the future disputes between the different states, and that "under the Constitution" adds scope to the powers, rather than defining limits on the other categories in the list.

Later on the Article allows Congress to limit the scope of appellate jurisdiction by law. That's the only place where it is clear that the Article was creating a limitation on the judicial power.

Tony, Isn't marriage a pre-State social phenomenon? that is merely recognized by the State?...That the gay marriage did not exist because the law had not been passed is again an instance of hyper-legalism that Auster has remarked upon. And directly undercuts your own point that marriage is a pre-political institution.

Gian, stop telling falsehoods by omitting the REST of what we have said that puts your foolish claim to rest.

Marriage isn't a creation of the state. Nor is it a creation of human social ingenuity, either. It is God-given, Divine law. Gay "marriage" never was and never will be marriage because it is against God's dispensation for mankind. Before states passed laws allowing gays to "marry", gays might have lived together something remotely akin to the way a married man and woman live together, but that wasn't marriage in the ontological sense, just as 2 heterosexuals shacking up isn't marriage in the ontological sense. And calling it marriage merely because they are using each other for sexual gratification is a putrid and revolting misuse of words. Stop sullying this web site with your gutter nonsense.

Marriage is between a man and a woman. Like gravity, it's not just a good idea, it's the law. It's a good idea to have human law compatible with that Divine and and natural law, because if you make human law in defiance of the higher laws like that of gravity, you're likely to end up going splat.

Tony, I would read those other clauses not as indicating that the federal judiciary will have to bring in other types of law than the ones named, much less an entirely unwritten law, but merely as listing those that are automatically under their jurisdiction. (Hence the fact that liberals have often brought suits directly against federal officers, to bring the thing immediately into the realm of SCOTUS.) I would assume that between the U.S. and a foreign nation, the relevant body of law would be a treaty. Otherwise, there would be nothing to go on. Between states, yes, it would be the Constitution, and if the Constitution had nothing to do with it, neither entity (state) would have a case. The case in a suit would need to be made on the basis of an alleged violation of some citable body of law. The Natural Law, in itself, is not citable, and it is difficult to see how a claim in a suit could be brought on that basis simply as such.

All of this, of course, is why so often the creative innovations of the left have been made by means of the *claim* that they are somehow contained within the Living Constitution. Someone like Biden may find it convenient to try to get people who like natural law on his side by citing that type of concept, but in the end, they know that they are going to have to say that what they want (a right to an abortion, homosexual "marriage," or whatever) is mysteriously contained in the Constitution itself, if only in its auras and penumbras, not read off of some unwritten body of law. The combination of their desire to push beyond what the Constitution actually says and their legal realization that a judge in America can't just strike down a law citing only his own idea of what he calls the natural law has led to their telling egregious lies about the Constitution and what is contained therein.

There is really quite an important distinction between common law, which is judge-made law, and written law. The common law approach to the Constitution, which is really a matter of judges' _adding_ to "the Constitution" by their precedents, has been nothing but destructive. I really think conservatives should not endorse it.

Well, it is clear that we will simply disagree.

But all of that was more or less an aside: my central thesis remains that a society needs to have ways to protect its customs from erosion, and in particular ways to protect it from both lawmaking and judging that would disrupt it without due reason. (I wasn't proposing that the only way to do that is with judges citing custom, I only pointed to judges as as one possible mechanism.)

In point of fact, one of the causes of erosion may not be susceptible to remedy by correcting the legal framework. If people themselves won't bother to stand by custom, then they can wash it out even when no laws come along to damage it. I have seen this in family and local community affairs. My extended family used to have an annual picnic. When we were young, almost everyone would come almost every year. Used to be that as people grew up and moved away, they would come less often, but they would still come regularly, so that you could count on more than half showing up each year, and over time you would still see nearly everyone. Locals would usually set that day aside on their calendars: they had a basic commitment to go, which would be changed only if something important came along. However, over the last 10 years, people have taken to not coming for no particularly good reason, just "oh, I didn't feel like going to a picnic". The tradition is nearly dead. Each person's choice to ignore it is a free choice, but the net effect is that for those who want a FAMILY gathering, they cannot maintain the custom without a certain level of commitment from the others: customs will fail due to entropy, they take effort and energy to maintain. If someone wants to hop, skip and jump around and fit himself into the custom only when and as he feels like it, he will soon find that the custom ceases to exist and he WON'T be able to enjoy it when he feels like it. He won't be able to say "gee, I would love to see people at the family picnic this year" after the picnics ceased to happen for lack of turnout.

Not that a case like this calls for any sort of legal remedy, it doesn't of course. I'm just illustrating that custom doesn't maintain itself. For something a bit higher up the hierarchy, where it pertains more nearly to the general common good, our obligations to work with custom and participate in it become more significant. Many people have a notion that because a custom is not enshrined in positive law they have perfect freedom to ignore it at their pleasure, but that's simply not true. For example, custom dictates such things as modest skirt length, and choosing to ignore that custom would result in immodest attire, i.e. wrong behavior. (But not illegal behavior - not all things that society censures are censured by law.) Just as we have an obligation to abide by custom in its dictates on modest clothing, out of respect for the moral needs of others, so also generally custom has a claim on us to respect it for the good of the community. Each individual custom has only a limited claim, which can be superceded by other needs (including, at times, personal needs), but the general nature of the claim runs through all of them: they are particularizing instantiations of common goods.

One way that I think the positive law, ideally at the local level but also at the state level, could support customs or at least not undermine them would be to allow much greater latitude than we presently have for refusal to serve customers and refusal to sell or rent property. Customs regarding clothing, for example, could be respected in the form of social taboos, which could inter alia take the form of a refusal to serve a particular customer. I fully acknowledge that a Muslim neighborhood could turn this into a de facto requirement for women to wear the hijab if they wanted to be served at local businesses, but that *by itself* would be a price I might be willing to pay, so long as it didn't come along with functional permission to threaten and/or assault the women not wearing the hijab. Which, in Muslim enclaves, is often exactly what happens. I've read of neighborhoods in Sweden, I believe it was, where non-Muslim women go around dressed in the hijab for fear of what might happen to them otherwise, and it wasn't just for fear of not being served at a lunch counter! Of course, the separate question then is why we have so many Muslim immigrants as to have such enclaves, but that's a separable issue.

We have greatly eroded a huge number of custom-supporting practices by non-discrimination law. Functionally speaking, overturning most or all non-discrimination laws would restore to a great many people the ability to support custom. For example, renters could refuse to rent to two men who were an openly homosexual couple or could refuse to rent to an unmarried man and his girlfriend, thus contributing to the reinstatement of traditional sexual mores and customs. The way the laws are now, anyone who wants to buy a second house in the town and rent it out (which is something many rather ordinary people might want to do) has to worry that he will, as a property owner renting to particular people, become part of the "machine" continually eroding sexual normalcy and morality in his community.

The restoration of religious freedom to teachers in public schools could also be custom-supporting. Think of all the schools in the Bible belt where they might start the school day with prayer if it weren't for the (I would say, wrongly decided) SCOTUS decisions banning this. Local communities would have much more freedom to enshrine various customs in their local public schools without the ACLU suing them every time they sang a Christian Christmas carol or (as happened recently) took the school children to see a stage performance of _A Charlie Brown Christmas_ (which contains [gasp!] Scripture).

Now, I know that all these things are more or less pipe dreams. But I'm afraid that the way things are right now, so much positive law is functionally or deliberately anti-custom, and more is coming down the pike, that it's only going to be by rolling back some of these things that we can restore even private people's ability to uphold beneficial customs to any great extent in this country.

Another good custom would be to sue the ACLU for every possible enactment that harms us, just for good measure.

But I'm afraid that the way things are right now, so much positive law is functionally or deliberately anti-custom,

Right, because (among other things) organizationally we are not structured to treat custom as a good in its own right.

I think you might find (this is a conjecture) that at the local level there used to be a lot more laws, yes, even actual laws, that structured the community to treat custom as a good in its own right. For that matter, many zoning laws are leftovers of those days. The zoning of a portion of the town in order to perpetuate its status as, say, a residential district, is in itself a custom-perpetuating rule. But those are vestiges. I'm betting that many little, "silly" laws, or laws that would seem to us silly, were exactly the sorts of organizational supports for custom that you are looking for. They have either been swept away by inertia or tossed out because they conflicted with some higher-level (e.g., state or federal) law that sought to standardize everything and make sure every person, place, and thing was treated according to a highly abstract standard of "equality" or even, e.g., "environmental care" which was non-customary.

Tony,
I thought that the term gay marriage was an acceptable term but if you don't like it, you could suggest something else.

But the reality remains that half of the country does not feel to be imposed upon by the judges. Whatever this thing is, it had come up from ordinary people. A new custom in fact.

It has been said that the modern left is not Communist but radical individualist, out to attack the last barrier to atomized individual, the family.

And yet, we would be justified in uprooting this custom by force, if necessary. But the conservative mind is confused by a tyranny that is not imposed but welcomed by half of the country (and 100% of America 2.0). For Communism is the standard of tyranny for a conservative and he apparently can not conceive that in America the tyranny can emerge by public demand.

The point of civil disobedience is not when the rulers are asking you to do something immoral but when the rulers themselves are being immoral. Otherwise, what immorality George III was asking colonists to commit? What immorality segregationists were asking Luther to commit?. Or the British were asking Gandhi to commit?

Whatever this thing is, it had come up from ordinary people.

Baloney. It was a) forced by judges in particular states, which new "facts on the ground" then acted as a _teacher_ to form public opinion and b) taught aggressively by liberal elites in state K-12 schools, where many parents were unhappily sending their children because they felt they had little other choice to give them the education mandated by the state.

Gian, you are just full of it.

I thought that the term gay marriage was an acceptable term

No, you didn't honestly think that if you bothered to read carefully in these pages for, say, a month or 2. We have consistently, uniformly, and loudly proclaimed that gay "marriage" is not marriage and has no claim to the term "marriage" and that using the term marriage is a misuse of words, not just a mistaken misuse but an intentional abuse.

I will give you a different term: legally sanctioned sodomy. I would be fine with everyone using that term for it. I wouldn't need scare quotes for that.

But the reality remains that half of the country does not feel to be imposed upon by the judges.

Wrong again. You should stop drinking the kool-aid that liberals are pouring for you. Until this November, not one single statewide election allowed gay "marriage". It was defeated time and time again, only to be foisted on us by liberal judges overturning good law and better custom to further their own political agenda. It remains the case that most people don't approve of gays "marrying': even in the states where it was approved, most of the people who voted for it voted to tolerate it not because while they don't feel comfortable with a society that has it, because they (foolishly) were taken in by the liberal mantra that it doesn't actually harm them. And still a majority of states do not allow it. Stop telling such fabrications.

Have you guys not heard of the Will and Grace Effect? A great many younger people think that being homosexual is not much different than being left-handed: it's a minority quality, but one that carries absolutely no moral weight. Of course it was the liberal elites who foisted the notion of homosexual normality on the general population, but with the help of the media, advertising, etc., a lot of younger people (and some older ones as well) have been swayed by the lies. While it certainly may not be a 50/50 split as Gian implies, there is certainly a bottom-up component to the acceptance of homosexual unions. Twenty plus years of effort towards mainstreaming homosexuality have accomplished a lot. The whole thing can't be blamed on bad judges and bad lawmakers.

NM, you call what you yourself characterize as a result of the teaching of the liberal elite a "bottom-up component"? I do not think that word means what you think it means.

And don't downplay the effect of having these things recognized in law, even when imposed by judges. Law is a teacher. Remember that in Vermont, even civil unions were originally imposed by state judicial order.

Have you heard the one about the Massachusetts kindergarten teacher reading the kiddies a story about two princes who get "married"? When parents challenged it as inappropriate content, you guess what the principal said. Yep, you guessed it. He said that since homosexual "marriage" is "the law" in Massachusetts (again, a "law" originally imposed on the state by judges), this content should be taught in the public school. So there's an explicit recognition of the feedback loop, right there.

Right: the elites imposed it long before there was any "bottom up" pressure that mattered in the least. That's just plain history. There was virtually NO public sentiment that wanted TV shows like Will & Grace before they were around, and virtually no outcry for Lawrence vs Texas - type rulings. Those were the products of the leftist elites' own initiative.

While NM is right that many young people have had the brains scrambled by the education industry's lock-step with the culture of death on this, by and large people over 30 have not. And it is still true that people from 18 to 30 are not hugely into voting. So of the voters who voted in the law in the few states that now allow it, the majority are not people who are comfortable with it so much as don't see a good policy reason to stand in its way. Which, more fools they, comes from spending way too much time watching TV and not enough time reading, conversing at length with human beings, and (dare I say it) praying.

Lydia,
You need to ask yourself if the people of Mass really felt so imposed upon by the judges, why there was no disobedience of the law. After all, nobody was going to shoot them down.

Your KG teacher, was she reading the story because she felt obliged to because of the law? Or on her own initiative or concurrence?

Rod Dreher today captures the points I was clumsily trying to make:
The great strength of the pro-SSM crowd has been in their ability to reveal to ordinary people that SSM is consonant with what they already believe about marriage.

And
t the moment traditional marriage became seen as a choice we made as a society, as opposed to something that just is, then the battle was over.

And t the moment traditional marriage became seen as a choice we made as a society,

Yeah, but it didn't happen in a moment, it has been (and is an ongoing) shift over the last 50 years. It is not yet complete: there are still aspects of it that retain the traditional perspective. For example, the view that a wedding ceremony is something to spend several thousands of dollars over retains in it the presumption that this is an important change in the persons who get married. They haven't defeated the entire cultural backdrop of Christian marriage, not yet. Your talk as if it has done so is just an ingratiating bow to the leftists who wish that was true.

The point is that the elites effected a certain amount of cultural change in attitudes toward homosexuality before they attempted political change. Of course this started from the top down. But it could only succeed politically after it had reached the masses, changed some of their attitudes, then began to filter its way back up socially and politically. The imposition thus wasn't entirely an imposition (in the sense that it wasn't forced on an completely unwilling populace) and it wasn't entirely political. The entertainment industry and corporate America had a lot to do with it as well.

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