WHAT'S IT TO YOU?

I have made the point in this blog that at the beginning of our republic, the prevailing mental construct that, more than any other construct, guided our views concerning governance and politics was traditional federalism. Its dominance ended in the post World War II years when the natural rights construct ascended to dominance. We don't often, these days, hear in public discourse expressions of thought based on the ideas and ideals of the older version of federalism. Justice Antonin Scalia, the other day, expressed an opinion which reflects this more outdated thinking. Replying to a student's question about why the justice had equated laws criminalizing sodomy with laws against bestiality and murder, the justice said, “I don't think it's necessary, but I think it's effective. … It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd' … If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? … I'm surprised you aren't persuaded.”

To make my point in this posting, I have to make an assumption. The assumption is that Scalia is referring to moral beliefs that are based on religious doctrine. I make this assumption because I am not aware of any other source that would reject homosexuality on the grounds it is immoral. As such, and since he was referring to state law, I find this argument, on its face, to be an expression of traditional federalist thinking.

Our early political development, as I have pointed out, was heavily influenced by congregational religious traditions. Starting with the Puritans, people banded together to form our most basic governmental arrangements mirroring the process by which they organized their churches. That is, they came together and through a covenant promised each other a set of binding provisions which, among other things, set up a government, a process of governing, a list of goals, and an expression of rights. The format can first be found in the drawing up of the Mayflower Compact and has its most encompassing form in the writing of the United States Constitution. The basic idea is that either individuals or political entities gather and see that their mutual benefit is best advanced by them joining in this manner.

A recurring question that results from organizing in this fashion is how much self rule the parties retain within the resulting union and how much is handed over to the political entity that's formed. This basic area of concern has been with us since the beginning, was central in our political conflicts – including the concerns that led to us engaging in a civil war – and is still with us today. Individual, federated partners, no matter how clear the language of the agreement is or was, when relevant issues arise, will place their support with the notion that power lies predominately either with the members of the union or with the union itself.

There will be those who place their support for retention of power with the partnering members and those who will support the union's claim of power. There have been historical incidences where, given different issues, we have had individuals who in debating one issue, argued for a strong union and with another issue, argued that power should be retained by the members of the union. The example of James Madison comes to mind. Traditional federalism places the emphasis on the members, especially when it comes to moral questions. Liberated federalism, the mental construct this blog has promoted, is not so readily disposed to this older view.

I have given the name, liberated federalism, to a view or position that evolves from the earlier form of federalism. Theoretically, we can find its origins with the founding fathers. It was already significantly a part of their theorizing when they went about forming our national government in 1787. But the bit of law that would begin the process that would undermine the parochial bias of traditional federalism was the Fourteenth Amendment to the Constitution.

Its ratification in 1868 did not provide a clear delineation between our preference for one view over the other view. It would take over a hundred years – and the influence of a completely different construct, the natural rights view – to undo the theoretical force that traditional federalism had over our common view of governance and politics. Remember that in that earlier view, as I indicated above, religion and localism had strong influence on what was seen as constitutional. This view assumed that local populations were highly homogeneous. It assumed that a given locality would have most of its residents attending the same denominational church, such as Lutheran or Baptist. Under such social conditions, local communities could express moral positions without offending people. Diversity was tolerated, but under the following formula: yes, you have a right to be what you want to be, but if that way is different, not here; you can be what you want to be over there. Here, we are this way and if you want to live here, you have to act accordingly and at least follow what we believe to be good and proper. But of course, our social development did not cooperate with this formula. Very early on, diversity became a disruptive factor. After all, we adopted the national motto, e pluribus unum.

Even by the time our constitution was written, a lot of this assumed social character of our communities was being challenged as we were already becoming more diverse. Our nation would eventually experience huge immigration waves of Germans, Irish, Italians, Eastern Europeans, Chinese, Japanese, Latin Americans, and others. Today, you can go to the most traditionally leaning communities and you will find storefronts with Spanish words all over their facades. Take a car trip some day through small towns in Florida's panhandle and don't be surprised if you need a Spanish-English dictionary. The whole assumption behind Scalia's comments is that moral proclivities of local communities, to the degree his comments would have us believe they exist, simply don't. At least they don't to the extent that one can justify legal sanctions on behavior based on religious moral claims. We are too diverse for this kind of dogmatic view regarding our moral thinking. Yes, we are still concerned with morality. But, when it comes to legal restraints, especially when such restraints are aimed at prohibiting behaviors motivated by natural drives (like the sexual drive), one needs not religious reasoning but secular reasoning.

Today, natural rights thinking supplies us with a relatively simple notion that allows for a more tolerant view of divergent behaviors or beliefs. It simply holds that if a belief or behavior doesn't – on a reasonable basis – materially or emotionally hurt someone else, then a person has a right to believe or act the way he/she wishes. Applying this standard to the specific topic Scalia commented on – homosexuality – what someone does in his/her bedroom that doesn't hurt others is not the concern of others and the law has no legitimate standing to ban it. But let us say that someone kills someone else in his or her bedroom. Well then, applying a Kantian notion, what if everyone behaved that way?¹ Then anyone's life is readily in danger. Murder does not have to have a religious basis for it to be a legitimate subject for legal prohibition. On the other hand, by any secular standard, someone engaging in some non-harmful sexual behavior that doesn't pose any danger to others is, therefore, not subject to sanctions based on secular grounds.²

The problem is that by adopting a natural rights view, we lose the communal sense of a locality. We lose all sense of an “us” and, consequently, everyone is left in an extremely individually isolated social milieu. We are encouraged to view our fellow residents as just others and, except for close friends and family, we lack kinship or emotional ties to others.

But we can't seem to totally accept such a view. We just experienced watching the Northeast being battered by a huge storm. We see in the news accounts about how large sections of communities have been seriously damaged and the lives of the people profoundly disrupted. The level of physical damage and resulting heartache affects most of us emotionally. Those are our fellow citizens and the recent 12/12/12 Concert with the level of worldwide donations the concert solicited gives testimony to the fact we, at least many of us, are prone to caring not just for fellow citizens, but fellow humans. And within those areas during and immediately following the storm, we hear of selfless, courageous acts by neighbors who literally saved the lives of others and otherwise ameliorated the suffering they saw around them. To what degree they individually hold tolerant attitudes of diverse cultural mores and customs, of course, is not asked of such people in such situations. But what we can say is that we find such incidences of selflessness not only admirable, but reflective of our nature. And as such, while we might see the natural rights view as sort of a minimal way to see how we should deal with one another, we tend to yearn for more personal and interlocking relations.

We often might have natural defenses against those we don't know and with whom we have no relationship. But, when we live in communities and there exists a sense of partnership, we become emotionally involved. Given the choice, most of us seek such relationships.

These preferences encourage a federal bias, a bias to allow ourselves to enter federated arrangements. In modern life this may become more difficult and this blog has traced some of the social forces that act in opposition to more communal ties. I believe that one of the reasons for the difficulties of establishing and maintaining communal ties is our bifurcated history between the mores associated with our natural rights perspective and our traditional federalist perspective. I don't usually do this, but let me share what I found in a study I conducted.³ I asked a number of high school students in three different types of communities – rural, semi-urban, and urban – what type of strategy they would favor if confronted with different problem situations. One problem was, for example, in deciding vacation plans, what type of decision-making arrangement would be preferable. One choice was a federated – shared decision-making – arrangement. While this doesn't relate directly to the situation being considered in this posting, it does give us some insight. To significant levels, the students chose the federated option as opposed to arrangements that rely on one person deciding, rely on expertise, or rely on everyone doing his/her own thing. One can speculate that such a choice reflects the desire for the kind of interdependence upon which a community is built.

So, we are left with a tension – the desire for community and the desire to be left to our own business. Our history, as a nation, has led us to this point: we seem to have an uneasy accommodation between the two outlooks with the latter having a virulent default status. I don't believe a revival of a construct, traditional federalism, that was unable to meet the demands of a changing social reality, will be helpful. But, can we totally divorce ourselves from a view that served as the basic foundation for our constitution? Do we want to stray so far afield from our original ideas and ideals which were defined by the congregational model that got us started? The recent communal examples in the Northeast suggest we don't. On the other hand, looking around, I can hear some people thinking, please don't impose your personal lifestyle choices on me or anyone else. We can be caring neighbors without that; we can be functioning partners with a reasonable respect for who each of us is.

1You might ask about the victim in the bedroom. Of course, one might be concerned with his or her fate, but here I am only commenting on a minimal basis by which one would consider what can be considered legal behavior as opposed to illegal behavior. The discussion here assumes that each member of the social arrangement has no emotional ties with any other member. Of course, this isn't the way things are. We do care for others and this aspect of reality is a basis for criticizing the natural rights construct. 

 

2The secular case against bestiality, on the other hand, is more complicated, but there are secular grounds to ban it.

3Gutierrez, R. (2005). The predisposition of high school students to engage in collective strategies of problem solving. Theory and Research in Social Education, 33, (3), pp. 404-428.