In the Charles Dickens novel Oliver Twist, Mr. Bumble is told by the court that the law assumes his wife acts under his direction. Mr. Bumble responds with, “If the law supposes that, the law is a ass – a idiot”. The ass in this case is the donkey, an animal known for its obstinance. Over time the expression has been used to point out that the letter of the law can not only contradict the spirit of the law, but the law itself can contradict common sense and objective reality.
The more important point here though is that the law is an effort to formalize the commonly held moral code, a set of rules that determine what members of a society ought to do and ought not to do. It is not the moral code itself, but an effort to write it down on paper so it is clear to everyone. Fundamental to most ethical systems is the assertion that ignorance of the law is no excuse. You need to know the rules, which is why they are written down so that you can know them.
Despite the law seeming to be an ass, there is a logic to the law. That logic, like all systems, starts from some foundational items. These are the things that everyone in the law assumed to be true. For example, the Bill of Rights is supposed to be a list of starting points for understanding the limits of government. These are not supposed to be up for debate. As far as the law is supposed to be concerned, these are settled truths that cannot be challenged or violated.
This gets to an important point. Every system of oughts, the list of things you ought to do and the things you ought not do, begins with a set of eternal truths that rest on a recognized authority. Christians are free to eat pork because they do not recognize the moral authority of the Muslims and Jews. The prohibition against eating pork rests on the moral authority of those two religions. It is not an objective truth, but a subjective one that works only when you accept it.
The law is a system of oughts and therefore assumes an authority and that authority is supposed to be the Constitution but also tradition as expressed through precedent or the accumulation of court decisions. The Constitution is the starting point for what we all agree is the system of oughts. Precedent is the accumulated decisions over time on the things that were not expressly covered in the Constitution. Combined this makes up the system of oughts that define the morality of our society.
That last bit is what is often missed. Once something is formally put on the list of things you ought not do, it quickly becomes part of the informal list of taboos. The reason for this is that we naturally assume that in a democratic society the law reflects not only the general will but general morality. If the law says it is not allowed, it must mean that it is outside of that which is morally acceptable. In other words, once the court makes it against the law, it quickly becomes immoral.
An obvious example of this in action is homosexual marriage. Up until a few years ago people understood that marriage was about creating children. Since nature dictates how this is done, marriage must be one man and one woman. Then one day some people decided that the laws of nature are up for debate. Two men, it was argued, could be married, despite the biological impossibility of it. This group remained a ridiculous minority until they were able to get the courts to side with them.
In the blink of an eye, the issue of homosexual marriage went from absurd poke in the eye of Mother Nature to settled moral principle. Conservatives who opposed the idea then suddenly defended it. Even social conservatives have dropped their public opposition to homosexual marriage. You can see the change in moral attitudes in the polling on the issue. This absurd mockery of the laws of nature became part of the accepted moral code with the stroke of a judge’s pen.
Another example is the Brown decision. Central to the jihad against white people in this age are the novel moral principles invented by the court. In fact, the court not only created two new moral claims, but made those the controlling principles, superseding even those items written in the Constitution itself. As a result, the constitutional order went from a system of limits on government power to a system of demands on the white population of the country.
The same process is happening with the Bostock decision. In this case a majority of the justices agreed that discriminating against men pretending to be women so they can beat up girls on the soccer field is a form of sexual discrimination and therefore violates the Civil Rights Act of 1964. As Harvard professor Adrian Vermeule points out, this is a ridiculous claim on its face, but it also opens the door for adding yet another novel principle to the legal order.
As we have seen with other novelties from the court, it will not be long before this one sinks into the moral fabric of society. If you do not want your daughters pulverized by burly men in sundresses on the ball field, you will be shunned from polite society or maybe even suffer legal persecution. The fact that the Bostock decision was written by a so-called conservative judge, one anointed by the allegedly conservative Federalist Society and appointed by Trump is critical.
We used to worry about putting Catholics on the bench because it was assumed they would operate from Catholic morality, rather than the morality of high church Protestantism that informed the political order. It was assumed that judges were like all men, and they would operate from within a moral framework, formally expressed through organized religion until recent times. Catholics had Catholic morality, while Episcopalians had Anglican morality.
In other words, the text of the Constitution and the traditions and precedents that informed it were based on a moral framework that existed outside of it. The political system was founded by and for people who assumed a moral order based in high church Protestantism. It did not prohibit men dressed as women from beating up girls on the ball fields because no Christian people would ever conceive of such a thing, much less tolerate advocacy for it.
Once that morale framework was removed from the system, the Constitutional order was left without a moral foundation. It no longer had moral authority on which to rest the list of things members of society ought to do and ought not do. The political system was left to conjure one to replace it. The Brown decision and now Bostock rest on the moral authority of the new religion that has evolved since the middle of the last century, which promises salvation through universal liberation.
In the end, the law is a formalization of the moral code of a society. That moral code reflects the identity of the people who rule society. The foundation of which is either something outside of the human condition like the gods or the collective identity of the people who control society. Once the American ruling class abandoned Christianity as the moral foundation, it eventually settled on the collective identity of the ruling elite that emerged in the middle of the last century.
The trouble is, that ruling elite cannot settle on an exclusive identity as it is a hodgepodge of people from various tribes. Exclusivity therefore runs counter to their shared reality, so their new identity is the Open Society. It is a polite fiction but all ethical codes contain polite fictions. The new ruling elite is every bit as exclusive and discriminating as any ruling elite, it is just that they assume their calling is to usher in the Open Society, a world of free of discrimination and prejudice.
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