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Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Soul, Self, and Society
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Monday, November 30, 2015
Soul, Self, and Society
Guest Blogger
Ed Rubin With a little less than a year to go until Election Day, 2016, the campaign for the Presidency and control of Congress is more that heating up -- it is already in full fever. Having been treated to five full debates on the Republican side, and three on the Democratic side, with more to follow, the contours of the coming campaign are becoming clearer, even if the identity of the presidential candidate, at least for the Republicans, remains in doubt. In a recently published book, Soul, Self and Society: The New Morality and the Modern State (Oxford University Press 2015), I try to explain why the two parties line up the way they do, at least on domestic issues. My suggestion is that our society is undergoing a truly momentous social transformation -- the transition from one moral system to another. The essence of such a transition is that some members of the society will remain loyal to the older morality, while other members will embrace the new one. No one will have any trouble identifying which of the two political parties are aligned with each of these positions. What I attempt to explain in the book is why the issues cluster as they do, and why they arouse such intense reactions, even when their direct effects are limited. To take just a few examples, the scope of federal economic regulation is entirely unrelated to same sex marriage, and yet people's positions on these issues are strongly correlated. Funding for Planned Parenthood represents an almost invisibly small portion of the federal budget, and abolishing the death penalty would only mean that a few dozen people, rather than having their lives terminated, would now be able to spend the remainder of their time in prison. Yet these issues arouse towering passions and often influence the way that people vote. Somewhat surprisingly, neither the traditional morality that is currently declining nor the new one that is displacing it has a generally accepted name. In the book, I describe the first as the morality of higher purposes and second as the morality of self-fulfillment. The morality of higher purposes began to develop in the eleventh and twelfth centuries, as the decline of central governments in the Western World (the process that led to feudalism) was gradually reversed. At the same time, the Christian religion, which had achieved dominance by adapting itself to the sensibilities of Early Medieval warrior chieftains, became increasingly more spiritualized. The system of morality that evolved in conjunction with these developments maintained that moral action in the political sphere consisted of serving the king, or the state, and moral action in the personal sphere consisted of striving for salvation in the afterlife. The morality of self-fulfillment is the product of the previous two hundred years, the crucial turning point being the late eighteenth century. It maintains that the government should serve the people's needs and that moral action in the personal realm is to follow rules that enable each person to live the most fulfilling or rewarding life that he or she possibly can. One reason why two such basic principles have thus far gone unnamed is that most observers have not interpreted the current turmoil as a transition between two conflicting moralities, but rather as the demise of our one prevailing moral system. From this perspective, the old morality needs no further name because it is regarded as morality itself, while the new morality deserves no name because it is not morality at all. This view, somewhat surprisingly, is not only prevalent among those who bemoan the old morality’s decline, but also among those who welcome it. But this is not an accurate description. In the book, I categorize moral rules (for convenience) as fitting within three concentric circles: one's relation to oneself, one's relations with people one knows, ranging from intimates to friends, and one's relationship to the larger society. Within each area, the new morality of self-fulfillment imposes as many obligations on individuals as the morality of higher purposes, but they are distinctly different ones. To begin with the self, the morality of higher purposes viewed human in general as occupying one position in the Great Chain of Being, and society as reiterating this divinely ordained hierarchical structure. It thus demanded that people carry out the responsibilities defined by their established roles within society, and that they should insist that others do the same. According to the morality of self-fulfillment, each person constructs a personal experience, or narrative, that provides for a fulfilling life, and people are morally require to avoid interfering, and possibly to encourage, these individual efforts. Thus, the old morality’s general norm produced the particular assertion that an adult woman’s role is to raise her children and assist her husband. The new morality insists that all people, regardless of their gender, should choose the relationships and career that they find most fulfilling. It is a measure of the speed with which the new morality is taking hold that few people would fully and openly subscribe to the old one in this area, although one sees reverberations of it in the statements of more extreme social conservatives. With respect to intimate relationships, the morality of higher purposes holds that sex is only justifiable as a means of procreation; abortion and homosexuality are thus regarded as immoral. In addition, it demands that this procreative sex be limited to a monogamous relationship in the interest of social stability (with allowances for male dalliance with women of lower social status). The morality of self-fulfillment also includes a variety of prohibitions on this subject. It condemns interference with a woman’s control of her body and with the individual's desire to marry whomever he or she desires. In addition, it demands that sex be based entirely upon consent; thus marital rape, a concept unknown to the morality of higher purposes, becomes a serious offense under the new morality. These differences fuel current political debates, although the new morality has become unassailable on certain more specific issues, such as sexual relations between grown men and early teenage girls. The morality of higher purposes accepted such relationships as long as the partners were married; the new morality categorically condemns them because someone so young cannot truly give consent, and because a relationship of that sort is likely to impair her ability to have a fulfilling sex life in the future. In terms of one's relationship to the larger society, the old morality regarded poverty, and low social status generally, as a permanent condition, part of God's established hierarchy. The moral obligation was to give private charity to alleviate extreme suffering without making any effort to remedy the basic situation. As time went on, Protestantism altered this view, and the poor were regarded as having merited their position by their failure to perform their social obligation of gainful employment. This reduced, if not eliminated, the prior obligation to be charitable. According to the new morality, all members of the society should have the opportunity to live a fulfilling life. To do so, they not only need to be free of legal or social restrictions, but must also have their basic needs met, namely subsistence, housing, health care and education. The moral obligation to all members of the society is to vote for political leaders who favor social welfare programs that provide these necessities to disadvantaged members of the society. As can be seen from these descriptions, my view is that a society's morality is directly and intrinsically connected with its means of governance. That is not because one influences the other in any simple or unidirectional way, but rather because both are systems for controlling, channeling and inspiring human behavior that interact continually with each other over time. During the Early Middle Ages, where I start the story in Soul, Self and Society, the collapse of centralized authority led to a system I didn't need to name because scholars have already characterized it as a morality of honor. The morality of higher purposes that followed was caused, and helped to create, the centralizing monarchies of the High Medieval and Early Modern periods. The transition to High Modernity in the late eighteenth century was signaled by the development of new social attitudes and the advent of a new mode of governance-- the administrative state. With the problem of maintaining internal order largely solved in Western nations, modern people, aided by the growth of democracy, now demand that the state provide them with the services and protections they need to lead fulfilling lives. They demand workplace safety laws, environmental laws, investor and consumer protection laws, public education and, most recently in the U.S., health insurance. The true slogan of contemporary governance is: Ask not what your country can do for you, ask what your country has done for you lately. It is, of course, the growth of administrative government systems that provides government with the capacity to carry out these previously ignored, and in some cases unimagined functions. This brings us back to the febrile politics of the upcoming election. When there is a moral transition, with large groups in society representing each of the two contesting systems of belief, it is predictable that the major parties in a democratic polity will line up with those two systems. It is not quite as predictable, but readily observable as an empirical matter, that rural people will cling to the old morality and that urban people will embrace the new one. So it is no surprise that one party is hostile to the morality of self-fulfillment and also hostile to the expansion of the administrative state, while the other party generally adopts the opposite positions. These general attitudes not only explain the way that apparently unrelated issues, such as banking regulation, public health insurance and same sex marriage cluster, but also drive the response to new issues such as climate change. It is equally unsurprising that when one looks at a map of electoral results on a county-by-county, rather than a state-by-state basis, virtually every state appears as urban islands of blue surrounded by a sea of rural red (the exceptions being highly urbanized New England, Mormon Utah and rebarbative Oklahoma). I don't attempt to advance any predictions in my book; some of it is history, and most is what Foucault called a history of the present. I will admit, however, that a strong implication of this history is that progressive attitudes, now associated with the Democratic Party, will prevail in the foreseeable future, assuming we don't incinerate or fry ourselves in the process. That doesn't mean that the Democrats will win the upcoming election or the ones that follow. As social attitudes change, there will always be people for whom the pace of change is too fast, and other for whom it is not fast enough. Political parties are strategic, and will align with current attitudes. Sometimes they even switch position; the conservatives of our present day were the radicals of the Civil War era. What I am willing to argue in my book, however, is that change is in fact occurring, and in a particular direction. Debates that dominated politics a relatively short time ago, such as the legality of birth control, the availability of divorce, the constitutionality of child labor laws or the desirability of civil rights laws, are now inconceivable, while issues that were inconceivable at that time, such as same sex marriage, universal heath care and the prosecution of the police for racially-motivated killings, will be the focus of our political controversies in the present and the immediate future. Edward L. Rubin is University Professor of Law and Political Science at Vanderbilt University. You can reach him by e-mail at ed.rubin at Law.Vanderbilt.Edu Posted 9:00 AM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |