A quote for your consideration:

“The Supreme Court is now dominated by a highly politicized … majority intent on working its will, even if that means ignoring precendents and the wishes of the elected branches of the government.”

A diatribe against abortion? Gay marriage? Deference to criminal rights?

No, it’s E.J. Dionne denouncing the recent recent SC decision permitting the free use of corporate funds to finance shadow political campaigns. Even as he denounces the conservative justices for activism and for creating “legislation” from the bench, as well as the general conservative movement for a “double standard without apology” after decades of Right-wing arguments encouraging judicial restraint and deference to legislatures, he fails to note the double-standard that he (and others on the Left) are employing in their demands for judicial modesty.

All of which begs an interesting question: what are we to make of the constant well-worked political arguments based upon principle that prove to be so much window dressing when a different ox is being gored?

Tocqueville argued that in democracies, all political arguments become judicial arguments. And judicial arguments – particularly in the American context – demand to be framed in terms of the language of rights, that is, sweeping and universal applications of right, admitting of few if any exceptions (note that defenders of the gun rights are just as prone to argue against exceptions as defenders of abortion rights. Rights language is, in a way, totalitarian). Liberal democracies – based on the principle of equality – bridle against exceptions or judicious exceptions, that old form of reasoning known as “casuistry” that considers each case in its unique particularity. Such forms of judgment prove to offensive to our sense of equal treatment, and we reject the presence of boundaries or difference.

Yet, such moments as E.J. Dionne’s argument from principle today reveals that, more often than not, our principled arguments actually shroud particular and partisan interests. The language of rights, and the judicialization of politics, totalize our partial claims. It’s a most pernicious of outcomes, and one we live with daily (does anyone really think that “conservatives” are happy with the Court’s corporate finance decision on First Amendment grounds? Might it not have something to do with the assumption that such funding stands to more greatly benefit candidates in the corporation-friendly Republican party?). That is why we should consider and take very seriously Ross Douthat’s column in today’s New York Times, in which he defends a more local and less “universal” approach to politics (speaking specifically to the issue of sex education, but an analysis that could be more widely applied). By “nationalizing” such decisions, partisans are forced to make what should be more local and personal claims in universalists terms. Both parties are forced into the totalizing language of contemporary politics, and as a result, the most “general” player on the national stage – the Federal government – always wins. While it’s hardly a winning campaign slogan, what’s needed is a true and defensible New Casuistry.

Local Culture
Local Culture
Local Culture
Local Culture


  1. Excellent point. This is a keeper, as is Ross Douthat’s article.

    One point, though. Douthat says , “If the federal government wants to invest in the fight against teenage pregnancy, the funds should be available to states and localities without any ideological strings attached.”

    That unfortunately is impossible. Never happened and never will. It’s not possible either in theory or in practice. There will always be strings attached. To keep the discussion local, it needs to be funded locally.

  2. Electoral democracy in general–and two party democracy in particular–will always be more about power than principle, and all the principled rhetoric will always be a cover for powerful interests, and will be jettisoned at the first convenient opportunity. The parties have switched places on the issue of judicial restraint, and will happily switch again as the party line (and the needs of their financial backers) changes.

    School is such a small part of sex education because it is a small part of education. TV teaches them more than schools or parents ever will, and in this school they will be educated in the one true religion, consumerism. Moguls may run news channels that support “family values” (so long as the families don’t want any actual cash) but will work to destroy them on their entertainment channels, cuz that’s where the money is.

  3. “Electoral democracy in general–and two party democracy in particular–will always be more about power than principle”

    This is why two-party democracy is best. I wake up screaming when I think about what it would be like to live in a society where principle came first. There have been such places, also known as hell on earth.

  4. It sounds like Dionne makes almost this same point, though evidently without recognizing that there’s a perfect symmetry to the contradictions he bemoans. It does seem like he recognizes the symmetry, though, which raises the question of how he could refuse to address it….

    But what you’ve pointed out here is almost certainly the rub, isn’t it? As New Deal federalism grows to proportions (probably) unimagined seventy years ago, it becomes increasingly necessary to protect one locality in ‘universal’ or ‘rights’ terms rather than in local terms. But that said, the localist bent doesn’t get us all that we want either, on two counts, I think. First, we can point to all sorts of behaviors that we would want to say should be incentivized or disincentivized governmentally, regardless of locality. And while most of localities would likely agree with most positions on most behaviors, it’s unsettling to think that there could be places where, say, pederasty were legalized or Miranda protections illegalized. Are we really willing to claim that the potential existence of unsettling places is the price one locality pays to live and promote the sort of life it wishes? Or is the current situation preferable, where the fight for one locality to live as it pleases is fought without end on a national stage?

    Second—and the stickier wicket, if you ask me—is what to make of Article IV’s “Full Faith and Credit” clause. If you run it down the the local level, how is one locality to respect the laws in another locality, when some of those laws are going to oppose to the very essence of what it is to belong to the latter place? (See: DOMA) That’s one dilemma that’s hard to figure a way around without mandating local deference to increasingly larger jurisdictions—which, of course, terminates in the extreme authority that we afford to the federal government and Supreme Court that gave us the dilemma in the first place.

  5. Everyone always gets their panties in a bunch when it turns out that, politics isn’t actually about principle or ideology, that no agenda can be enforced with absolute consistency (at least not without disasterous results), that no one’s hands are clean.

    My vote is that we stop pretending. Politics doesn’t need to be high-minded, doesn’t need to be principially pure, and certainly doesn’t need to be unconflicted. Embrace the ambiguity, roll with the contradiction, and dammit, govern.

  6. Ryan Davidson, I was with you 100 percent, and liked the way you said it, until your last word. Why did you throw that in there? Do you think politics is mainly about governing? If so, it would be helpful to know how you define that term.

  7. Didn’t Karl Marx settle this one a long time ago? Politics is a proxy war between the Few and the Many as to who gets what?

  8. Ryan and The Reticulator seem to posit principle against governance, except that TR also throws out governance along with principle. “But without justice, what are governments except gangs of criminals?” (Augustine, City of God). So what does governing mean to you, Ryan, and what does government mean to you, Ret?

    Perplexed in Irving

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