Get A Haircut, Punk

New at Reason: The Culture War, the dumb, lumbering beast, has emerged from its forested hiding place in the Pacifc Northwest. Jesse Walker goes in search of this legendary monster.

Comments

[Hydroman]

We don`t have enough troops left here to fight
the invading culturenistos.We`ll have to call up
the Boy Scouts and retired postal workers.
God save us all.

[joe]

The Girl Scouts will kick the Boy Scouts' ass.

[Spork]

Culture War? That seems a pretty dramatic way to phrase the distaste for evolving tastes held by the last generation. I'm pretty sure, sometime before the wheel, there were grumpy old men, sitting around a fire, saying something like this:
"Damn kids these days. Banging sticks and rocks, listen to that racket. Back when I was young, we only used the melodic tones of sticks, after all, that's real music. If they keep insisting on using those damned rocks, things will never be the same."
I've mainly noticed the futile nature of the "Culture War" in terms of pop music. Even at my relatively young age (30), I've personally seen 3 generations of music heralded as the end of society (heavy metal, rap, and grunge rock). We're still here, and music still keeps changing. Cultural Luddites are never happy enough to control their own lives, it's always that damn neighbor kid they're really worried about.

[Warren]

Sorry Jesse, no sale. You're nostalgia must be clouding your vision of 'the good ole days'. The "culture wars" raged all through the 90s. Featuring such salvos as Bennett's "Book of Virtues" and Bork's "Slouching Towards Gomorrah", and the return fire, "Sex" by Madonna as well as everything else by Madonna.

[fyodor]

Warren,

But Jesse's point is that no one really cared outside the chattering class, a limitation he implies, seriously or not, may be changing.

I'm the last to have my finger on the pulse of the common shlep, so hell if I know if he's right or not!

[Warren]

fyodor,
I too suffer from fashion autism. That's why I gave examples of bestsellers that got lots of attention from other talking heads. I don't think it's credible to claim that they were just talking to themselves.

[thoreau]

In the 1990's we had a national debate over whether blowjobs are sex. Clearly the culture wars were raging back then.

[Scott Harris]

The desire to be "left alone" that the author refers to is still prevalent. What has changed is the realization that being "left alone" is not a realistic option. Just as the Islamic terrorists brought their war to us by attacking NYC and DC, the left culture wars are bringing their war to us by employing the tyrannical power of the judiciary.

Just as in previous attacks of terrorists prior to 9/11, the US essentially played defense, prior to the cultural assault on marriage, we have been content to play defense. The proposed FMA, and future proposals limiting the power of a runaway judiciary are the equivalent of taking the war to the enemy, instead of passively resisting tyranny.

Also, just as the terrorist attacks on NYC and DC are merely symptoms of the underlying problems of Islamic culture, the gay marriage issue is only a harsh manifestation of deeper cultural problems. The terrorist problems can only be ultimately overcome by permanently changing the underlying culture of the Arab world. And the gay marriage problem can only be ultimately overcome by changing the power structure in the American legal community.

The greater offense and greater danger to America is not gay marriage; it is the concept that the judiciary are somehow more wise than the common man, and therefore have the right to change the culture by judicial edict. The elevation of the rights of the minority over the last 40 years must come to an end. The majority must reassert itself.

Those who decry the imaginary tyranny of the majority advocate a more dangerous and insidious evil - the tyranny of the minority, and the power of an unelected oligarchy. One need look no further than Baathist Iraq to see how much more evil is that type of system than admittedly imperfect democracy.

Advocates of gay marriage may indeed have their way one day. But to accomplish this purpose by twisting the Constitution for personal benefit, and by ignoring the will of the people is no less a danger to the philosophical safety of America than terrorism is to the physical safety of this nation.

The illusion that we could passively sit in our homes has been shattered. Thomas Jefferson said of the concept of Judicial Review:

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. ... their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

"... our Constitution a complete felo de se [act of suicide] [if] intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion [Marbury v. Madison], to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

Two Hundred years later, the dire prophecy of Jefferson has been fulfilled. The entire legal profession, not just the judiciary, has been corrupted. This corruption must be weeded out and destroyed. Those, like me, who cherish Federalism, must not succumb to the mirage of separation of power, because those waging the culture war on America do not respect the law.

Just as the Terrorism War cannot be won be constraining ourselves to the strictures of law enforcement, the Culture War cannot be won be constraining ourselves to the unjust edicts of a corrupt judiciary. The Gay Marriage movement is a clarion call to the majority that the law is no longer respected by those seeking to destroy our way of life.

Unelected jurists, and duly elected officials are refusing to obey and enforce the law to which they were sworn. In such an environment, the law has no meaning, and no value. And to pretend it does is to unilaterally disarm in the face of an invading army. They will not leave us alone. All that now remains is for us to take the battle to them. It is time for us to get up and begin the offensive.

Just as President Bush understood that it was not enough to simply strike back at Al Queda, we must understand that the gay marriage debate, while important, is simply a diversion. The greater battle is the power structure of government, the media, and the educational establishment. These are our sworn enemies - not because we wished them to be, but because they have so declared themselves.

[thoreau]

Scott-

What's the most logical next step in this culture war? After the FMA and whatnot?

I'm almost afraid to ask...

[Scott Harris]

Thoreau,

One of the steps is already taking place - the attempt to reign in runaway tort cases. These are cases where lawyers abuse the law in order to enrich themselves.

My suggestion is to amend the Constitution to establish some type of Legislative Review, and/or Executive Review power and to strictly define the limits of Judicial Review power. Right now, that power has been assumed by the Courts.

The Civil Rights decisions of courts in the 50's and 60's were built upon the 13th, 14th, and 15th Amendments, and the Civil Rights legislation of the 1960's. The current judicial basis for adjudicating a "right to privacy" has no such Consitutional or Legislative foundation. If the people want a "right to privacy" enshrined in the Constitution, then the proper path is to convince 2/3 of the national legislature, and 3/4 of the states to approve of that provision.

While I am personally appalled at the results of judicial overreach, the act of judicial overreach is even more offensive. The culture will evolve and change over time. And it may evolve in such a way that offends me. But with judicial tyranny, I have ZERO, nip, nada, no say whatsoever in that change.

Remember the cry, "no taxation without representation?" As it turns out, I am related to the leader of the Boston Tea Party - Samuel Adams. Taxes did not disappear once independence was gained from England. The taxes were merely the manifestation of a larger offense - namely that Colonists were not considered fully English, and not given full citizenship rights.

This current phenomenon is no different than then. Gay relationships will not go away, and many more liberal localities may give some the title of marriage. But depriving me of my right to protest that development is to deprive me of my rights as a citizen. Judges are merely men and women. They have no greater citizenship rights than I. They can lobby the legislature, and campaign for change. But they have no right to use their delegated power to cut off debate, and effectively silence their POLITICAL opponents.

[Scott Harris]

Thoreau,

The other major step is to wrest back control of the educational establishment from the Federal judiciary, and the teachers' unions. Vouchers could be a logical step.

The important point in all of this is not to violate our values by excessively restricting the rights of others. Rather it is to assert our own rights to have a voice in the process. We have a right to have an equal voice in determining the nature of our culture. And we have a right to determine what values are emphasized and taught to our children.

Dissent is NOT intolerance. Debate is NOT bigotry. But squashing dissent under PC codes, and hate-speech laws, and bypassing debate by going through the courts is nothing less than tyranny.

[joe]

"Right now, that power has been assumed by the Courts." By "right now," you mean "for the past 160 years, since Marbury v. Madison," right?

'The current judicial basis for adjudicating a "right to privacy" has no such Consitutional or Legislative foundation.' to which I reply, "The enumeration of these rights shall NOT be construed..."

[thoreau]

Joe-

It's only judicial activism when it helps the "other side." The current conservative cast on the Supreme Court makes it all particularly ironic. Liberals have plenty of opportunities to scold the Supremes for judicial activism, and conservatives can complain about liberal decisions by lower courts, completely oblivious to how ironic it is that their complaints basically mirror those of liberals.

[Scott Harris]

Joe,

Well, yeah. I thought by quoting Thomas Jefferson I made that clear that Marbury v. Madison 1803, has been the basis for Judicial Review. But unlike the other powers of government, it is not restricted by the Constitution. It should be both defined and restricted.

As far as unenumerated powers, the courts only have the right to rule on enumerated powers. All other disputes must be left to the people to decide in the legislature. The courts have no authority to "award" rights to individuals to which the majority objects.

Read the 9th amendment. Unenumerated rights are retained by the people plural, not persons singular. The Legislature is the duly recognized representative of the people plural, not the courts. The courts can only lawfully protect the enumerated right of individuals. It cannot willy-nilly arbitrarily decide what unenumerated political desires are or are not "rights."

[Scott Harris]

Thoreau,

It is true that both conservatives and liberals have allowed the courts to engage in judicial activism. The reluctance to structurally change a system that has worked so well for so long is understandable.

The point is that when mayors can publicly break the law without fear of reprisal because the judiciary agrees with the POLITICAL position of the mayor, the system has failed. As holders of office, they are usurping the law, not engaging in civil disobedience. That is why, at long last, we must address the structure of the system.

To give an example of a decision liberals hate, look at Bush v. Gore, 2000. The result of the case was correct, but the actual decision was dreadful. The Constitution, in Article II, clearly gives the National Legislature, and the legislatures of the respective states absolute authority over Presidential elections. The proper decision would have been for the SCOTUS to determine they had no jurisdiction, and also that the Florida Supreme Court also had no jurisdiction. Instead, in order to preserve their assumed power, they forced the "round" decision through the "square" hole of equal protection. "Equal Protection" is the Court's favorite hammer, and all problems end up being nails.

I wrote at the time a vehement article disagreeing with the rationale of the court. Their decision was a legal atrocity, and intellectually unsound. It would have been better to have the controversy resolved in the National Legislature, where the Constitution gives ample procedures for resolution.

I submit that the only reason Gore conceded after he initiated Court action that Bush defended against in Florida, was that because of the make-ups of the Florida legislature, and the National Legislature, he would have lost anyway. Also, the reason for the excessive bitterness is that liberals, having won through the courts power they could not have obtained by legislation, looked upon Bush v. Gore as a betrayal. The current controversy over Bush nominees to the courts are merely liberals trying to maintain their grip on judicial power.

But conservatives are no better if they simply follow the example of liberals in bypassing the people through judicial edict. It is folly to attempt to gain control of a judiciary to enforce illegitimate power. It will only increase the division, and increase the acrimony. The proper path is to severely turn back the illegitimate power of the judiciary.

But until that day arrives, liberals have no room to complain that conservatives are using the system created by liberals to turn back the tide.

[joe]

Scott, "As far as unenumerated powers, the courts only have the right to rule on enumerated powers. All other disputes must be left to the people to decide in the legislature."

Would the 14th Amendment to the Constitution, and the gender-based protections of the Massachusetts Declaration of Rights, count as legislative actions?

Cases get to appeals courts when there is a question about how to apply a particular law to a particular case. When figuring out how to do this, judges look at past precedent to guide them.

What, other than a certain subset of the outcomes, is your problem with all of this?

[Scott Harris]

Joe,

The 14th Amendment is not applicable to gay rights at all. The fallacy is that gays do not have the right to marry. In fact gays are not restricted in any way in their right to marry, as marriage is defined between the sexes. Also, gay people HAVE married specifically to get the legal protections offered by marriage. But they have married people of the opposite sex.

As for equal protection, I also do not have the right to marry another man. So the law is being applied equally. What is being debated is whether the legal definition of marriage should be changed to include same-sex relationships. That is a political question, not an equal protection issue.

As for the Massachusetts Constitution, there is no violation unless you consider gay man, or gay woman to be a separate gender identifier. All Massachusetts citizens have the right to marry regardless of gender.

Marriage has always been defined as a cross gender relationship, and is recognized in society because of its sociological significance, not any religious connotations. The feelings of the marriage participants is beside the point as far as society is concerned.

The greater societal interest in marriage is the perpetuation of the society through child-birth and child-rearing. To include same-sex relationships within the definition of marriage is to destroy both the meaning of marriage, and the societal rationale for providing special protections for it.

If marriage is only about the self-gratification of the participants, then it is no different than friendship. What specific interest does society have in friendships? If marriages are only about property rights and inheritance laws, then how do they differ from corporations, or trusts?

Marriage is a biological, social relationship created by nature for the specific purpose of the perpetuation of the species. Government did not create marriage, and cannot arbitrarily change its meaning. (Neither can religion by the way.)The field of family law is simply society's recognition of a natural phenomenon which is, in fact, required for the survival of the society itself, because without the next generation, society ceases to exist.

But the point of this thread is not to debate the desirability of same-sex "marriage." The point is that the method for deciding these issues has been subverted. Gay marriage advocates have the right to make their case to the public, and have the public accept or reject it. I should also have the right to make my case against it. The courts have no right to force their political viewpoint on society.

It is also a fallacy to say I am homophobic or bigoted against gays because I oppose gay marriage. I also oppose giving the protections of marriage to simple friends. But I am not bigoted against friendship.

To get a clearer idea of my argument against gay marriage, go to the Reason article, "Equal Rights for Whom?"

[Scott Harris]

Joe,

Fundamentally, those advocating for gay marriage believe that marriage is about the feelings and desires of the participants in marriage, i.e. marriage is about sex.

Those who want to protect traditional marriage believe it is about the natural result of heterosexual sex, i.e. children. It is a fundamentally different point of view.

Throughout the history of the world, if a woman had habitual sex with a man, as night follows day, she was going to have children unless there was some biological defect. Prior to the widespread use and effectiveness of contraceptives, this wouldn't even be an argument. Our ability to thwart nature through the use of contraceptives has not changed the fundamental characteristics of nature.

Question: If we could reproduce ourselves in some other way, would sex even exist?

The very necessity of laws outlawing gender discrimination is a de facto admission that the genders are fundamentally different. The general prohibition against gender discrimination is utter nonsense. Shall we put urinals in all women's restrooms? Shall we require the installation of maxi-pad vending machines in men's restrooms? Ridiculous.

The law cannot ignore the patently obvious - men and women are different. The question is not whether discrimination between the sexes is legal, it is when it is legal. This is clearly the domain of the legislature, not the courts. Courts can unilaterally declare gravity to be illegal, but they cannot suspend the laws of gravity by judicial edict.

As a father, I cannot treat my three children equally because to do so would be disrespectful of who they are individually. A certain amount of discrimination is required in order to be respectful of the specific identity of the individual.

[joe]

Scott, that's all very interesting. But my point was not to reenact the gay marriage argument. The judges applied the law and constitution in their judicial review capacity. They based their decision on the written constitution, and the body of case law that has developed, just exactly as judges are supposed to.

Your lengthy screed on the merits of the issue just demonstrates that your beef is not with the existence of judical review, but with the fact that a court ruled in a way you didn't like.

[Scott Harris]

Joe,

My issue is with both judicial review and gay marriage. But unconstrained judicial review is the disease. Gay marriage is just the symptom.

[Scott Harris]

Joe,

Did you read my quotation of Thomas Jefferson, or not? Did you read my discussion of Bush v. Gore, or not? Gay marriage is just the latest of many manifestations of a judiciary run amok. I am perfectly willing and able to argue the issues on merit. But I should have the right to make the argument. What I wrote was not a screed. It was a reasonable argument on the merits of the issue. You are welcome to ignore it, just as the courts are doing. I am not a lawyer qualified to argue before the courts. This should not relegate me to class B status citizenship. From the outset of this country, there has been an argument about whether to trust the voice of the common man. That argument goes on, unfortunately.