an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
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