Posted on 06/08/2005 12:26:29 AM PDT by Liberty Wins
America's "Europe problem" and Europe's "America problem" have been staple topics of transatlantic debate for the past several years.
To put the matter directly: Europe, and especially western Europe, is in the midst of a crisis of civilizational morale. The most dramatic manifestation of that crisis is not to be found in Europe's fondness for governmental bureaucracy or its devotion to fiscally shaky health care schemes and pension plans, in Europe's lagging economic productivity or in the appeasement mentality that some European leaders display toward Islamist terrorism. No, the most dramatic manifestation of Europe's crisis of civilizational morale is the brute fact that Europe is depopulating itself.
Europe's below-replacement-level birthrates have created situations that would have been unimaginable in the 1940s and early 1950s. By the middle of this century, if present fertility patterns continue, 60 percent of the Italian people will have no personal experience of a brother, a sister, an aunt, an uncle, or a cousin;[1] Germany will lose the equivalent of the population of the former East Germany; and Spain's population will decline by almost one-quarter. Europe is depopulating itself at a rate unseen since the Black Death of the fourteenth century.[2] And one result of that is a Europe that is increasingly "senescent" (as British historian Niall Ferguson has put it).[3]
When an entire continent, healthier, wealthier, and more secure than ever before, fails to create the human future in the most elemental sense-by creating the next generation-something very serious is afoot. I can think of no better description for that "something" than to call it a crisis of civilizational morale. Understanding its origins is important in itself, and important for Americans because some of the acids that have eaten away at European culture over the past two centuries are at work in the United States, and indeed throughout the democratic world.
READING "HISTORY" THROUGH CULTURE
Getting at the roots of Europe's crisis of civilizational morale requires us to think about "history" in a different way. Europeans and Americans usually think of "history" as the product of politics (the struggle for power) or economics (the production of wealth). The first way of thinking is a by-product of the French Revolution; the second is one of the exhaust fumes of Marxism. Both "history as politics" and "history as economics" take a partial truth and try, unsuccessfully, to turn it into a comprehensive truth. Understanding Europe's current situation, and what it means for America, requires us to look at history in a different way, through cultural lenses.
Europe began the twentieth century with bright expectations of new and unprecedented scientific, cultural, and political achievements. Yet within fifty years, Europe, the undisputed center of world civilization in 1900, produced two world wars, three totalitarian systems, a Cold War that threatened global holocaust, oceans of blood, mountains of corpses, the Gulag, and Auschwitz. What happened? And, perhaps more to the point, why had what happened, happened? Political and economic analyses do not offer satisfactory answers to those urgent questions. Cultural-which is to say spiritual, even theological-answers might help.
Take, for example, the proposal made by a French Jesuit, Henri de Lubac, during World War II. De Lubac argued that Europe's torments in the 1940s were the "real world" results of defective ideas, which he summarized under the rubric "atheistic humanism"-the deliberate rejection of the God of the Bible in the name of authentic human liberation. This, de Lubac suggested, was something entirely new. Biblical man had perceived his relationship to the God of Abraham, Moses, and Jesus as a liberation: liberation from the terrors of gods who demanded extortionate sacrifice, liberation from the whims of gods who played games with human lives (remember the Iliad and the Odyssey), liberation from the vagaries of Fate. The God of the Bible was different. And because biblical man believed that he could have access to the one true God through prayer and worship, he believed that he could bend history in a human direction. Indeed, biblical man believed that he was obliged to work toward the humanization of the world. One of European civilization's deepest and most distinctive cultural characteristics is the conviction that life is not just one damn thing after another; Europe learned that from its faith in the God of the Bible.
The proponents of nineteenth-century European atheistic humanism turned this inside out and upside down. Human freedom, they argued, could not coexist with the God of Jews and Christians. Human greatness required rejecting the biblical God, according to such avatars of atheistic humanism as Auguste Comte, Ludwig Feuerbach, Karl Marx, and Friedrich Nietzsche. And here, Father de Lubac argued, were ideas with consequences-lethal consequences, as it turned out. For when you marry modern technology to the ideas of atheistic humanism, what you get are the great mid-twentieth century tyrannies-communism, fascism, Nazism. Let loose in history, Father de Lubac concluded, those tyrannies had taught a bitter lesson: "It is not true, as is sometimes said, that man cannot organize the world without God. What is true is that, without God, he can only organize it against man."[4] Atheistic humanism ultramundane humanism, if you will-is inevitably inhuman humanism.
The first lethal explosion of what Henri de Lubac would later call "the drama of atheistic humanism" was World War I. For whatever else it was, the "Great War" was, ultimately, the product of a crisis of civilizational morality, a failure of moral reason in a culture that had given the world the very concept of "moral reason." That crisis of moral reason led to the crisis of civilizational morale that is much with us, and especially with Europe, today.
This crisis has only become fully visible since the end ofthe Cold War. Its effects were first masked by the illusory peace between World War I and World War II; then by the rise of totalitarianism and the Great Depression; then by the Second World War itself; then by the Cold War. It was only after 1991, when the seventy-seven-year-long political-military crisis that began in 1914 had ended, that the long-term effects of Europe's "rage of self-mutilation" (as Aleksandr Solzhenitsyn called it) could come to the surface of history and be seen for what they were-and for what they are. Europe is experiencing a crisis of civilizational morale today because of what happened in Europe ninety years ago. That crisis could not be seen in its full and grave dimensions then (although the German general Helmuth von Moltke, one of the chief instigators of the slaughter, wrote in late July 1914 that the coming war would "annihilate the civilization of almost the whole of Europe for decades to come"[5]). The damage done to the fabric of European culture and civilization in the Great War could only been seen clearly when the Great War's political effects had been cleared from the board in 1991.
It is also possible that on occasion some judges would take the moral guidance of their religion to areas where political law should rightly prevail. But, as I mentioned earlier, if they do so and contribute to an intolerable amount of anarchy, then they would be violating the moral law as well. Since typically the decision to follow one's conscience is a career-ending one, I would not worry that the legal system would get destabilized to the point that more harm than good is done.
I understand that these boundaries are not precise, and that is because we are a society of men. You seem to think that it is possible to use the idiosynchratic American model of constitutional law and two-tiered judgeships, those that deal with constitutionality and those who deal with deciding the actual cases, to create a society of computer programs that interpret the Constitution with robotic precision and arrive each time at morally valid decisions. You may even, post-factum, backfill the necessary constitutional scholarship to "demonstrate" that if only the judges followed the Constitution, Dread Scott would not have been law, or Roe v. Wade would not have been law. But the empirical historical fact remains that it took courageous judges' violation of their oath of office to take sides with the moral law and not with the constitutional law as they at the time understood it. It will take similar courage from a future Supreme Court nominee to overturn Roe v. Wade, a courage I have not seen so far in this empty suit #2 they've been dragging along lately.
I think we have strayed far off the topic of the cultural climate of Europe. How familiar are you with Spooner's essays on jury nullification? I thinkI'll post something from him later.
Don't disagree with respect to those areas mentioned except for abortion. A lower court judge can of course rule "against" abortion in unsettled areas within states such as age of consent, parental or spousal involvement, partial birth, waiting periods, etc. But he cannot rule against abortion per se. If he cannot rule with the Constitution (as it has been interpreted by the USSC), he should simply recuse himself from the case. A judge (or any official for that matter) should never be required to set aside his own moral code, but he should not put himself in a position where that code conflicts directly with the responsibilities he has undertaken and taken an oath to uphold.
It is also possible that on occasion some judges would take the moral guidance of their religion to areas where political law should rightly prevail. But, as I mentioned earlier, if they do so and contribute to an intolerable amount of anarchy, then they would be violating the moral law as well. Since typically the decision to follow one's conscience is a career-ending one, I would not worry that the legal system would get destabilized to the point that more harm than good is done.
What I am saying is that in almost all cases, he has the "wiggle room" to stay out of the fray. If he instead chooses to enter the fray, then he has violated his oath of office and should be disciplined or removed from office. No good is done when a judge or official defies the Constitution or laws emanating therefrom to comply with some moral code that may or may not be shared with others who come under the protection of our Constitution. It's not enough to measure the amount of harm done, but simply to recognize that harm is in fact done.
You seem to think that it is possible to use the idiosynchratic American model of constitutional law and two-tiered judgeships, those that deal with constitutionality and those who deal with deciding the actual cases, to create a society of computer programs that interpret the Constitution with robotic precision and arrive each time at morally valid decisions.
That might be ideal, but of course not feasible. We are not discussing slight variations. We are discussing whether a judge has the right to defy the Constitution if he sees a moral imperative to do so. It is insufficient merely to delineate those areas where you personally would agree, such as abortion, gay marriage, etc. Because once you do, then you also permit those with moral codes that differ from yours to do the same. That is my argument, and it is far from a computer model. It opens up almost any area for judicial activism, including education, welfare, marriage and divorce, environment, and on and on. All of those areas involve personal as well as public moral interests. The public interests may clearly conflict with personal interests. Also many of those are issues of interest to the left. Nor can you write them off so easily by attaching a liberal label to them. They absolutely involve moral issues! Judicial activism involves one of two courses of action. The first is to read something into the Constitution that was neither intended nor implied. The second is to create legislation to right a wrong. Neither is the responsibility nor power of the judiciary. Whether it be for Christ or Allah, it is wrong.
You may even, post-factum, backfill the necessary constitutional scholarship to "demonstrate" that if only the judges followed the Constitution, Dread Scott would not have been law, or Roe v. Wade would not have been law.
I would likely make the case that prior to the 13th and 14th Amendments, Dred Scott made some sense, that the Constitution did not distinguish between a slave and other property. But I will at the same time argue that Roe was a completely political USSC decision and was constructed out of whole cloth, to create a right that was neither included nor implied in the Constitution.
But the empirical historical fact remains that it took courageous judges' violation of their oath of office to take sides with the moral law and not with the constitutional law as they at the time understood it. It will take similar courage from a future Supreme Court nominee to overturn Roe v. Wade, a courage I have not seen so far in this empty suit #2 they've been dragging along lately.
With respect to Scott, this was a logical if immoral decision, and I suspect took little courage. As for Roe, I'm not sure about courage, but it took a lot of audacity for sure. To find a woman's right to privacy somehow secretly embedded within the Constitution while ignoring the possibility of the unborn child being a "person" spoke only for the political imperatives of the time. Remember the USSC is beholding only to the Constitution, while lower courts are bound by previous decisions as well as the Constitution. The idea of expanding the interpretation of the Constitution to encompass ideas never contemplated by the founding fathers was the brainchild of the Roosevelt court that he virtually created just for that purpose. You'd best hope your empty suit #2 understands that and helps to move the court back where it belongs, even if he fails your test of Christianity first, Constitution second.
I think we have strayed far off the topic of the cultural climate of Europe. How familiar are you with Spooner's essays on jury nullification? I thinkI'll post something from him later.
Well if you're referring to the same Spooner who felt that jury nullification was an important part of the legal process because it permitted justice, then I've not read his essays but know of him. I was on a thread a year or so ago involving jury instructions given in California which would basically permit jury nullification. I don't recall the issue, but suspect it was a Christian. I took the position that he should have been immediately fired, but it was not the most popular sentiment. There was one Freeper who was a Libertarian. His position was that in no case would he ever as a juror find guilty anyone charged with weapons, drugs or tax evasion crimes. Another expressed sympathy for those charged with murder and property destruction involving abortion clinics and doctors.
One state, Indiana actually permits juries to look at the law itself when judging a case. Of course, at the time that was put into the Indiana constitution, I believe the state house was under the direct control of the KKK.
Obviously, you can guess my position on jury nullification. No true conservative could possibly approve of its use.
The Spooner in question is Lysander Spooner (not Benjamin Spooner who invented eponymous wordplay). He proved to my satisfaction that jury nullification is a cornerstone of our past freedoms. Naturally, the state used a lot of power to obfuscate the issue.
For more than six hundred years-that is, since Magna Carta, in 1215--there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their light, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law.Unless such be the right and duty of jurors, it is plain that, instead of juries being a "palladium of liberty"-a barrier against the tyranny and oppression of the government-they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
Both abortion and feminism grew out of the socialist "Suffragette" movement of the early 20th. Century.
but no less unfortunate -> but no more unfortunate
Well, you could not have made a better case for the lunacy of the 9th Circuit. It does change the whole concept of the separation of powers. I think we can actually improve on that somewhat. Let's take the Executive Branch for example. If it's alright for a judge to rule with his conscience, why shouldn't a government official be able to do the same? If he finds the law morally objectionable, merely ignore it! As I've said before, another name for that is anarchy.
to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law.
As I indicated earlier, no true conservative could possibly support such nonsense. Jury nullification of course freed OJ from an obvious murder. For about a hundred years after the Civil War, it was used to free KKK members charged with a host of crimes not limited to murder. By Spooner's definition, almost anyone could be freed by looking at the "justice" of the law itself and the moral intent of the perp. Almost every environmental crime involves someone whose moral intent could be considered consistent with a social justice agenda. Even the suicide bombers have a social justice agenda.
In modern times, I'm not aware of many attempts to "guide" a jury in this direction, even by the defense, as it would be disallowed by the judge. A juror takes an oath just as anyone else involved in the legal system. Just as I've said before, if a juror cannot deal with the broken law itself, say so. He has no right to lie about it and sneak onto the jury just to do his own personal damage to the legal system.
So far, what I think you propose is that our Constitution and our framework of federal and state statutes are meaningful only if judges, officials, jurors, etc feel like supporting them. Otherwise, no one has any particular legal or moral responsibility to anything other than his own conscience. Perhaps it's time to get away from that pesky oath:
To protect and defend the Constitution of the United States, So help me God.
You advocate a modernist perversion of the common law justice system, that is designed to benefit the overarching state at the expense of individual freedom. Youi may be correct that given our cultural decline, it will not work like it worked for hundreds of years in the Anglosphere. Which is why Europe is dying, and we are not far behind. Constitutionalist robotics will not save us.
Yup, why would any sane man enter into a relationship with a woman when she has all the power and he is almost guaranteed to get screwed. He will lose his children, his home and most of his pay check the moment she decided she has "had it" with him. Uncle sugar daddy will see to her every need and he will be lucky to avoid jail.
I suppose a discussion of the history of common law would be better suited for another thread. However, suffice it to say that the very basis of common law was precident. Judgements made on new issues created a precident for future decisions. I believe that is what I advocated in my posts. It's hard for me to consider such trivial matters as oaths of office, common law precident, separation of powers, an originalist judiciary as modern perversions. Nor can I look on efforts to prevent religious and liberal attempts to manipulate our fragile but wonderfully planned out republican system of government and laws as constitutional robotics.
It does seem a bit humerous that when an ideology wants to see certain changes in the judiciary that are not constitutional, it's the moral and right thing to want. But when confronted with another ideology that wants changes to support their perspective, it's decried as unAmerican by the first ideology. But they will both go after the pervert who believes both should butt out.
Yes, let us adjourn to another thread. Great discussion, thank you.
Precendent is something I respect very much, but precedent is not impervious to moral judgement the way you construe constitutionality to be.
The two-century period of forebearance toward civilian populations seems to be more an artifact of the military professionalization and tech level characteristic of the 18th-19th centuries. It doesn't seem to result from religious ideology -- if anything, it was a reaction against the massacres driven by such ideology during the Thirty Years' War.
Enjoyed it. Take care.
You contradict yourself. Obviously, a widespread practise of breeding more people and living an materially ascetic lifestyle would send unemployment soaring.
A judge has no authority to act in his own person, but only as an agent of the law -- if he attempts to act beyond the scope of the law, he is simply a clownish figure in a funny robe whose pronouncements need be taken no more seriously than those of the pathetic lunatics living in the streets.
Married women entering the workforce create upward pressure for unemployment, because they take a job otherwise available for another breadwinner. You might argue that it is a static model and that as women engage in make-work, -- which is what their "work" typically is, --- they also create employment opportunities; you might also argue that consumer economy generates jobs, but there is no contradiction in my statement that you cite.
That is right, and I advocate that the judge, when following the moral law, should step outside of his formal authority.
You contradict yourself -- to deny jury nullification is to compel the juror to set aside his moral code. (I am assuming that you are not taking the absurd position that individual moral judgment is a prerogative of "officials" alone, and denied to the common herd.)
Or, to put it more honestly, you are advocating that he engage in solicitation of criminal assualt (by setting the police on the loser when the law does not in fact empower him to do so) and a fraud (by pretending that the law says what it does not).
Not at all. Consider anarchy. There is no state and no law but the moral law and the individual rights. The judge follows the moral law and sends the enforcer after Steve. It means, Steve is guilty of some violation of rights. The judge used defensive force against Steve's aggression.
Now, you are right, if the judge followed the moral law abd violated the man-made law, then indeed it is incumbent on him to say so. It would be fraudulent to pretend that his decision was based ont he man-made law when in fact it was not. I did not imply anything different, did I?
You have jumped into a lengthy discussion that has evolved over quite a few posts. But that's alright. Let me clarify the position I was framing. No contradiction at all. As for the judge, what I said was that if his personal moral code (abortion) conflicted with established law, and he could not rule in favor of the law, then he should simply recuse himself from the case. As for the jury nullification issue, I believe I explained my position in post 126. I find no contradiction as I expect both the jurist and the jurors to comply with their sworn duties which is to uphold the Constitution and the laws emanating therefrom. If they cannot do so without violating their personal moral codes, they must not remain in the particular position.
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