Jonah Goldberg is right! Jonah has the answer! Of course, it’s no particular news to us. But it’s nice to see the neocons are finally catching on:

So what’s wrong with federalism? Would it really be so terrible if gay marriage were legal in Massachusetts but illegal in Kentucky?

Exactly! Ultimately, federalism is the answer to our Supreme Court problem. To say it is Constitution-affirming is the understatement of the year. And it is indeed a least a temporary answer to most of the problems of the age such as gay marriage and abortion. Realistically, it’s the best that can be hoped for from a conservative point of view.

It is really strange that from the very beginning, with the Right to Life constitutional amendment, social conservatives have had no interest in federalism and insisted on playing “winner-take-all” at the national level. It is obvious who’s going to win there. So why do it? I don’t know what the rationale is because nobody has explicitly ever talked about that I know of. But from a practical, historical or theological point of view, it simply makes no sense.

The election of 2000 made very clear that we are at present two nations. Increasingly our democracy is going to tend toward paralysis because these two nations agree on practically nothing and can accomplish nothing except blocking each other. With federalism, we can each choose to go on our own way on most matters. That’s the only way that will work. Let them have gay marriage and legal incest if they want it. Our states will explicitly ban abortion and have offical government support of traditional marriage.

So let federalism be our battle cry. I’m feeling a bit hopeful, rather unusual for me!

While I think that’s the first time Goldberg has been unreservedly praised at VFR, :-) I don’t think federalism can be the answer in this case. The attempt to redefine the fundamental nature of marriage is pre-eminently a society-wide, national question, and the ONLY way it can be stopped is on the society-wide level, by a Constitutional amendment.

The chances of such an amendment being ratified by three-fourths of the states are approximately zero. Particularly after the lapse of a few years that it will take to get the amendment before all 50 state legislatures. If the left can organize a “no” vote in just 13 states, it’s all over. Of course, the gay lobby will trumpet the failure of the amendment and that failure will indeed put the last nail in the coffin of traditional marriage, the Scopes monkey trial of marital relations. Thus, it is possible that the federal marriage amendment is the best weapon that the left has and we’re giving it right into their hands.

I can assure you that there’s no groundswell for gay marriage in Missouri, nor probably in Alabama or Louisiana either. It is in no sense a national question, and to concede that it is is to hand the left a club they will use to beat you into submission. At the present time, the national arena is a wholly owned subsidiary of theirs. With localities, it’s different. In some places, conservatism has utterly no following. In other places, you would practically rather admit to being a child molester then a liberal. Perhaps in the future, we may recapture some of those liberal bastions. Most certainly, the liberals hope to reconquer their lost territory. But for now, to play to the strength we have we must think locally, act locally. The first reaction of the national government will be to smash all localism, as it is been relentlessly trying to do for nearly a century. To resist that is an uphill fight. But unlike the federal marriage amendment, or other political versions of Pickett’s charge, we have a shot at winning a federalism battle. Particularly if the presently powerful neocons are on the team.

When I said it’s a national question I didn’t mean that there is support for it across the whole nation. I meant that it is a fundamental defining issue of society—like, say, naturalization requirements—and so can only be addressed on a national level. My example is not silly by the way: marriage plays a basic part in immigration law, so the federal government would have to have a position on what constitutes marriage, one way or another.

The state-by-state approach doesn’t fly. Being in a state that doesn’t have homosexual marriage would not isolate people from its effects in other states: gay married couples would be in the media, and so on.

I don’t think a marriage amendment would be hard to pass. I think there would be overwhelming support for such an amendment in three-quarters of the states.

Of course, in the event the amendment fails to pass, then I am with you: federalism becomes the only way to go. But this issue is so fundamental that federalism wouldn’t be sufficient: it would become the basis of some kind of secession. That’s why I say it’s a national issue. To paraphrase Lincoln, you cannot have a nation that is half gay, half straight.

Mr. Auster’s final sentence really hits home hard!

While I think he’s correct that 3/4 of the states might ratify such an amendment, the real problem would be getting a 2/3 majority in both houses of Congress.

Secession seems even less likely, although some foresee the ‘balkanization’ of the country due to the shifting demographics.

Lincoln was right. So the Marriage Amendment can be a sort of referendum on America. It could be quite a fight, like the Equal Rights Amendment. In which case the “moderates” who dislike fights, could be thunderously silent. At the congressional level, it could die for lack of support. I think most neocons will not get on board.

So, fellow federalists, now what?

This is an interesting colloquy, but I would like to toss in a few thoughts.

In constitutional principle, I agree with Gary that the issue (as also abortion) should be re-federalized in the true sense: regulated by the states as before. However, in the area of state-recognized marriage the U.S. Constitution itself presents a problem that we will have to address in defending the right of states, post-Lawrence v. Texas, to confine legal marriage to the (ostensibly) permanent union of one man and one woman. The homosexualists have put great effort into the attempt to have even one state ratify homosexual “marriage” because they believe that Art. IV, s. 1, the Full Faith and Credit Clause, can be read to require all states to recognize as a legal marriage any homosexual liaison that any state has legally recognized as such. Unfortunately, they have a decent argument.

If so, we may need that amendment Mr. Auster asks for, but I agree with Joel that getting such a thing out of the Congress would be very difficult. Convening a constitutional convention in the absence of congressional action would be even more so. Still, I think it would be difficult to get ratification in even the more culturally conservative states. Most Americans today have no say in our political system. (If they did, our immigration policies, among others, would be dramatically different.) Those who are politically interested and active are either politically correct or susceptible to career damage if they are perceived as “homophobic,” which has entered the catalogue of PC sins right behind racism, sexism and anti-Semitism. The noisy and brazen activists on this issue are almost all on the homosexualists’ side. Their pressure on mainstream conservatives to come to heel will be unremitting and very difficult to withstand.

As for secession, my ancestors tried that once, and look what it got us in the end. I wonder what would happen if non-homosexualist states simply refused to extend full faith and credit to homosexual marriages ratified by homosexualist states? A federal test case would almost certainly go against them, but would the feds be willing to enforce homosexual “civil rights” as they enforced compulsory integration in the South and elsewhere? I have a hard time seeing that (yet).

The upshot is that, alas, the Supreme Court has done great damage in Lawrence and opened the way to still greater harm. In the perversion of federalism that is American government today, only the Court can undo what it has done. It is most unlikely to do that. I leave to the collective imagination what the Court will be like if Robert Novak’s intimations about its future prove true: Rehnquist retires, Bush moves O’Connor up to Chief Justice and appoints the pro-abort, pro-affirmative action Hispanic Alberto Gonzales to the Court. True conservatives should put neither faith nor credit in GW Bush’s willingness or ability to appoint constitutionally faithful judges.

Until the Congress is willing (as it is constitutionally able) to rein in the federal courts, we will continue to live under the lawless, sociology-driven federal kritarchy that has ruled us since Brown v. Board of Education. HRS

I appreciate Mr. Sutherland’s observations. Regarding his comment on the possibility of another constitutional convention, I recall in the 80s that there was great concern over the fact that a number of states, (20 I believe,) had already issued such a call.

There was a movement in Virginia to withdraw that state’s call, and a debate over whether this could even legally be done. Petitions were circulated in churches on the matter.

I cannot see such a convention as anything other than the most dangerous shot it the dark. It’s worth recalling that when the Founders convened the 1787 Convention, the only legal mandate they had was to amend the Articles of Confederation. The first thing they did was close the doors and agree among themselves to throw it out and start over. What they produced then was technically an extra-legal document.

Mr. Madison practically admitted this in the Federalist, No. 40, and asked the reader to overlook this fact and judge the proposed Constitution on its own merits.

Of course, in retrospect we are glad of this, though perhaps with less enthusiasm recently. But the point is, how do we know that something similar might not happen again leaving us in an even worse position?

Who would the representatives be? Would they represent anything of the caliber, or stand for sound principles, the way the Founders did? The very idea is laughable. It would become the tool of globalists and moral relativists who would sweep away whatever remains of our national sovereignty and our Christian foundations, to say nothing of many rights such as keeping and bearing arms.

I have heard nothing more of this in over a decade, but I’ve often wondered whether it merely lies dormant for the present, an ace in the cards that could be played at a strategically significant moment, that would change the rules of the game forever.

Speaking of gay marriage and federalism, check out what’s going on in Canada. The premier of Alberta says that Alberta will not recognize gay marriage (http://www.chroniclesmagazine.org/News/Scallon/NewsSS062703.html). This could be interesting.

A honest question from someone living in a country which accepts same-sex marriage. As I don’t see any negative consequences from it what is, in your view, the problem we will be facing?

The problem we will be facing is this: our laws are based upon principles which derive from the natural law. One of those principles involves the true nature of marriage, which is union between man and woman for the sake of the family; i.e. the procreation and nurturing of children. Denying the true nature of marriage and redefining it as a mere cohabitation contract between any two individuals thus injects a profound corruption into the law which has far-reaching consequences, one of which is that the bearing and raising of children is no longer viewed as the central concern and duty of adults. Under the new regime, self-indulgence and the satisfaction of base, sensual lusts is the name of the game. That’s what the new principle just established represents, inasmuch as those who defy nature for the sake of their own gratification are by definition self-indulgent.

As for the practical consequences, which is what I believe you’re asking about, I’m not going to waste my time trying to list them for you. Even if I said this decision would lead to the legalization of pederasty and bestiality, your answer would still be, “So what?” Once you’ve slipped the bonds of nature and established selfishness as your guiding moral principle, the sky’s the limit. There’s nothing that can’t seem good to you as long as you desire it.

Bubba states this well. And it also takes the argument beyond the strictly homosexual side of the issue. Marriage is a life-long relationship aimed at creating and continuing family. That some marriages don’t result in children is the exception from the rule. If people said that marriage in its essence is nothing more than the companionship of a man and woman who want to be together, that would be seen as reductive of the nature of marriage. Therefore the idea of a homosexual marriage is at least equally reductive.

But of course it’s far worse because it’s not just a reduction of the idea of marriage, but a perversion of it.

“Once you’ve slipped the bonds of nature and established selfishness as your guiding moral principle, the sky’s the limit.”

I would amend this to: “… the depths are the limit.”

There’s so much more to be said in response to Bart’s question. Here’s just one thought. If our society legalized same-sex “marriage,” we would have ceased in any way to be a Christian society or a society based on Judeo-Christian morality. The standards and values that stand at the center of our civilization would lose all authority. We would become an officially hedonistic society.

A society that rejects—consciously, deliberately, officially rejects—its fundamental morality and identity has committed suicide. But part of what’s happening now is that this inconceivably radical change is being presented as the mainstream “consensus” that all normal rational people share, and that only pathetic bigots and reactionaries think otherwise. This is a mark of how truly lost America’s dominant liberal culture has become, how extreme is its rebellion against God.

It is as though the fallen angels in Paradise Lost, instead of knowing themselves to be damned souls in hell in rebellion against God, and even being turned into hissing serpents once a year as a reminder of their condition, were instead relaxing in a pleasant back yard, grilling hamburgers, sitting in lounge chairs, watching a baseball game, reading the New York Times.

But isn’t traditional marriage between man and woman in itself an expansion on the original natural law where a family serves to protect and raise vulnerable children? For example the fact that traditional marriage is ‘till death do us apart’ where strictly speaking the usefulness of marriage ends when all children are grown up and independant? Isn’t same sex marriage not just another expansion of what once was a nature’s law that couldn’t be defied but has become less necessary due to the evolution of modern society.

Another question that remains unanswered is why same-sex marriage would not create a suitable family for raising children. Especially in times where some children are often denied the protection of caring and loving adults to various reasons, same-sex couples could step in to fulfill that role for some of them, couldn’t they? In that light don’t same-sex marriages bring the marriage institute closer to what it originally was : the forming of a strong bond to raise and form young people?

Bart asks:
“But isn’t traditional marriage between man and woman in itself an expansion on the original natural law where a family serves to protect and raise vulnerable children? For example the fact that traditional marriage is ‘till death do us apart’ where strictly speaking the usefulness of marriage ends when all children are grown up and independant?”

No. The family takes care of its own from birth to death, as is obvious to anyone who is involved in taking care of older parents or chronically ill adults. The notion that family obligation ends once the birds are thrown from the nest is peculiar to modernism. Human beings are and always have been interdependent (Mr. Kalb might say “man is a social animal”) and the family is the most basic institution that gives rise to a good life in the contect of that interdependence.

Homosexual “marriage” isn’t the only thing that destroys the family, of course. Homosexual “marriage” represents the end of the end of marriage, not the beginning of the end. There is a reason why so few children are present in the works of John Locke, Ayn Rand, Thomas Jefferson, Karl Marx, et al.

Of course Jonah Goldberg is right that the sexual moderns have won. Where he is wrong is in his expectation that the consequences of that victory will not be severe. As someone from an ethnic group that has suffered mass murder at the hands of liberal modernism that is somewhat inexplicable, but then it is hard to overestimate the capacity for human beings to fail to see what they do not want to see.

I said:
“The notion that family obligation ends once the birds are thrown from the nest is peculiar to modernism.”

I could have said more precisely:
“The notion that family obligation ends once the birds are thrown from the nest, and that it represents a one-way obligation of parents to children rather than a many-to-many complex of obligations, is peculiar to modernism.”

But if the strength of family obligations truly depend on the web of many-to-many relations, why is marriage then traditionally restricted to one woman for one man?

Another way to put it is : if human beings are really interdependent, isn’t that in itself the strongest argument against family because it ‘artificially’ limits the number of interdependencies between human beings?

Following that line of thought the moral and naturally right thing would be a society that takes children out of the hands of the ‘limited’ family and into an education of the many. But historically that is clearly not the case.

So mustn’t we conclude (and indeed, that’s my personal opinion) that humans are individualistic by nature and social by necessity only? And isn’t that the reason why humans tend to prefer the smallest circle of people in which survival is possible, ie the family, consisting tradionally consists of man, woman and (a lot of) children.

Bart asks:
“But if the strength of family obligations truly depend on the web of many-to-many relations, why is marriage then traditionally restricted to one woman for one man?”

One might as well ask why the body is restricted by the skin. Why indeed? Doesn’t the existence and interdepencence of bones and organs indicate that the skin is an irrelevant product of evolution that serves no function other than to imprison the rest of the body? The attempt to deny actual ontic moral reality is very much like skinning onesself alive in an attempt to break free from the constraints of one’s nature.

Bart apparently wants to view the family and human society as a machine that can be manipulated based on what we will rather than an organism, a divine creation that has a teleological nature intrinsic to itself irrespective of what we will. That is indeed the modern view, and it in fact always does end in nihilistic suicide (nihilistic because the murder extends well beyond the self).

As I mentioned, the human capacity to fail to see what one doesn’t want to see is difficult to overestimate.

“So mustn’t we conclude (and indeed, that’s my personal opinion) that humans are individualistic by nature and social by necessity only?”

It isn’t so much that we “must” conclude this as that Bart and other liberals assume it despite its manifest falsity.

Another way to put it is that Bart seems to think that all family obligations in the web are equal. Certainly it is true that a man has an obligation to his wife, his parents, and his second cousin. Some of those obligations are more or less chosen and some are not, but they are all real and the denial of any of them results in the partial destruction of the self, the other, the family, the church, the nation, and society.

Bart seems to think — though admittedly there is some filling in the blanks needed in order to analyze his thought at all, so I may well be unfairly stereotyping — both that these obligations exist only to the extent they are consented to and that they are all identical in kind, degree, and priority. That is manifestly false though. The duties one has to parents, children, spouse, siblings and cousins are all real and are all quite different. Waving the hands and saying “assume they are the same” does not make them the same.

Has anyone noted the fact that the sodomy decision directly atacks the military code of justice. The Uniform Code of Military Justice forbids sodomy explicitly

925. ART. 125. SODOMY

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration , however slight, is sufficient to complete the offense.

(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

The Court’s decision might mean this article will have to be removed, and could also end the ‘don’t ask, don’t tell’ hypocracy in favor of open homosexuality in the Military.

Oh well.

I don’t think the likelihood mentioned by Mr. Young had been brought up before—the Lawrence v. Texas decision is so vast in its implications that no one can keep track of them all.

Isn’t time for conservatives to launch their own mass movement against this? How about a huge march on Washington protesting what the Supreme Court has done? If conservatives can’t get roused enough by these revolutionary acts by the Supreme Court to protest them, then the conservative movement ought to give up the ghost and admit that America is no different from the statist society of Europe.

We don’t need no stinkin’ constitutional amendment that probably has little change of passage anyhow. Pat Buchanan

http://www.wnd.com/news/article.asp?ARTICLE_ID=33448

has a great idea: pass the Defense of Marriage Act once more with this addition: “This law is not subject to review by the U.S. Supreme Court.”

At one stroke, this stands up for marriage and places squarely in public view the fact that congress has a veto over the Supreme Court it never uses. And we must therefore ask why, and whether the imperial judiciary will continue. We don’t have a marriage or abortion problem so much as a Supreme Court problem and we need to force this into the public arena. Like the man says, if congress refuses to confron the court, we should confront congress.

We’ve discussed this before, and maybe I’m being naive or overly hopeful, but I can’t see the state legislatures and Congress voting against an amendment declaring that in the United States, marriage means a man and a woman.

Where there could be a problem is in the further language that I think I’ve seen in the draft amendment, to the effect that none of the rights and privileges of marriage will be extended to other relationships. That is most needed as it would close out civil unions (as well as other inappropriate recent extensions of the rights and duties of marriage, such as state-enforceable child support, into non-marital relationships). But it would have a much harder time being approved.

Pat Buchanan wrote:
“Lincoln’s War overthrew that Constitution. When 11 “free and independent states” sought peacefully to depart from the Union, they were dragged back in, by invasion and war.”

Part of the problem is that everyone has to give up their mythology about some time in the past where government power was legitimate, as opposed to today when it supposedly is not. The motivation for the mythology appears to be the desire to declare moral victory and refuse to talk about it any further. Sometimes the protagonist wants to do this for substantively good reasons, and sometimes not; but in every case it is a mistake.

There is not, and never has been, a “perfect past” that can be invoked as the turning point before which our government was legitimate, while now it is not. That is just more liberal sophistry, and it is sad to see a man of fundamental good will (and a natural conservative) like Buchanan fall into it.

Legitimate government authority does not reside, and has never resided, in “the people” (whatever that abstraction is supposed to mean — “consent of the governed” I suppose despite the overt self-contradiction). Ironically the more we attempt to demand self government as a right the less self governing we become.

Buchanan observes:
“Congress has the power to abolish all federal courts except the Supreme Court and to limit that court’s jurisdiction to ‘cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party.’”

The State of Texas was a party in the case “Lawrence vs. Texas”.

I wrote:
“The State of Texas was a party in the case “Lawrence vs. Texas”.”

Of course the _Defense of Marriage Act_ that Buchanan advocates would be a federal law. But does anyone think that liberals wouldn’t get a State to challenge it, thereby placing it in the explicit constitutional jurisdiction of the Supreme Court?

Federalism is nice and all: power should indeed be distributed locally as much as possible, and should reside in non-govenmental institutions like church and family. But constitutional literalism is no savior. Those who would live by federalism will die by federalism.

Matt’s comments raise more questions than they attempt to answer. Is the debate over the powers of the Federal Government vs. those of the several states not a legitimate one? Does Federal encroachment into the powers reserved to the states in 2 Amendments not represent a subject of practical debate? Or does it all come down to whomever has the most raw power, as if this settles any political, or even moral, question posed thereby?

Matt’s posts are often nothing short of brilliant, when they can be understood, but he seems to have an aversion to the very concept of constitutional government, implied if not directly stated.

As to his comments that no government is, or ever has been, perfect — that seems to be self-evident enough. No nation, or race, has ever been able to rise above the limitations of sinful human nature regardless of their form of government; all bring with them their own set of problems. But what does restating this obvious fact have to do with discussing the merits of this or that development on the timeline of political history — or comparisons between on form/approach to another?

Mr. Auster, I of course hope you are correct that an amendment clarifying the definition of marriage could be passed. But one lingering question remains which ought to be addressed.

Since the Supreme Court has effectively overturned the 14th Amendment on the grounds of “compelling state interest,” is it not possible that they could circumvent a marriage amendment in the same manner? citing, as it were, a state’s interest in “diversity”?

Since we have exceptions generally agreed upon even to other amendments — you can’t yell “Fire!” in a crowded theater and claim First Amendment protection, which most view as a legitimate limitation on free speech, to say nothing of the numerous Federal firearms laws — what guarantee would we have that a comparable runaround couldn’t be contrived here?

The real quandary would then be this: If even a constitutional amendment were not able to defend traditional marriage, then we would have really, REALLY lost.

All that would remain would be the possibility of Congress reigning in judicial power, but the absense of any real historical precedent for this renders it unlikely.

Joel writes:
“Does Federal encroachment into the powers reserved to the states in 2 Amendments not represent a subject of practical debate?”

Certainly. Stipulating the well known obscurity of my writing, my last two posts were attempts to point out that on those grounds Buchanan’s approach will not work and is thus not worth pursuing as a practical matter.

“Or does it all come down to whomever has the most raw power, as if this settles any political, or even moral, question posed thereby?”

Certainly not! The question of legitimacy arises in any number of contexts, and I’ve made several observations about the legitimacy of authority. Usually people are asking the wrong questions though. The things of Caesar are the things of Caesar, and one question is at what point (if ever) is one justified as an individual in outright rebellion against the secular powers. Another question is what constitutes a good secular power.

When I say “legitimacy does not come from the abstraction ‘the people’” I am simply observing a manifest fact (unless, with the radical liberals, one believes that there never actually has been any legitimate earthly authority). I believe that manifest facts are better faced than not. That doesn’t imply that I have a comprehensive theory that would answer any question that might arise in a manner that is satisfactory to everyone. But of course in a discussion among gentlemen I will do my best to answer specific questions in as forthright and honest a manner as is possible.

Joel writes:
“The real quandary would then be this: If even a constitutional amendment were not able to defend traditional marriage, then we would have really, REALLY lost.”

If the answer is sought in a formal solution to which everyone would then have to conform, like a constitutional amendment, then I agree that all is lost. The point at which all is not lost is exactly the point at which those formal solutions are no longer needed or would pass without controversy. The basic problem is not the formal structures taken in themselves, but the fact that underneath the formal structures liberalism is the default political worldview. The big base of red-state support that such an amendment would get is infected with liberalism. Our formal structures are just a reflection of our underlying political world view. If the red states repent of their liberalism then nothing can stop them; if they do not then formalities are just formalities.

Since I think this was a question without a question mark, I will attempt to answer it:

Joel wrote:
“…but he [Matt] seems to have an aversion to the very concept of constitutional government, implied if not directly stated.”

I do think that, as a matter of objective reality, an attempt to embody the complete authority of a polity in a written document will always fail. At this late stage of modernism the limitations of text-qua-text are well known. Written documents like constitutions are necessary but not sufficient, and any doctrine of legitimacy that depends on _sola constitution_ (including things like explicitly enumerated powers) will fail. There will always be an interpretive human authority and a tradition that are at least coequal in authority to the document, because there is no possibility of any meaning at all in the formal text without them. It is an unstated denial about the fundamental impossibility of meaning sans tradition and interpretive authority that I object to, not written instruments per se.

Respectfully, and with no intent to offend my protestant friends: Americans want to treat the Constitution in much the same way as protestants want to treat Scripture, as something that stands alone and whose plain meaning applied to new contexts can be extracted completely and without error by any honest man. Text and meaning don’t work that way though.

This reflects my understanding of things, which of course could be wrong as I am indeed a fallible and fallen human being. But nevertheless I do think I am right.

Joel is correct that, given the total freedom the Court now gives itself to re-write the Constitution, no proper constitutional amendments that we might pass would be secure either. But this only points us back toward the ultimate ground of political power, which is the consent of the people. When a particular system really does become unendurable, the people rise up against it and cast if off. The Supreme Court and the liberal culture have imposed these wholly illegitimate interpretations of the Constitution on us. The Court has even had the shameless audacity to say they they are doing this in the name of conforming the Constitution to a supposed emerging consensus in America and the Western world. In effect, they are now acting as the tribunes of the people, even as the tribunes of universal humanity, instead of as the guardians of the U.S. Constitution. Of course that is improper in the extreme, but they have done it nonetheless. If the people now accept that usurpation, the usurpation acquires, in pragmatic reality, the force of law. All government, whatever its nature, whether democratic or dictatorial, ultimately rests on the consent of the people.

Since the Court, acting in the name of the people’s consensus, has revolutionized our system, the only way to win our system back is by challenging that suppsoed consensus, through our public refusal to honor their usurpations. The sine qua non of such a popular protest would be mass demonstrations denouncing the Court’s action and insisting that they stay within the Constitution. Since the Court follows consensus, such protests would affect what they do.

The Constitution is not a self-running machine as liberals imagine. If it is to be maintained in existence, if it is to live and not die, then it must be defended by the actions of human beings.

If conservatives can’t rally 100,000 or 200,000 people to march in Washington against the Court’s attacks on the Constitution, then by their very lack of response they are consenting to, and legitimizing, what the Court has done.

Mr. Auster writes:
“But this only points us back toward the ultimate ground of political power, which is the consent of the people.”

This is both true and not true. It is true that no polity can stand if all of its people rebel, as a matter of fact. But the notion that a government derives its _moral legitimacy_ from the fact that there is no rebellion is I think objectively wrong. So perhaps Mr. Auster can clarify.

Mr. Auster would like to know how the amendment will be defeated. Not a problem.

If I were a smart liberal, I would realize my best shot would be to kill it in congress. Of course, a majority in both houses will be in favor but to pass it needs a supermajority and therein is how I kill it. I just need to persuade a few people to oppose it. I will trot out a variant on the the old but effective argument, used by Planned Parenthood politicians for abortion: “I do not necessarily support gay marriage but I oppose this amendment because …”

“This is a political matter which does not rise to the level of amending the constitution” — gloss on Clinton impeachment.

“This is an outrageous attempt to take away from the people their right to decide this issue for themselves both now and in the future” — the ‘let freedom ring’ argument aways sounds so good

Or. . make up another one. Just to detach the amendment from the issue of gay marriage per se. And I have only to persuade a very few people to buy into this crock.

As for George, well, he’s never been against gay rights. He does something pro-gay whenever nobody’s looking. So he’s got Frist out there patting the base on the head, while he himself temporizes. He won’t get on board this bandwagon. Which gives GOP moderates full permission to vote no.

No sweat. This amendment is a goner. I don’t even have to try hard.

Perhaps this can help with Joel’s questions about the moral legitimacy of living with the results of our demands to God about our secular governance:

——

19 But the people refused to listen to Samuel. “No!” they said. “We want a king over us. 20 Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.”
21 When Samuel heard all that the people said, he repeated it before the LORD . 22 The LORD answered, “Listen to them and give them a king.”

——

The fact that the Israelites would come to regret the monarchy that they asked God to provide to replace the judges does not destroy the basic _legitimacy_ of that monarchy. This despite the fact that:

——

10 Samuel told all the words of the LORD to the people who were asking him for a king. 11 He said, “This is what the king who will reign over you will do: He will take your sons and make them serve with his chariots and horses, and they will run in front of his chariots. 12 Some he will assign to be commanders of thousands and commanders of fifties, and others to plow his ground and reap his harvest, and still others to make weapons of war and equipment for his chariots. 13 He will take your daughters to be perfumers and cooks and bakers. 14 He will take the best of your fields and vineyards and olive groves and give them to his attendants. 15 He will take a tenth of your grain and of your vintage and give it to his officials and attendants. 16 Your menservants and maidservants and the best of your cattle [2] and donkeys he will take for his own use. 17 He will take a tenth of your flocks, and you yourselves will become his slaves. 18 When that day comes, you will cry out for relief from the king you have chosen, and the LORD will not answer you in that day.”

——

I think the book of Samuel and the time of the Judges provide some clues about where political legitimacy comes from.

In reply to Matt, I don’t mean that the will of the people in and of itself bestows moral legitimacy, but that, as a matter of practical fact, any government, whether democratic or despotic, whether moral or immoral, ultimately rests on the consent of the people. Take the Iranian revolution in 1979. When masses of people took to the streets, and the Shah or his successor did not have the will to stand up against them, the government fell. I’m not saying that was the good thing, obviously, since the Ayatollah instituted a reign of darkness. Nevertheless it showed that power rests on the willingness of people to put their bodies in danger. All the more so would the same principle apply to a moral people seeking to preserve their Constitution.

Re Mr. Auster’s last:

Marching on Washington is exactly what most respectable conservatives (or any other kind) will not do. Average Americans who think of themselves as not liberal (I wonder how many Americans think of themselves as actually conservative, whether or not they in fact are) do not engage in protest marches, with the exception of the more courageous pro-lifers. To most Americans, protest marches - except for those led by Martin Luther King, whom they have been indoctrinated to venerate - are the temper tantrums of eternal adolescents.

Such people look to the President and the Republican Party for guidance. Both are happy with the Michigan decisions and the Lawrence decision. Organized religion - another source of guidance for the silent majority - is happy, too. I have been to Mass several times now since the Lawrence decision came down, both in my modernist home parish and in a conservative New York church. Not a word about the Supreme Court’s purported grant of a constitutional imprimatur to sodomy, which Catholic teaching explicitly condemns, although the padres often wax eloquent about our duty to welcome and support illegal aliens.

Nothing can make the Court’s legislation legitimate, but there is no question that the overwhelming majority of Americans has effectively consented to rule by the federal courts, no matter what the result. The Court’s usurpation has acquired the force of law. It does not help that, shirking tough issues that might give trouble at election time, so many Congressmen and presidents (state legislators and governors, too) have been so willing to see their authority usurped by the federal courts.

To most people these changes are still too abstract to worry about. After years of thinking that the latest outrage will be the straw, I now think nothing will break the back of American complacency. It turns out today’s Americans’ tolerance of misrule is as great as anyone else’s. Our Colonial and Revolutionary ancestors would not be impressed. HRS

Mr. Auster: thanks for the clarification.

Mr. Sutherland’s comment is truly discouraging. It’s a message I don’t want to accept, because it would mean that America has passed some threshold and there is no ground left on which an honest conservative can stand within this system. Maybe people need more time to take in what these decisions mean before they respond to them. At various times over the last ten years I’ve said that America is “dead,” that it “no longer exists,” that it’s “illegitimate.” Each of those statements was relatively true, pertaining to some things about the polity, but not other things. But these two decisions are much worse. Together they are the greatest blow against our country in our lifetime. I hope and pray that there will be real resistance to them.

Where is the federal marriage amendment exactly? Here it is:

http://thomas.loc.gov/cgi-bin/bdquery/z?d108:HJ00056:@@@L&summ2=m&

It’s presently in the House Committee on the Constitution. But it has only 25 co-sponsers. That’s nothing. The ERA (yes, it’s still there) has 202 co-sponsers. Utter apathy reigns, more so when you consider it has been around two years now. This puppy is not going to make it out of committee.

Well, Bill Frist is not apathetic. Having said what he was told to say, he is running from this marriage thing so hard that if he was on a track, he’d win first second and third place. It’s back to healthcare for Dr. Bill.

So why talk about the amendment anymore? In practical fact, there is no such thing.

Let’s not be overly eager to find utter defeat.

Here is the proposed amendment itself. The linked site has an explanation of the provisions.

FEDERAL MARRIAGE AMENDMENT (H.J.Res. 56)
Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

http://www.allianceformarriage.org/reports/fma/fma.htm

I believe that Sutherland and I are not so much defeatists as realists. And I would say realism is a prime conservative virtue.

That old huckster, the late Charles J. Givens, had an interesting philosophy, which among other things, taught:

Accept yourself exactly where you are, no matter what your circumstances
If I’m in a fat body …
If I’m in a wheelchair …
If I’m broke and deep in debt …
If I’ve lost my confidence …
If I’ve lost everything I had …
Where I is, is where I is—but where I go is up to me.

In the case of traditionalists, we might say (with a nod to Irving Kristol and Paul Weyrich):

If we have utterly lost the culture war …
If in fact we no longer command a majority anywhere except within our own institutions …
If every major cultural institution is now in the hands of the enemy …
If the situation gets worse every day …
If the old Republic is gone …
If it is never coming back …
Then where I is, is where I is. There is little choice but to begin again utilizing what is left, building a new traditionalist world—whatever that is—beginning with our present situation.

It will take a long time, decades and decades, (it took the left a century to destroy what our forefathers gave us) and it is our children and grandchildren who will see the result, not ourselves. But the truth is on our side, and sooner or later the fools who are presently in charge will be exposed when they lead us into some great cataclysm. Then, perhaps, the truth will out if we can only survive and persist.

Ultimately, the battle is with ourselves and not with our enemies. We are lazy and lax, undisciplined and weak. We increasingly do not know what we believe and we cannot articulate what we know. We lack the will to do anything about it . Traditionalism is so incoherent it hardly exists at all. We are in no position to win anything and do not deserve to.

But as with ancient Israel, there may be yet a saving remanent. And there lies our hope, not Utopian because it is possible, lying in a more fluid future and not a flint hard ruined present. So it is this which enables me to read each day’s headlines (today for example: major movie chain goes all adult, straight men get makeup lessons from gays) and still believe the Lord and his truth can make something of this mess in the long run though it is beyond our power to do so.

Thanks to Matt for his excellent responses to my queries. However, I think his examples support what Mr. Auster has asserted.

The Bible is clear enough on the basis and prerogatives of civil authority. I think this actually goes back further to the institution of capital punishment following the Flood.

Paul’s dissertation in Romans 13, and Peter’s command to “Submit yourself to every ordinance of man for the Lord’s sake: whether it be to the king, as supreme” close the matter.

However, I don’t see this as determining exactly what mode of government man must embrace, only to obey the government that is in place, (except of course, where the command of government directly contradicts the command of God.)

In the passage you quoted, you left out a key verse:

“And the Lord said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them.” (I Sam 8:7)

And in fact, the passages you quote seem to bolster Mr. Auster’s position: It was the PEOPLE who CHOSE this form of government, and God merely acquiesced to their desire — after He had expressed His own feelings on the matter.

Even the Mosaic Law was in a way conditioned upon the acceptance of the people: “tell the children of Israel … therefore, if you will obey my voice indeed, and keep my covenant, then you shall be a peculiar treasure unto me above all people … and all the people answered together, and said, All that the Lord hath spoken we will do. And Moses returned the words of the people unto the Lord.” (Ex 19:3-8)

I think this passage also supports Mr. Auster’s position. And I don’t think that in any case, any of these passages really advise us on the form of government that any people on earth should embrace.

Matt said: “Respectfully, and with no intent to offend my protestant friends: Americans want to treat the Constitution in much the same way as protestants want to treat Scripture, as something that stands alone and whose plain meaning applied to new contexts can be extracted completely and without error by any honest man.”

This is well-taken. Those who believe in the authority of Scripture in the manner you refer to as ‘Sola Scriptura’ indeed believe that man can approach the Word of God with an open heart, and find the truth therein — with the guidance of the Holy Spirit, (but hardly without: I Cor 2:13-14)

By analogy, the Constitutional government we know cannot survive unless the people acknowledge and obey God and his moral laws. To quote Mr. Adams again: “Democracy is for a moral and religious people, and for no other.”

Even if you do not agree with the first part, the second part seems to be an underlying and recurring them on the part of most of us here. I think it along the same lines of your July 7, 2003 02:12 PM post, which was quite on point.

I’ll quote Joel out of order here, hopefully without distorting anything he was trying to say.

Joel writes:
“I think his [Matts] examples support what Mr. Auster has asserted.”

I think Mr. Auster and I are in agreement on the following points: the _legitimacy_ of political authority does not come from the consent of the governed; however, “consent of the governed” construed as meaning a lack of widescale violent rebellion is a factually (not morally) necessary condition of stable governance.

“I don’t see this as determining exactly what mode of government man must embrace, only to obey the government that is in place, (except of course, where the command of government directly contradicts the command of God.)”

And here Joel and I agree. Rebellion against the government-in-place because of a 2% tax on tea would not meet the standard, for example.

I don’t think there is necessarily any disagreement about the observation that the moral legitimacy of a government cannot and does not come from consent of the governed.

Sidestepping the Scriptural/theological issue, though, (since presumably the Constitution is not the inspired word of God and a special interpretive charism from the Holy Spirit doesn’t come into play in Constitutional interpretation) Joel seems to be saying (subject as always to clarification) that _sola scriptura_ of a sort does apply to the Constitution. I don’t think that works. There always has to be actual (privileged) human beings and a body of non-explicit tradition that are coequal in authority to the text, or else the text has no meaning whatsoever.

“And I don’t think that in any case, any of these passages really advise us on the form of government that any people on earth should embrace.”

I suppose it does indicate that the centalized Kingdom is inferior to the looser tribal confederation of the Judges. So Jehovah does seem to favor subsidiarity, at the least.

In any case there is a prudential point to be made here in our current context. Structures are secondary; but if we are to repent from liberalism we should embrace structures that reflect that repentance and shun structures that fail to reflect that repentance.

Structurally, liberalism has destroyed monarchies and has promoted popular republics, democracies, and secular dictatorships. There are reasons why this is so. Republics and democracies formally reflect the underlying principle that the _moral legitimacy_ of governance derives from the consent of the equally free governed. Modern secular dictatorships reflect the ultimate exaltation of the human will. Modern democracy and modern secular dictatorship are two sides of the same coin — the coin that sets the human will as the ultimate standard of legitimacy.

Both the democratic expression and the dictatorial expression reflect underlying liberal values. Monarchy does not. Therefore if repentance from liberalism is to be taken seriously there will naturally be a preference for monarchy (and other illiberal expressions) over those other forms. That preference will reflect underlying principles rather than representing an end-in-itself, but it nevertheless makes a good test as to whether we have taken repentance from liberalism seriously.

This is indeed the critical passage, by the way, and Joel was quite right to quote it and emphasize it:

“And the Lord said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them.” (I Sam 8:7)

Indeed, let “the voice of the people” suppose itself to be the proper authority and let “the people” stew in their folly.

I will follow Matt’s lead and sidestep the theological issues here; I’m sure we’ll have opportunity to revisit them in the future. I’ll only note that I don’t think I make any claim to scripture (or its relationship to tradition) that the Scriptures don’t make of themselves. And if Matt caught my rather late apology in the “Experts” thread — I’ll try to conduct myself in a more gentlemanly manner when the opportunity does arise, as befitting participants of this site.

Matt’s apparent preference for the monarchy carries with it the same problems that afflict all forms of government, including our own, only centered in that case on the person of one man. The experience of Israel under the kings illustrates this well. Almost all of the kings of Israel and of Judah were evil to the core, and this affected the people’s conduct substantially.

There were of course exceptions — the reforms, and occasionally the revivals, under such kings as Hezekiah, Joash, and Josiah — but these were indeed the exceptions. The rule was kings devoted to idolatry, perversion, and rebellion against God, all of which carried up the people and resulted frequently in severe and deserved judgement.

The difference in our limited democratic government is that much more depends on the whole of the people, and their own submission to God, than just one man. But in both cases, the same sinfulness of man, or in a few cases the spiritual revival of the man or the people, determines their immediate blessing or lack thereof.

Regarding the cause of the rebellion of the Colonies, I was listening to an historian on C-SPAN a couple days ago, who agreed that the tax was only 2.5%, and noted further the explicit provision that this money should go to benefit the colonies. But there was a principle involved, that those who are taxed should enjoy representation in Parliament, of which the colonists had none.

The colonists’ position was that they should enjoy this same right of all Englishmen. I’m sure, given your other statements on the notion of equality, that you could find fault with this insistence, but I’ll stand by the judgment of such men as General Washington, whose character is a credit to our nation beyond nearly any known in the world. These men had everything to lose in standing behind their principles — and many of them indeed lost everything.

As far as your comment on the Judges, it’s worth noting that this method of administering the theocratic government will one day be restored to Israel, (Isa 1:26,) which, if I am “rightly dividing the word of truth,” will occur during the kingly reign of Messiah — now there’s a Monarchy we can both happily endorse!

Following your posts can be a struggle, but a worthwhile one, as when playing Chess or practicing martial arts combat one benefits from engaging another who is clearly his superior. It is a compliment to me that you find any of my posts worth replying to at all.

Matt wrote:

“I think Mr. Auster and I are in agreement on the following points: the _legitimacy_ of political authority does not come from the consent of the governed; however, “consent of the governed” construed as meaning a lack of widescale violent rebellion is a factually (not morally) necessary condition of stable governance.”

I think my point about consent would be clearer if I expressed it in terms of representation rather than legitimacy. As Voegelin argues in the first chapter of The New Science of Politics, “Representation and Existence,” all political societies exist by virtue of some body or person that existentially represents the society. This is as true of a dictatorship as of a democracy. What we normally think of as representative government only applies to some forms of political society; the representation Voegelin speaks of applies to political society as such. What such representation means is that the acts and words of the representative are taken as speaking for the society; they have authority and are obeyed. Thus Saddam Hussein represented Iraq, even though he was completely non-representative in the democratic sense, even though many of his people hated him, and even though he had no moral legitimacy. Nevertheless, his acts and words were taken as representing the country of Iraq and were obeyed.

My point about consent is that, in the absence of wide-scale protest or rebellion, the usurpations by the Supreme Court will be seen as, and therefore will be, REPRESENTATIVE OF AMERICA AS A POLITICAL SOCIETY, even though those usurpations are utterly illegimate in a constitutional and moral sense. So, in reply to Matt, my point is not the obvious point that if the people rise up in violent rebellion the government will become unstable or even be overthrown; my point is that if there is widespread protest or rebellion, the government, its decrees and doctrines, cease to be seen as representative in the existential sense. And this may be the only way to defeat the Supreme Court and the liberal regime. On the other hand, if the American people do nothing, if they accept these decisions, then they have accepted that these decisions represent them as a political society. And that is what must not happen.

I wrote:
“Modern democracy and modern secular dictatorship are two sides of the same coin — the coin that sets the human will as the ultimate standard of legitimacy.”

And for the Hegelians out there, the abolishment of politics in the form of a bureacracy of experts in an all-powerful global NWO represents the synthesis of secular democracy and will-to-power dictatorship. Dialectical Hegelianism may well be a self-fulfilling prophecy that applies to all of liberal modernism (the notion that it applies to all of history everywhere is of course pure hubris).

Matt writes: Indeed, let “the voice of the people” suppose itself to be the proper authority and let “the people” stew in their folly.

But what exactly is it you suggest that’s any better, in your preference for monarchy? That the people should just be overwhelmed by political power generated from the barrel of a gun, as Chairman Mao suggested?

What exactly do you see as the ideal form of earthly government where both the governing and the governed are fallen sinners?

Joel writes:
“Matt’s apparent preference for the monarchy carries with it the same problems that afflict all forms of government, including our own, only centered in that case on the person of one man.”

A couple of clarifications:

My basic point about structures is that if we take repentance from liberalism seriously we will, all other things held constant, prefer illiberal structures to liberal ones. That means that we will view monarchy - of the proper sort, more in a moment - as superior to democracy specifically because it repudiates liberalism (that is, the notion that government’s purpose is the enforcement of equal freedom and that its legitimacy derives from the consent of the governed). The “all other things held constant” bit is important though. If in practice the subsidiarity and other concrete benefits Joel speaks about arose from the liberal forms more naturally than from the illiberal ones then that might make us prefer the liberal ones enough to outweigh the fact that they reflect ideological liberalism while monarchy and other forms do not. I don’t think they do, though, in actual practice; although it may _seem_ that way because of the cultivated talent for ignoring the obvious that is intrinsic to liberalism. The souls of 40 million unborn infants murdered in the US and 100+ million innocents murdered by communism and naziism beg to differ.

Of course the sort of monarchy we would prefer would indeed have to embody the subsidiarity that Joel rightly sees as critical, so that it would not have utter dependence on one man. That means something feudal or akin to Plato’s Republic rather than something Napoleanic. There are certainly bad and good monarchies, and most of them are bad.

Finally (on the structural issue), there is a necessary humility associated with being a traditionalist that implies that we have to start where we are and work slowly and modestly. Repealing the 17th is a good start, for example, for those who wish to work on something specific right here and now. Indeed an instantaneous switchover to an aristocratic kingdom would almost certainly be an utter disaster and should be outright opposed in the unlikely event that a viable push for it occurs. But underneath it all we shouldn’t be horrified by, and indeed should find some affinity with the notion of a future Kingdom of America.

As to whether the English colonists were perfectly justified in rebelling in 1776, that isn’t something I find particularly important (though ironically I raise it because of its lack of importance). There were good men and bad among them, they did brilliant things and ignorant things, noble and ignoble. I am a traditionalist, so I recognize that our legitimacy as a people doesn’t depend on there being no mistakes, practical or moral, a few hundred years ago in some particular set of events. It doesn’t even depend on the American founders having been in the moral right on balance. I provocatively suggest the flaws not like a leftist (or some paleos) to discredit America as a concrete actual people and nation, but rather to illustrate that our legitimate existence and our duty to defend and bring honor upon ourselves and our countrymen doesn’t evaporate magically if propositional or substantive flaws exist. That is or can be a very intellectually freeing realization; and something like it is necessary in order to think clearly about what repentance entails.

”[…] now there’s a Monarchy we can both happily endorse!”

Indeed.

I thank Joel for his kind ending comments. It is always a pleasure to speak with an honest and capable gentleman. {… passing cigars and brandy to Joel … }

Mr. Auster: thanks for the further clarification on representation, that was very helpful.

Joel: I think my last post answers your latest, but if not you know where the tongs and hot irons are!

Well, I think we can both rest on our laurels till the morrow. ;-) I bid good evening to you, to Mr. Auster, and anyone else reading. It’s been quite a night.