On the eve of the 239th anniversary of the independence of the United States, it is a good time to take stock of how matters stand. What is the state of its union? That state is now dominated by recent Supreme Court decisions, most importantly the decision mandating the legal definition of marriage to include same-sex relationships.
This decision should not have come as a surprise. After all, the jurisprudence has been trending in this direction for some time, and the United States is one of the last Western countries to have embraced this definition. What does come as a surprise is the lack of effective resistance. In this as in so many areas, there seems to be no “push-back” on the part of the political opposition. Granted, there is opposition among the grass roots, indeed sizeable opposition, but this opposition receives no political representation. And by political representation, I mean not simply electoral representation, but a reflection of sentiment in the institutions of public life, ranging from government to the courts to the public schools and universities.
In fact, the issue is often characterized as inevitable. To be in favor of gay marriage is to be “on the right side of history.” To be opposed is to be as retrograde as it is to be opposed to civil rights generally. It does no good to refer to thousands of years of contradictory human history, to hitherto self-evident laws of nature, to the teaching of all religions everywhere, to the teaching of the Christian church – to which the majority of persons in the United States still professes to adhere, to the teaching of the Bible. None of that matters, because “history” is on the side of gay marriage.
On the face of it, stated as baldly as that, it seems astounding that such an argument could gain the ascendancy, and so quickly. But there is no room for mincing words here: it is now “the law of the land” (so is immigration law, but some laws of the land are more equal than others) and seemingly is here to stay. And at this point, it would appear that it will be groups opposing this newly minted institution who will be fighting to survive. Because the entire machinery of Federal civil-rights legislation and policy will now be brought to bear upon those recalcitrants. Caveat ecclesia.
But the question remains: why no push-back? How could such an utterly incongruous doctrine become established as political and jurisprudential orthodoxy, with the opposition to it collapsing like a house of cards? In my view the answer is simple. But it is also unpalatable, and to many, indeed unacceptable. I have outlined this same answer before in terms of the broader jurisprudential and political trends facing the US and Western civilization, and at best have received grudging acknowledgement, at worst (to adapt Clarence Thomas’s phrase) high-tech excommunication. This time around, however, the sledgehammer blows of reality are such that another appeal to my fellow travelers’ sensibilities may not go entirely to waste.
The root of the problem is the natural rights paradigm that has been put at the heart of Western legal and political institutions since the 17th century, and which from the start was made the cornerstone of the American republic. Simply put, the document signed 239 years ago tomorrow ratified the state of affairs that would eventually produce same-sex marriage.
Yes, I realize this is an unpopular statement. It goes against the grain of the American political consensus which since the founding has been based on the well-rehearsed, “self-evident” proposition of inalienable, natural rights, given, if you will (aye, there’s the rub), by God. And an uncomfortable one, because it is assumed rather than examined, and the invitation to examination is looked upon as a threat. With everything called into question, everything up in the air, everything unsettled, indeed with a Yeatsian collapse threatening (“Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world”[1]), it would seem that if we can’t believe that anymore, what can we believe?
That is precisely the point. We need to be asking ourselves, “what can we believe?” If it is the case that this conviction is at the root of the contemporary cultural catastrophe (for it is nothing less than that) then we need to be asking ourselves if we can believe it, can afford ourselves the luxury of believing it.
For it has been a luxury, and an expensive one at that; and the bills are now coming due.
First, a short explanation of the mechanics of the debacle. Time and again, the justification for all of these jurisprudential “advances” is found in the 14th Amendment to the US Constitution. On the face of it, it seems odd that the rights-ore that the Court has mined from the Constitution, it has mined from this text. The language is standard Lockean phraseology: rights to life, liberty, and property, along with a right to due process of law in adjudicating those rights; and that these rights accrue to every American citizen, either naturalized or born on US soil. How is it that rights of such divergent import (e.g., privacy justifying a right to abortion, same-sex marriage), having nothing to do with the ones enumerated, have nevertheless been teased out of this?
It is because an enumeration of rights presupposes a mechanism of rights from which the enumerated rights have been derived; it is the mechanism which matters, standing as it does, over and above any listed enumeration and any law which might presume to contradict it. And this is what generation after generation of Supreme Court justices has divined.
What is this mechanism? The mechanism of subjective right: the individual will, shaping and determining its environment according to its wishes, for its ends, to which it is entitled. This becomes the ultimate source of law. The proper relationship of law and rights, expressed in the doctrine of objective over subjective right, so laboriously elaborated in the centuries of Christian Roman jurisprudence, was reversed in the 17th century; and that inversion, made popular by the appeal to a common humanity so as to supersede religious conflict, gave birth to the jurisprudence which in straight-line trajectory has brought us to the point we are at today, and is poised to take us far beyond. At least, until the supporting framework – a functioning social order – collapses. After all, only so much of this subjectivism can be borne.
We all believe in this mechanism. The only difference between us and progressives is the use to which we wish to put it. Classical liberals put it in the service of property rights; progressive liberals put it in the service of the pursuit of happiness. But at the end of the day, we are all liberals – we all believe in this project. Which is why classical liberals are getting their clocks cleaned by progressive liberals: the inherent logic of the mechanism favors the progressives’ progressivism.
Jefferson’s formulation already lifts the veil on this aspect of the mechanism: instead of the Lockean triad of life, liberty, and property, he put forward life, liberty, and the pursuit of happiness – this latter being an utterly unjurisprudential telos because amenable, and legitimately so, to a range of interpretations. Nevertheless, quite understandable and even necessitated in terms of the mechanism. The final paragraph of the majority’s opinion justifying its decision in Obergefell v. Hodges reads as a further elaboration of this pursuit of happiness, a paean to the Jeffersonian platitude, notwithstanding the dissenting opinion by Judge Scalia that it sounded more like “the mystical aphorisms of the fortune cookie.”
Fortune cookies tell us of the future, and this jurisprudence is rife with predictive capacity. We are headed towards a world not only in which the family as traditionally construed is doomed, but also in which the church is doomed. For the teaching of the church with regard to homosexuality is now ipso facto discrimination, soon to be classified as hate speech. We already have a presidential candidate arguing that the Bible needs to be rewritten to take into account these new realities. (News flash: “He that sitteth in the heavens shall laugh: the Lord shall have them in derision” (Psalm 2: 4).)
But there is much more in store for our country and our world. Nationhood itself is being obliterated before our very eyes, and ostensibly by the same mechanism. What else could possibly be the rationale behind the importation of entire populations of underclass citizens of foreign countries (e.g., 25% of the Mexican population)? It is more than just “cheap labor” (that panacea of our latest iteration of corporate capitalist exploiters), for with the wonders of modern trade deals, that labor can be accessed just as easily and at just as permanently low wages in their countries of origin. No, it wasn’t enough that a demographic ticking time bomb is set to go off as the baby-boom generation retires and transitions into a giant mass of non-working dependents; no, we need to import millions more of low-wage, unskilled workers better fitted to serve as a voting bloc for entitlements, forming yet another giant mass of non-working, or insufficiently-working, dependents. Just how many entitlements can our system bear? We are about to find out.
We have our rights mechanism to thank for this, because the rationale for these kinds of otherwise irrational policy choices lies precisely in the putative entitlement perceived to accrue to each individual person regardless of race, religion, sexual orientation, or shoe size. This entitlement is what government can guarantee, what gives it its raison d’être, until of course it runs out of the wherewithal to furnish the entitled with what they are entitled to according to the latest bulletin of inalienable rights.
This is what has happened with one group of highly entitled folks – the African American population. They have been promised everything, and increasingly it has become clear how little they have to show for it. But no worry, the blame can be attached squarely to, well, Republicans, or the rich, or white people generally, or the police. Let it never be made known that their champions in the public square, the Democrat party, are the same ones who are allowing the importation of mass quantities of cheap labor competing precisely for the same jobs in the same labor market as the majority of African Americans do, making it even more difficult for said African Americans to break out of the spiral of poverty and dependency. If they knew it was the Democrat party and its policy of open borders that was ensuring the double-digit unemployment of black youths, would they care? Who knows? And if they knew that all the fomenting of racial discord and antagonism that has taken place within the last year was done precisely to cover up for this other policy to flood the labor market, to divert attention from it, so as to keep the voting coalition afloat – would they care? Who knows?
What we do know is that America as we know it is on life support. Nationhood itself is on life support. The end game for the people behind these developments is the drastic curtailment of national sovereignty in favor of world government and universal jurisdiction, the better to implement universal entitlement, which now includes the right to be free from preaching about sin. America – the world’s last superpower – stands in the way of this. But so does the church. Stalin once asked derisively, “The Pope! How many divisions has he got?” Our contemporary politicians and academics and members of the power elite ask themselves a similar question. “The Christians! How many votes have they got? How many teachers in the public schools? How many professors? How many judges? How many CEOs?” etc. etc.
Here is a word to the wise: watch it. “It is a fearful thing to fall into the hands of the living God…. Be wise now therefore, O ye kings: be instructed, ye judges of the earth. Serve the Lord with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and ye perish from the way, when his wrath is kindled but a little. Blessed are all they that put their trust in him” (Hebrews 10: 31; Psalm 2: 10-12).
[1] William Butler Yeats, The Second Coming (1919).
