Tagged: law

Modern tradition

1. I believe Hans Blumenberg argued that modernity is “self-authorizing” (The Legitimacy of the Modern Age); it doesn’t rely on tradition for its own justification. This “self-assertion” is expressed by Kant: “Enlightenment is man’s leaving his self-caused immaturity. Immaturity is the incapacity to use one’s intelligence without the guidance of another. . . . Sapere Aude! Have the courage to use your own intelligence! is therefore the motto of the enlightenment.” (“What is Enlightenment?” 1784). Such an argument characterizes the peculiar tradition of modernity. And this orientation continues to flummox those who see the destruction of good and holy things in every new turn of events because they construe the meaning of “tradition” to be substantive and fixed in time and place, rather than as evolving through invention and reinvention.

2. Eric Teetsel does not align proponents of same-sex marriage with the modernist project in the terms enunciated by Blumenberg or Kant. Instead, he reduces their advocacy to one aspect of the modern world: pop culture.

Advocates of same-sex marriage aren’t concerned about the logic of their arguments or the precedents they establish. Forget facts; theirs is a more powerful weapon in the era of amusement: fad. . . . T-shirts, hoodies, key chains, bracelets, necklaces, cuff links, Frisbees, mugs, tumblers, luggage tags, windbreakers, picture frames, baby bibs, rings, sunglasses, candles, magnets, calculators, blankets, beach towels, stuffed animals, pens, staplers, watches, pins, mittens, earmuffs, scarves, and—my favorite—the equality doggy poop bag holder.

While this disparaging characterization effectively trivializes the matter at hand, Teetsel fails to notice one other important “fad” in the arsenal of same-sex marriage advocacy: the 14th Amendment. The first section of the amendment was written long before Lady Gaga.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It would be helpful if someone like Teetsel would give an account of why “privileges and immunities,” “life, liberty, or property,” “due process,” and “equal protection of the laws” do not apply to a particular class of persons who appeal to these apparently authoritative phrases in their effort to achieve equality rights.

3. How should one construe Teetsel’s emphasis on the “founders” in relation to same-sex marriage? Perhaps he imagines a Taneyesque argument against plaintiffs in marriage equality cases: “When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its ‘people or citizens.’ Consequently, the special rights and immunities guarantied to citizens do not apply to them.” “It is obvious that they were not even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union.” (Dred Scott v. Sandford 60 U.S. 393 1856).

4. Beyond the question of whether the Constitution is still authoritative (and for whom), should we be convinced by Teetsel and other doom and gloomsayers who view any change in values and social institutions as “perverse”? Or should one adhere to the more sanguine judgment of Hannah Arendt?

Authority, resting on a foundation in the past as its unshaken cornerstone, gave the world a permanence and durability which human beings need precisely because they are mortals – the most unstable and futile beings we know of. Its loss is tantamount to the loss of the groundwork of the world, which indeed since then has begun to shift, to change and transform itself with ever-increasing rapidity from one shape into another, as though we were living and struggling with a Protean universe where everything at any moment can become almost anything else. But the loss of worldly permanence and reliability – which politically is identical with the loss of authority – does not entail, at least not necessarily, the loss of the human capacity for building, preserving, and caring for a world that can survive us and remain a place fit to live in for those who come after us. (“What Is Authority?” Between Past and Future, 95).