The Rise and Fall of the Third Reich, by William L. Shirer

What can be said about this book?

It deals with some of the most important subjects a person can study in this lifetime: (a) the causes of WWII, in simple numerical terms, the single most catastrophic event in human history, causing the death of 60 million people, more than any other plague, war, or catastrophe on record; (b) the attempted, and almost successful, genocide of the Jewish people in the world's most horrifyingly bureaucratic holocaust; (c) the simply incredible methods and means by which, in one of Western Civilization's great stronghold's, a government and a ruler who were dedicated, wholly and openly and overtly, to monomaniacal evil, came, through bluff, aggression, and dark luck, to seize and then maintain absolute power over an enthralled populace; (d) the equally incredible methods and means by which that government and that ruler, aided and abetted at every turn by its own neighbors' greedy participation, or war-wary appeasement, took control over a large section of central Europe without having to fire a single shot, in a series of coups which could have been turned back at any time by a single act of intestinal fortitude on the part of France or Britain, had they been willing to exercise it; (e) the waging of a total and complete war, for the purpose of killing off and/or enslaving the "lesser" Slavic peoples of Europe; (f) the abject ruination of the lands and people of Poland and other Eastern European states as they were first divvied up by the Germans and the Russians, and then used as their battlefields; (f) the nature of totalitarian government; (e) the setting of the scene for the establishment of the iron curtain and the beginning of the cold war.

The book tells this story from a very focused perspective.  We don't learn much about what is going on in the U.S. or in Britain or the Soviet Union during these years, except as they relate to events in or caused by Germany.  It is Germany's history we are learning, but not from a friendly source.  William Shirer does not pretend to be writing a detached, objective, or academic history.  He is telling an amazing story and doing so as accurately and as compellingly as he can. That's not to say he is sloppy or breaks any rules.  If the specifics of an event are disputed, he'll give us more than one account and tell us the sources and offer his own take on which version may be the most accurate and why.  But he is not interested in academic debates about economic or philosophical causes and effects. He is a working journalist, who was living in and writing from Berlin during most of these events, and he is willing to relate his own personal reactions, and to describe his perception of the German people's moods and responses.  He takes sides.  He despairs at the stupidity of the allies at certain key moments.  He is appalled by the Germans.  (When translated, the book was not well received in Germany.  Its author was accused of being anti-German by West Germany's prime minister. The book clearly discomfited the German people, who wanted to believe that Nazi-ism was a phenomenon which could arise among any people, given the right conditions, and was not a peculiarly German evil.  The German people may have been right about this  -- that is an argument for another day. But the point here is that Shirer tells a great story, because he isn't afraid to call it like he sees it.)  

Most importantly, Shirer did his homework.  He dug through the Nazi journals, diaries, and official but secret histories in the archives which the allies seized at the end of WWII, rifled through briefly for the trials at Nuremberg, and then stuck in a warehouse somewhere until Shirer, Indiana-Jones-like, came along to dig in and find their treasures.  We know what key German leaders were thinking before and after the major events.  But our narrator, having lived also through these events, can still get us emotional about them.  It is the best of both worlds: a personal account, with footnotes.  The book is a page-turner.

Yes.  It's very, very, long.  Any given chapter could have been made, with a few more paragraphs, into its own short book, which would have stood as one of the most detailed accounts ever published of any particular portion of this history.  Yes, even though it was always a compelling page-turning read, I set it aside for a few months at least twice to read other books that were of more immediate interest to me in a particular time period, and then came back to finish it later.  But that may have had more to do with the book's subject matter than its length.  The book deals with a great deal of darkness.  Sometimes I just needed to read something else for a while, instead of a book that made me want to puke.

There are some books that I feel each of my children should read. Some books that I think it would be wonderful if every American could read.  This is a book that everyone on the planet ought to read, at some point in their lives.  It's that important to know what happened here and to come to terms with it.

Coolidge, by Amity Shlaes

"Debt takes its toll."  Could a book with that as its opening sentence have been published at a more opportune time?   Well, yes, it probably could have.  A few years ago, before it was too late.

It is difficult to imagine a President less likely to stir the interests of modern readers than Calvin Coolidge. He was a reticent man with a non-flamboyant personality, and, therefore, inherently less interesting to read about than say, Theodore Roosevelt.  He presided during times in which nothing of great historical significance occurred: no depressions or world wars or civil wars or major social movements.  And, so, I'll admit that, at times, this new Coolidge biography by Amity Shlaes was pretty dry stuff.  Nevertheless, after learning more about him, he might just be one of my favorites.

Utilizing the theory of "scientific taxation" (which we would recognize today as essentially supply side economics) he was able to improve the economy and the government's ledgers.  Coming into office at a time when the country was not doing well economically, and the government was in debt, he embraced a philosophy that was the opposite of our current President's, who came into office under similar circumstances.  Instead of doubling down on debt through massive Keynesian stimulus packages, Coolidge reduced taxes, and let the citizens of the United States, with more of their own money in their own hands, improve the economy.  At the same time, he reduced government spending.  The result?  The economy improved, and government revenues increased.  Reaganomics without the (needed and appropriate cold war- ending) military spending increases.

Coolidge was slow to heed calls for federal aid to disaster stricken regions of the country, believing that State governments should be primarily responsible for their own citizens' well being, and that private, rather than governmental, welfare should be drawn upon first.  And he insisted on maintaining tight control over budgets in the executive offices and its departments.  In short, he may very well have been the last President of the United States who actually believed in the Constitutional notion of a Federal Government of limited and enumerated powers, and, though I haven't looked it up, it must certainly be the case that federal spending per year during his Presidency was lower than it has ever been since.

Alas, his successors did not heed his example.  As economic clouds erupted a few years after he left office, his predecessors, such as Hoover and FDR, met those crises with a new deal of unprecedented governmental spending and ever more intrusive federal governmental involvement in the affairs of the economy.  And, despite the many ways in which that federal intervention likely prolonged the agony of the depression, we have never looked back.

But, if we ever do look back, and if (in some far distant future generation, when the Obama era's debts have finally been paid down) we seek to understand how it was that, once upon a time, we were able to live within our means and not mortgage our entire economy to China, Calvin Coolidge would be a good place for us to start.

Is America’s Decline and Fall Inevitable? A Pessimistic View of the Current State of America. Part I: Introduction

My reading of late has been incredibly pessimistic. But, just as third and fourth century Romans had reason for pessimism as they viewed the state of their society and warily meditated on the barbarian hordes beyond their gates, there is, today, real cause for pessimism.  It is unfortunately all too easy to conclude that Western Civilization is about to see another historic fall.  If so, then, as America, not Rome, is now the center of the west, the fall of the U.S may be where the decline will happen most dramatically.

The portrait of a society on the brink of ruin: 

-U.S. Debt as a percentage of GDP: 1981 32.5% ; 2012 100.8%
-Number of Workers per every social security recipient: 1950 16.5 ; 2012 2.8
-Percentage of population living in a home receiving governmental benefits: 1983: 30% ; 2012 48%
-15 to 24 year old suicide rate: 3 times what it was in 1950
-Percentage of children born to unwed mothers: 1960 5.3% ; 2013 48%
-Statistical probabilities for children of unwed mothers: More than twice as likely to be arrested for a juvenile crime; roughly twice as likely to be suspended or expelled from school; a third more likely to drop out before completing high school; 80% percent more likely to live in poverty.

Maybe there is a way out, but it looks a lot like our society is doomed to implode sometime soon, and anyone who doesn’t see the danger has his head buried in the sand.  The sand in question is admittedly very inviting. For many, life is good in Western Europe and the United States right now, but it is good in a way that is economically and demographically unsustainable.  It is being financed by borrowing billions of dollars from other countries, and passing those bills on to the next generation.  But the decline in fertility throughout the western world means there will be no next generation to pay those bills, unless the Muslims being imported into Europe to replace the missing generation vote to keep paying these taxes for the elderly heretics they support, and the third-world, poorly skilled, poorly educated immigrants being imported into America want to keep paying taxes for recipients of this largesse with whom they will share no particular cultural or ethnic affinity.  The “promise” which liberal Utopians have been advertising for years, an ambition-crushing cradle to grave welfare state, in which millions get to live like prisoners, or trust fund beneficiaries, being fed and clothed, but never accomplishing anything that might lead to a valid sense of self-worth and justified satisfaction, turned out to be achievable after all, just not sustainable.  It’s a party that only one generation, or maybe two, will get to enjoy before the bills come due and there’s nobody around to pay them.  Socialists always run out of other people’s money, and this trend is accelerated when the people themselves disappear.

Such are the happy thoughts you get to think after reading books like Niall Ferguson, The Great Degeneration, How Institutions Decay and Economies Die (Penguin Press 2013); Jonathan Last, What to Expect When No One’s Expecting, America’s Coming Demographic Disaster (Encounter Books 2013); How the West Really Lost God, a new theory of secularization by Mary Eberstadt; and reviewing old favorites like Mark Bauerlein's The Dumbest Generation, or The Secret Knowledge by David Mamet.

So, how did we get here?  It has been said that every civilization is only one generation away from collapse, if it fails to transmit its core values to the barbarian horde of newborn babies which arrive every year.  After 500 years of ascent and dominance, Western civilization’s last two generations have now failed to meet that challenge.  The values of Western Civilization were not transmitted to those in our society who are now under 35.  Instead, those values were deconstructed and critiqued by a news and entertainment media and academia whose ranks were filled with red diaper babies and other societal skeptics, acting as the vanguard of the non-believers.  And so, most citizens of the first world democracies no longer believe what their parents, grandparents, and great-grandparents believed, and they no longer behave as their parents, grandparents, and great-grandparents behaved. And, as culture and behavior and ideas and beliefs matter, the nations of the west have fallen into decline, with America the last holdout, whose citizens no longer know what they were holding out for.

What Is Western Civilization?

I love the idea of Western Civilization as a three-legged stool, based on the interplay between biblical, Judeo-Christian religion inherited from Jerusalem, the love of reason and art inherited from Athens, and respect for the rule of law, rather than the rule of might, inherited from Rome. This is a concept of Western Civilization that is beautifully expressed in an article by George Weigel, “The Handwriting on the Wall” which can be read here: http://www.nationalaffairs.com/publications/detail/the-handwriting-on-the-wall.

A stool needs three equally sturdy and equally lengthy legs to stand.  Cut or unduly emphasize the importance of any of the legs of our society, and the society will fall.  This is why it is such bad news that, one by one, the values westerners inherited from Athens, from Jerusalem, and from Rome, are collapsing.

Is America’s Decline and Fall Inevitable? A Pessimistic View. Part II: The Fall of Athens: The End of Reason and the Rise of Emotion.

“No wonder your President has to be an actor, he’s gotta look good on television.”  Doc Brown, Back to the Future.

TechnoUtopia

Many would argue that we are, today, living in an era in which our inheritance from Athens is stronger than ever.  We have allowed scientific inquiry to raise us to heights previous generations could have only dreamt about.  Before I was five years old, we had put a man on the moon.  But the phone in my pocket now holds more computing power than the rooms full of computers that helped us to put him there.  Clearly, we are living in the age of reason, science, technology, and intellectual advances.  As for art: our movies and television dramas, the 20th and early 21st Century’s favorite mass medium pop cultural events, integrate music, storytelling, art, design, costuming, acting, and state-of-the-art special effects to create spectacles that would have made the groundlings in Shakespeare’s globe weep.

When it comes to upholding our cultural inheritance from Athens, many would argue, we have nothing to fear.  We believe in reason, science, technology, and the arts.  We are standing on the shoulders of intellectual giants and reaching, literally, for the stars.

The Stupidity Problem

The problem with this rosy scenario is that it ignores a few inconvenient facts, about how stupid the vast majority of Americans have become in this age of “reason” as our electronic devices, technologically impressive wonders that they are, make the humans who use them increasingly less impressive. As Mark Bauerlein has argued in his book, The Dumbest Generation (Tarcher Penguin 2008), television, video games, social networks on the internet, mobile phones, and other video devices have had the effect of completely killing reading among the emerging generation, and that in turn has killed much of the functional capacity of their brains.

Troubling signs of the times include: The incredibly tiny percentage of the population that has the slightest idea how their mobile phones actually work, but play with them for hours which used to be spent, by their grandparents, reading or learning to play a musical instrument; the numbers of American Ph.D recipients in medicine, science, and technology who were raised in foreign, non-Western, countries, compared to the percentage of native-born American citizens who are qualified to pursue a similar education; that when an American calls a help-line to assist him or her with a technological conundrum, the Indian on the other end of the line has been trained, not without reason, to think of Americans as fairly stupid, and to patiently help them through their issues using the simplest language possible; that while the percentage of High School graduates pursuing college has increased, so also has there been an increase in the number of American college students, even those arriving on government funded scholarships, who require remedial course-work during their first year; that most Americans cannot identify any of the literary, historical, biblical, or classical allusions referenced in their most popular entertainments; and that a large majority of High School graduates will never voluntarily read a book after leaving High School (and that’s the statistic for the graduates).

The End of Reading and the Rise of Screens.

The most telling blow to the idea that we are living in an age of reason and appreciation for the arts is to be found in the decline of reading, and the concurrent decline in participation in other forms of art.  It has now been almost a decade since the National Endowment for the Arts published its landmark study, “Reading at Risk”.  Key take-aways from the press release that accompanied that 2004 report:

“Literary reading is in dramatic decline with fewer than half of American adults now reading literature, according to a National Endowment for the Arts (NEA) survey . . . .  Reading at Risk: A Survey of Literary Reading in America reports drops in all groups studied, with the steepest rate of decline - 28 percent - occurring in the youngest age groups.  The study also documents an overall decline of 10 percentage points in literary readers from 1982 to 2002, representing a loss of 20 million potential readers. . . .  Reading also affects lifestyle, the study shows. Literary readers are much more likely to be involved in cultural, sports and volunteer activities than are non-readers. For example, literary readers are nearly three times as likely to attend a performing arts event, almost four times as likely to visit an art museum, more than two-and-a-half times as likely to do volunteer or charity work, and over one-and-a-half times as likely to attend or participate in sports activities. People who read more books tend to have the highest level of participation in other activities.”

This is not a portrait of a culture that has retained its ties to the values of Athens.  Reason requires reading.  Appreciation of art does as well.  You don’t have to have researched a book on this subject, like Mark Bauerlein, to know intuitively where to place the blame. It lies, clearly, on the most destructive invention in the history of the world: the screen, be it the television screen, the movie screen, the videogame screen, the computer screen, the internet screen, or the smartphone screen.

Here’s an experiment: Find a precocious second or third grade student, one who is considered bright, and capable of reading far above the average ability in his or her grade level.  Choose a book to read together that was written for the-mid elementary years: for 8 to 10 year-olds.  But choose a book that was published before the advent of television.  Ben and Me, by Robert Lawson, would be one appropriate example.  You will likely find something very sad.  The book is no longer written for today’s precocious nine year olds.  Its vocabulary is too advanced. The background facts one would be expected to understand to pick up on the book’s nuances are out of reach. You’ll have to wait a few more years for most children to get there, years interrupted by their viewing of screens.

We are no longer a nation of readers.  We are a nation of watchers.  And since the medium is the message, this means we are no longer a nation that thinks.  We are, instead, a nation which emotes.

Don’t get me wrong.  I love movies.  I really, really, do.  Few Americans from my generation (around 11 when Star Wars hit the big screen, about 15 when Indiana Jones outran that giant boulder) grew up without developing a deep fondness for the movies.  And television has become much better in recent years, with its serialized adult dramas, like Lost, now telling lengthy stories on the (once) small screen.  But this has come at a horrible price.

The Educational Cost.

During a child’s developmental years, reading activates and develops different parts of the brain than those developed by watching television, or playing video-games. The neurological connections which are, or are not, formed in early childhood, have lifelong implications.  Denying the rising generation of the neurological connections which will enable them to prosper later in life is a form of neglect.

The reports and statistics on life outcomes for struggling vs. proficient readers are not difficult to find.  Take two third graders, one of whom reads at or above grade level, and enjoys reading voluntarily, for fun; and another who reads below grade level, and never reads for fun.  The gap between the sheer volume of reading material read by the first student versus the second will begin to grow exponentially, and will obviously concurrently increase the gap in their relative reading skill and proficiency.  Studies have shown that this will affect not only academic ability, but personality, with readers tending to be more empathetic than non-readers, as their immersion in fiction exposes them to the reality that other people have inner lives and feelings.  In the latter part of the third grade, the so-called “Matthew Effect” (named for the Gospel in which the parable of the talents appears) will then begin to kick in.  As more and more school reading is done, not to learn to read, but to learn other subjects, the non-reader will fall further and further behind his peers.  The student who falls behind will become ever more frustrated with and detached from schooling.  This will profoundly affect statistically probable life outcomes, in areas that go far beyond academics.  The slower reader is more likely, not just to get bad grades, but to drop out of High School early, and is more likely to become involved in juvenile delinquency and crime.  He is more likely to need government assistance at some point in his life, and more likely to have difficulty keeping a job, or maintaining a stable marriage.

The Political Cost.

In our adult years, we can’t hope to really understand what political forces were behind the big drama down at the County Commission hearing this evening, if all we know about it is the two minute blurb the local tv station gave us, and we don’t bother to read the lengthy articles and editorials in a special feature of our local newspaper.  And so politicians get away with more crap, and have to reach us at a much more basic, and base, level, than was once the case.  If you can’t convince an American of the validity of your cause with a two or three word bumper sticker (or better yet: a symbol on a bumper sticker that doesn’t even have to be read at all, let alone thought through), in the age of television, your cause is doomed.

Think what a tragedy this is for America, given our history.  Until a few decades ago, we had always been a nation whose politics were fueled by passionate readers, and it has always been the written word which has moved our history forward.  The Founding Fathers, almost to a man (Washington being the major exception) became prominent because they were writers, whose words found access to local presses, and were consumed, enthused over or argued about, by partisan readers.  Benjamin Franklin’s satirical, “Rules by Which a Great Empire May be Reduced to a Small One”; James Otis’s speeches against the Writs of Assistance and the Stamp Act; John Dickinson’s “Letters from a Farmer in Pennsylvania” essays, against the Townshend Acts; Samuel Adams’ “The Rights of the Colonists as Men”; The Novanglus letters, by John Adams, making the legal case for the sovereignty of the colonies; “A Summary View of the Rights of British America” by Thomas Jefferson, setting forth a similar argument in response to the Intolerable Acts.  Each of these writings strengthened the colonists resolve to create their own continental congress, and propelled into prominence the men who would play leading roles in the drama of the American revolution and founding of the Constitution (although Franklin was already famous).

Common Sense, a 46 page editorial, which drew heavily on stories from the bible that most Americans had learned to read by, swayed public opinion in favor of independence just in time to give the Second Continental Congress political cover for declaring that independence. (Cagey guy, wasn’t he, that bible-quoting Thomas Paine–who later found his anti-Christian voice when writing to a much different audience of anti-clerical revolutionaries in France).  Before the Revolutionary war had even been won, the presses were churning with essays on the problems with the articles of confederation, and the need for a new Constitution, to unify the colonies, such as Hamilton’s “The Continentalist.” Our proposed new Constitution was ratified by the States only after it had been passionately defended, primarily by Alexander Hamilton and James Madison, in the Federalist Papers (and its potential pitfalls foretold with eerie prescience in the Anti-federalists’ writings).  Later, the country’s political unity was reaffirmed by George Washington’s farewell address, not actually an address that was ever spoken at all, and mainly written by Hamilton, but which was published in all the major newspapers of the Country, and read by virtually everyone, and which is still quoted today. Later, de Tocqueville’s Democracy in America told Americans what was right about their country. The Lincoln Douglas debates were not viewed, but read, all over America, as were the other great speeches, books, and narratives that led to the Civil War and ultimately spelled the violent death of slavery: Uncle Tom’s Cabin and Frederick Douglas’s autobiographical narrative, Lincoln’s Inaugural addresses and his speech at Gettysburg, and the fiery indignation of the radical abolitionist newspapers.  The era of civil service reform, the demand for an end to the spoils system and political machines, greater health and safety regulations in our meat packing plants: they were all influenced by books, newspapers, and the written word.  How might all of that history have been different, if we’d all been sitting around watching reality television, too entertained to read, laughing at Lincoln’s funny hair.

Visual imagery, accompanied by the right music, is much less likely to touch our brains, and much more likely to touch our heart.  This is not always a bad thing.  The images of wounded American soldiers which were seen during the Vietnam war, and in many subsequent conflicts, has probably made it far more difficult (as it should be) to drum up American enthusiasm for military conflicts. But, more often than not, politics based on emotion and visual images, rather than words and carefully presented logic, is overly simplistic, more easily subject to demagoguery, and less capable of the nuance that can lead citizens to understand that almost all of their political choices will be neither wholly good nor wholly bad, but will be subject to trade-offs, and have offsetting costs and unintended consequences.  In my lifetime, as Americans have debated changing the definition of our most basic institution, marriage, emotions and sanctimony have run high.  Words and written arguments?  Not so much.  Oh, lots of law review articles and legal briefs and even a few books have been written on both sides of the subject, but virtually no one has read them.  A bumper sticker with a yellow equal sign on a blue background tells you all you need to know, namely, that the American intellect is dead.

Our laws are still written in words.  But they are now sold to us on the basis of imagery.  It is, accordingly, increasingly the case that the laws in question have less and less to do with the basis on which they were sold.  Sell the sizzle, not the steak, is the mantra of the dishonest salesman.  It is a mantra which visual images are particularly adept at exploiting. We learn about virtue, duty, honor, by reading books, especially religious texts.  These are difficult ideals to show on a movie screen, which is far more adept at showing us fun, excitement, and enjoyment, arousing our anger, rather than our logic.

The Cultural and Historical Cost.

It has been argued, and not without some basis, that the rise of a post-literate screen-driven society spells the end of adulthood: http://www.artofmanliness.com/2014/11/03/secret-society-of-adults/  

And so our culture suffers.  Politicans and government officials can be less responsive and responsible, because no one will read about what they are doing.  And so they become more corrupt. Newspapers can unfairly target their political foes, via headline scandals which don’t seem particularly scandalous if you read and reason through the text of the article, but that doesn’t matter because no one does that.  And so they become more corrupt.  Businesses can tout wares which have long since been exposed as not living up to their promises.  But that doesn’t matter because no one has read those exposés.  And so the businesses become more corrupt.  Corruption, unchecked, increases the power of the few over the many.

And, as a medicine taken on an empty stomach may be overly potent, what little that is read has an increasingly powerful effect upon its recipient, regardless of its coherence, logic, or honesty.  It becomes easier to lead us astray.  Having no training in sophisticated and critical analysis of what we read, we peruse an article someone linked to on a facebook account (about whether vaccines cause autism, or a really weird trick that will help us lose belly fat) and we are unable to ask the critical questions which might debunk or strengthen the claims being presented.

But, most devastatingly of all, we don’t read history, and so we don’t remember our past, and so we have no past, and American culture means nothing because it never existed.  Like an Alzheimer’s patient who no longer remembers his wife, we might as well have never had a wife.  We might as well have never fought WWII, as we no longer honor those who won it, and, in winning it, ended a war started by Germany and Japan which took 60 million lives.  Instead, we see something on Youtube about Hiroshima and conclude that our nation was the guilty one, and does not deserve our respect or our loyalty. We might know different if we had read any books about WWII, but who does that anymore?

As Bruce Feiler has argued eloquently in the New York Times article, “The Stories that Bind Us” March 15, 2013, the children of a family which tells positive stories about itself are given great psychological benefits, as they come to understand their family’s narrative, and see their own roles in the generational story.  The same is true of military units, who have found that when recruits learn more about the history of the military branch or unit in which they serve, individual perseverance and group coherence are strengthened.  Id.  The same is true of companies and businesses.  And of nations.  A United States whose citizens understand the triumphs represented by the Declaration of Independence, victory in the Revolutionary War, founding of the Constitution, settlement of the west, abolition of slavery, and which understands the great moral good which was done by their country when it helped to defeat Naziism and Japanese military imperialism, and Soviet communist totalitarianism, is a nations whose citizens will love their country, and will believe that we can overcome current challenges, if we will get back on to a sensible path.  But our children don’t read enough to know any of that history, and, when they do finally become interested, they are more likely than not to be given Howard Zinn to read, instead of something truthful or even partially positive.  No wonder they decide it isn’t worth it to try to live within our means, but instead, with nihilistic self-contempt, fail to challenge a government whose debt will crush millions, in generations yet unborn, of our children, grandchildren, and great grandchildren.  Why should these modern nihilists care?  They know nothing of their country’s past, so what reason do they have to care about her future?

Is America’s Decline and Fall Inevitable? A Pessimistic View. Part III: The Fall of Jerusalem: The Collapse of Traditional Christian Morality and the End of the Traditional Family

The biblical Judeo-Christian religious leg of Western Civilization had many aspects.  One of those aspects was its sexual moral code.  The sexual code varied to some degree between Catholics and Protestants, and there is some historical debate about how closely it was adhered to among the general population in different times and different places.  But until recently, it was never, in majority-Christian nations, completely rejected as at least the ideal.  At its essence, Christian sexual morality included, to a greater or lesser degree of strictness depending on the religion involved, some version of each of the following: (1) the principle that there should be no sex before or outside of marriage between a male husband and his female wife (only in the 21st Century has it become necessary to use gender adjectives for the meaning of these ancient words to be clear), which prohibition thereby excluded homosexual acts; (2) the ideal that marriage was indissoluble and divorce illegitimate, or, in its less strict form, the ideal that divorce was generally immoral, but allowed if based on a betrayal by the other party, such as through adultery, cruelty, or abuse; (3) restrictions on access to birth control, especially for the unmarried, and obviously including restrictions on the most morally dubious form of birth control, abortion.

Taken as a whole, if this code were an arch, its keystone would be conjugal marriage between a male husband and a female wife as the only appropriate context for sexual intercourse.  Thus, the entire code rests upon a proper understanding of "marriage" and the surest way to destroy the entire structure is to destroy marriage.  This is being accomplished in our day by treating marriage as such a malleable concept that it is essentially meaningless.  When people no longer agree on the meaning of a word, that word uses its usefulness.  This is a minor tragedy for effective communication when a minor word, toaster oven, say, begins to mean different things to different people.  But when the word in question is as fundamental to our understanding of life's expectations and societal ordering as marriage, it is a major tragedy.  Marriage is not just being redefined, but essentially defined out of existence, and abolished completely, as no longer being a word, or concept, let alone an institution, that has any common and universally understood meaning.

This marriage-centered sexual moral code was admittedly difficult for many people to live under.  It kept some people in unhappy or loveless marriages.  It prevented some people from having the kind of sex they wanted to have.  It could be oppressive to single adults and to women.  And so, one by one, especially over the course of the past 50 years, as society began to focus increasingly on the wants of the individual rather than the needs of the society, each of the components of this code was rejected.  See, Mary Eberstadt, How the West Really Lost God, a new theory of secularization (Templeton Press 2013). This rejection was generally argued for on the grounds of compassion for the individual whose needs did not conform to the options available under the code.  But, given the incomparable advantages which children who are born to and raised by their own two married parents enjoy, how much compassion do we truly have towards individuals if we create a society where more than ½ of individuals will not be raised, from childhood to adulthood, by their own two married parents, and where almost ½ of them may never know their father, let alone enjoy his daily provision and care?

Here’s how this happened:

Divorce.  The prohibition against divorce was the first to fray, and the no-fault divorce laws of the 1970s, allowing for unilateral divorce by a spouse who had not been betrayed by the other party to the marriage, including where the other party did not want a divorce, represented the final victory over this component of the code.  (This might have been foreseen: Jesus taught in the Sermon on the Mount that divorce had been suffered to enter into the law of Moses due to human weakness, but that Christ’s higher law required a return to God’s original ideal that a divorce could not be terminated save in the case of adultery.  Thus, the apparently historical Old Testament pattern of the law of indissoluble marriage eventually giving way to allowances for divorce, was refuted by a Christian theological position against no-fault divorce, which itself later fell out of favor, in a pattern which repeated and echoed earlier events.)  It doesn’t matter now that you have vowed to honor your spouse and provide your children with a stable home.  If you are unhappy in your marriage, or “unfulfilled,” you are allowed to move on, and seek and obtain a unilateral divorce, with no need to allege cruelty or unfaithfulness on the part of a spouse who wants to stay married, and the financial and emotional consequences to your spouse and children are nobody’s business.  This change has undoubtedly been a positive development in some people’s lives, even while targeting other groups (mainly unmarried women and their children) for increased risks and rates of poverty.

Birth Control and Extramarital Sex.  Laws and religious prescriptions against birth control fell at roughly the same time as the advent of no-fault divorce.  Many factors contributed to this change. Since children have historically been seen as the ultimate form of social security, the rise of approval for birth control roughly corresponded, unsurprisingly, with the enactment of federal social security benefits.  No longer would the elderly count, as they had for millennia, on their children’s compliance with the Fifth Commandment (honor thy father and mother) to be taken care of in their elder years. Rather, a federal benefit, which you were eligible for whether it was being funded by the taxes of your own children, or somebody else’s children, replaced familial bonds of duty and severed some of the ties between the generations.  The consequences? Well, despite all the claims of Marxist theory to the contrary, human beings are not angels, but respond to incentives.  Why spend time and energy and money to raise a child who will take care of you in your old age, if someone else’s child, who someone else spent time and energy and money to raise, can be forced by the government to take care of you?  The rise of a non-agricultural economy had already weakened the incentive for having children.  Federal social security benefits, which led people to look to the government for something their children had previously provided, killed it off completely.  The larger the government, the smaller the family (both metaphorically and literally).  Griswold v. Connecticut, the Supreme Court case which overturned laws against access to birth control, then played its part.  And, of course, the technology of “the Pill” obviously accelerated this process even more.  Roe v. Wade, which legalized post-conception birth control, was the final nail in the coffin. Restrictions on birth control were ejected from the code, or, at least, this component of the old code was ejected from American life. Unmarried persons could now have sex purely for recreational pleasure, and, supposedly, without risk.

While I am personally gratified that married people can now better plan their families, it cannot be doubted that the main promises made by those who initially advocated loosening restrictions on birth control, namely, that it would lead to fewer unwanted births, have proven to be among the most completely and utterly bogus predictive claims made in all of human history.  Number of illegitimate births in 1960: less than 6%; Number of illegitimate births in 2013: approaching 50%.  (And yet, with every attempt to introduce planned parenthood as our children’s sex-ed teachers, and make condoms freely available to minors in the school nurse’s office, we keep hearing these same bogus arguments, as though the statistical evidence and actual experience of the past 40 years debunking these promises never happened.)

Why did the promise of birth control, a world of no more unwanted babies, fail?  The story is actually very simple.  Once birth control was legitimized, there was no longer any strong basis, it was argued, for requiring sexual abstinence outside of marriage.  The risk of an unwanted pregnancy could be avoided, so why not enjoy sex merely and purely for the pleasure it brought?  However, just as the heightened sense of security which was engendered by the advent of seat belts in automobiles actually led to riskier driving and higher vehicular death rates, the perception of reduced risk for extramarital sexual activity led, in reality, to a higher number of out-of-wedlock births.  Apparently all that birth control didn’t always work as advertised.  As the number of out-of-wedlock births increased, the stigma associated with the same decreased, and soon it became impolite and impolitic to criticize a single mother or a pregnant high-schooler.  Meanwhile, the government’s “war on poverty” by subsidizing illegitimacy, made things even worse. The era of the single-mother had arrived.  Sexual abstinence was jettisoned from the code.  Birth control for married couples has its benefits, and, among major Christian denominations, only the Catholic church, but no longer most of its members, still preaches against it.  But the concurrent rise in extramarital sexual promiscuity which accompanied access to birth control for singles has been a disaster for the notion that children deserve to be born within the bonds of matrimony, so they can, if at all possible, be raised by their own mother and their own father.

Redefining Marriage.  As western culture ceased speaking of homosexuality in terms of acts and behavior, and began instead to identify and label certain persons as "homosexuals" having a certain "sexual orientation" (both relatively recent ideas in western thought) rather than focusing on the morality of particular sexual acts, it was inevitable that a culture obsessed with ensuring that all minority subgroups within it (except people of faith) be provided with rights and protections against the tyranny of the majority, would come first to pity, then tolerate, then protect, and eventually to promote and celebrate homosexuality. It’s been a fascinating phenomenon to live through, having been born and raised to young adulthood in a time when virtually everyone, including the non-religious, were disgusted by the very idea of homosexual sex, and to have then lived through an additional 25 years as such attitudes have been so completely routed that it is now those who advocate against homosexual behavior who are stigmatized.  Nevertheless, based on the prior pattern, it should not have surprised anyone that this element of the so-called “culture wars” would also be lost by the traditionalists, and this element of the code also rejected.

Once a minority subgroup is created, it will inevitably seek and potentially be granted legal protections, which will inevitably involve a narrative of an oppressed minority being liberated against the forces of hateful bigotry.  Thus, the focus on homosexuals as a category of person, rather than as a type of conduct, led to the need to sort ourselves: are we a member of the morally superior class who loves our minority friends? Well of course.  Who wouldn't want to be so identified?  What to do to prove our membership?: rail against and stigmatize those who have not caught up with the times, which means attacking religion.  Each new victory leads to a new need for new sorting on some new issue.  So, finally, the enlightened secular liberals amongst us have now determined that marriage itself must be redefined as the union of any two persons, regardless of gender.

But here is the problem: if you "expand" the definition of a triangle so that it may now refer to both three-sided and four-sided polygons, what you have really done is abolish the concept of a triangle from your vocabulary all together, and, with it, the ability to teach certain mathematical truths and theorems.  The same is true of marriage: by "expanding" the definition, we merely prove that the word is meaningless, as meaning whatever anyone wants it to mean.  Marriage as an institution geared toward procreation and family life, and designed to ensure and promote the ideal that every child deserves to be taken care of by the biological mother and father who brought them into this world, with exceptions based solely upon the child's (not any adult's) best interests, passes from the scene. As it does, so too does the idea that a child needs a father, or that a man needs to step up to being a father, and all the other theorems which once flowed from the idea of marriage as previously defined, which we can no longer teach.   Based on the outcomes we have already lived through as earlier elements of the Christian sexual code have been rejected, it should be obvious that, once again, we will learn that rejecting yet another element of the code will come at a cost.  But this time it's even more serious: As stated, the institution of marriage formed the crux of the entire Christian sexual moral code, in terms of defining the context for socially approved sexual relations: namely sexual relations within the bonds of an institution which ensured that every child has a father and a mother. This function is the institution’s most vital point for existing in the first place. Surely there are other reasons for the institution of marriage in addition to its relationship to procreation and child-rearing.  But no one who has seriously thought about the issue can doubt that the institution’s rise and maintenance, in virtually every society on earth, across virtually all times and all cultures, is due to the fundamental facts of human existence: that we come in two genders, that only a combination of those genders can create a new baby, that human babies do not arrive ready to face the world, but take years of often arduous care to raise to a healthy and self-sufficient adulthood, which care requires both full time nurturing of the child for the first years of its life, as well as financial and material sustenance, which dual needs can generally only be provided either in large extended families, or, in smaller families, if one parent leaves the nurturing to the other and goes into the world to hunt, sow, or gather.  If any of these elements of human nature were different, if we reproduced asexually, or if our newborn babies took only weeks to walk and talk and function independently, it is highly doubtful that marriage would have ever developed among human beings, let alone been so ubiquitous throughout the generations and for virtually every culture on earth.

As the communists discovered when they tried to ignore the basic characteristics of humans (that they are selfish and respond to incentives), it is inevitable that a society which tries to ignore human reality in favor of ideology will reap unintended adverse consequences.  So also, we will inevitably learn that redefining marriage in a manner which has no relationship to the basic facts of human existence will cause harm.  That harm comes in the form of denying children of their natural, prima facie, prepolitical right, to be raised by their own mother and father.  Any-two-persons marriage deprives children of a mother and a father.  It does this in two ways: directly, as when a same sex female couple have a child through artificial insemination from a sperm donor, or a same-sex male couple in the adoption market insist that they must be treated as absolutely equivalent to a male-female couple seeking to adopt a child, with no preference for the male-female couple being allowed; and indirectly, by promoting the societal belief that children do not need fathers, and that sex, marriage, procreation, and child-rearing may properly be treated as disparate, atomized, and unrelated, rather than as integrated concepts.

Marriage defined as the union of any two persons sends a message that children do not obtain any benefit from a father that they could not receive from a second female parent. (It also sends the opposite message, with respect to mothers not being necessary, but does so far less frequently, and with far less impact, given the biological facts which bond a child and his or her mother together, such that the concept of motherhood is far less reliant on social values, laws, and religious customs, for its support, than is the concept of fatherhood.)  This official rejection of marriage as an institution whose purpose is to tie children to their own mother and father, in favor of the proposition that children are adaptable, and should be required to adapt to benefit adult desires, inevitably spills over into heterosexual relationships as well, teaching young men that children do not need a father, so there is no reason for them to commit to any higher purpose than their own pleasure when they engage in sexual activity.  This, in turn, leads to fatherless children.

It is no statistical accident or mere coincidence that, for the first time in our nation’s history, over 50% of children born to mothers under thirty are born to an unwed mother, and that those members of society who are under 30 are also the most likely to support redefining marriage as the union of any two persons.  Rather, each of these statistics are strongly related, as they each represent the values of a generation which has turned its back on the idea that a child needs both a mother and a father, if providing a child with that benefit will get in the way of the pleasures adults can obtain from sex, or the pleasures their neighbors can obtain from designating themselves as morally superior to any one who has not caught up with the times. Both of these statistics for those under-30 represent the values of a generation which does not believe that sex, marriage, procreation, and child-rearing are integrated concepts, but see them instead as separate and distinct, alien to each other, and having nothing to do with each other.  Of course, none of these attitudes are their fault: They learned these lessons from their elders.

None of this is intended as a claim against the inherent dignity and rights of those with a minority sexual orientation.  It should of course be noted that homosexuals are entitled to be treated with fairness and dignity in our law and in our culture; that they are entitled to have their deepest relationships respected and preserved and afforded the same inheritance and similar rights as other couples (all of which could have been done, however, without revising the definition of our society's most ancient and stabilizing institution).  It should also of course be clearly stated that homosexuals are not primarily to blame for the impending world of even more single-parent children which is now on our doorstep.  The vast majority of children who will be deprived of either a mother or (almost always) a father in the coming generations will be so deprived as a result of selfish and irresponsible choices by heterosexuals. And it is the past selfishness of heterosexuals, in their enthusiasm for extramarital promiscuity, no-fault unilateral divorce, universally accessible birth control, abortion, and all the rest, which created the circumstances which homosexual activists were smart enough to exploit to ask for a change in the law which would have been unthinkable without these prior, heterosexual, attacks on marriage.  If marriage had not already been so degraded as to lose its meaning almost entirely anyway, the any-two-persons marriage movement would have made no sense, because people would have remembered what marriage really was.  Heterosexuals have already severed the tie between marriage and sex and procreation and child-rearing, and therefore have had no moral leg to stand on in resisting demands for redefined marriage.  Nevertheless, marriage as the union of any two persons, will forever alter the understood definition of the institution which has always heretofore stood at the heart of Christian sexual morality, and will thereby prove to be not only the final nail in the coffin of Christian sexual morality, but the irrevocable nail which prevents us from ever again reviving that code, as its keystone concept (the institution of marriage as the only appropriate context for sexual relations, so as to ensure that every child has a mother and a father) will have been abolished from the entire arch

The Price We Have Paid.  The rejection of each element of the Christian sexual code has been seen by liberals as cause for celebration: as individual liberties and freedoms increase, as old-fashioned social mores fall, we have been told, time and time again, that we are heading towards a new age of Aquarius.  However, what has actually happened, time and time again, is just the opposite: a new age of selfishness and nihilism. The idea that the rejection of each element of “archaic and repressive” Christian sexual morality represented an unqualified and unmitigated, cost-free advance for human happiness, and that a sexually amoral world could be enjoyed without any negative offsetting consequences, or price, has, time and again, proven simplistic in the extreme.  The old sexual code stood for the proposition that sex, marriage, procreation, and child-rearing should be integrated and whole and unified processes, so as to ensure that most children would be raised by their own mother and father, which in turn is the least restrictive means (requiring the least amount of governmental involvement) to raise children to responsible, law-abiding, self-sustainable adulthood.  The rejection of each element of the code stood for the proposition that adult desires should preempt these claims, even if children were thereby rendered less likely to have their wants and needs fulfilled, by a mother and a father, and therefore more likely to require the assistance of the State. It takes a lot of provender to raise a human child, both emotional and material, and a mom and a dad, preferably one’s own mom and dad, simply provides humans with their best possible chance at a successful and happy life. (This is what is so bizarre about so-called libertarians' support for any-two-persons marriage.  This is a group that claims to want smaller government, but is blind to the fact that a morally permissive society can NEVER hope to enjoy a small government. The two concepts are simply incompatible.) Therefore, the old code ensured that a child would not be denied of its prima facie right to a relationship with his or her own mother and father, except and unless when in the best interests of the child, and never merely to gratify adult desires. The old code stood for the proposition that the needs of society’s most vulnerable class (newborn children) should have priority over the wants of society’s most powerful class (adults).  The new code stands for the opposite proposition, that the wants of the most powerful should preempt the needs of the most vulnerable, including the need of a child to have both a father and a mother.

The future?  More children will emerge from childhood with psychological trauma scars instead of psychological strength.  More families will be unable to provide for their children, so that the State will have to become increasingly large, to provide for them instead: acting as caregiver to the young unmarried mother and her children, and, eventually, as disciplinarian to her sons.  But there will be fewer and fewer adults who have the psychological capability to keep a job to pay the tax burden which will be required for the State to provide this intervention.  And round and round the vicious cycle goes, like all vicious cycles, in the direction of a flushing toilet.

Is America’s Decline and Fall Inevitable? A Pessimistic View. Part IV: The Fall of Rome. The Decline of the Rule of Law and the Rise of the Rule of Rulers.

"Roper: So now you'd give the Devil benefit of law! More: Yes. What would you do? Cut a great road through the law to get after the Devil? Roper: I'd cut down every law in England to do that! More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, 
Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, 
not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake." Robert Bolt, A Man for all Seasons

John Adams and his fellow founders differed on many political questions, but they shared a common admiration for the Roman Republic, before it became a military dictatorship under Julius Caesar. One of their dreams was to establish a nation which would be based on an ideal that Rome had at least sought after: “the rule of law, not of men.”  In other words, they desired to create a society which would not be governed by the desires of a powerful dictator, or a powerful mob, but by laws, written in conformance with commonly understood and objective standards, equally applicable to all, rulers and ruled alike, and administered by tribunals themselves created in accordance with appropriate rules.  The twin evils sought to be overcome by the rule of law are Jacobin mob anarchy on the one hand, or dictatorial tyranny on the other hand.

What Does the Rule of Law Mean?

"We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law."  Joseph Smith.  12th Article of Faith of the Church of Jesus Christ of Latter-day Saints.

The rule of law means that a society passes and enacts and enforces rational laws in a manner designed to ensure government by the consent of the governed, for the benefit of its citizens, so that its citizens are protected against harm to their persons, their property, their security, and their liberty, both from the government (i.e., being protected from tyranny) and from their fellow citizens (i.e., being protected from anarchy).

Here’s my own personal working list of the elements necessary to establish and maintain the rule of law:

(1) The system by which laws are created, administered, and enforced, is, in and of itself, subject to previously adopted procedures, which procedures contain such safeguards (including transparency and accessibility) against corruption as are necessary to ensure government by the consent of the governed. For shorthand, let’s call this the rule of established procedures.

The rule of established procedures can be accomplished, for example, via a written and publicly adopted Constitution, which prescribes which members of the government are responsible to create, administer, or enforce the laws, how those members of the government are chosen, what the scope and limitations are upon their power, what procedures they must follow, how public their deliberations must be and what ethical rules they must follow to avoid corruption.  Ideally, in case weaknesses are identified in the procedures, the Constitution or other procedural source ought to have methods in place for amending and altering and revising its terms, through public action, which should not be so difficult, as to rarely be invoked, but which should also not be so easily invoked, as to lead to frequent upending of the entire system, since one of the points of even striving to maintain the rule of law is to promote a somewhat stable society.

(2) Laws must be neutrally adopted and objectively and equally applied [allowing for exceptions to equal application based on objective criterion, such as mental incapacity], regulating, promoting, or restricting only particular behaviors, not particular classes or groups of persons, without favoring any class of people over another merely on the basis of their identity (with exceptions based on objective criterion-such as an exemption for mentally incapacitated persons), and should therefore be applied equally to the members of the government as to the citizenry, and should avoid preferring the powerful over the powerless (or vice-versa), the rich over the poor (or vice-versa), the religious over the non-religious (or vice-versa), one race over another (or vice-versa).  Let’s call this the rule of objective neutrality.

There are two main evils the rule of objective neutrality is designed to protect against: One is a government whose members consider themselves above the laws.  Such a government, which is seen and treated as separate from, and superior to, the people, soon becomes a government of rulers over subjects, instead of being a government full of servants to their fellow citizens.  This violates the principle that if a government is not of the people, for the people, by the people, it has no justifiable basis for its existence.  It also leads to bad laws, as a legislator (or chief executive, or judge, or police officer, or school teacher) who is protected from the laws which she enacts (or enforces or interprets or administers) has little reason to care about the negative adverse consequences of laws which will not apply to her.

As stated by James Madison in Federalist Paper No. 51: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The second evil which the rule of objective neutrality is designed to protect against, is the use of the law by one politically favored group or another, as a tool to promote their own power at the expense of the power or liberty of some other group.   As David Mamet puts it in “The Secret Knowledge: On the dismantling of American Culture” laws should be “decided upon in tranquility, without reference to the individual, and based upon behaviors” so that the governed will know what behaviors are and are not acceptable.  When laws created on this basis are “cast aside or vitiated by reference to merit, fairness, or compassion, all of which are inchoate, subjective, and nonquantifiable” justice is corrupted.

(3) The whole point of government is to protect the citizenry from the dangers inherent in living in anarchy.  If anarchy and chaos were preferable to government and law, there would be no need for any government or any laws, and men would not seek to establish them.  Our individual laws ought therefore to pass a similar test: they ought to have some rational basis for existing, and, what is more, their existence ought to make the nation or state where they apply a better place for its citizens to live in than it would be if the law in question did not exist.  Since all laws come with costs (including the inherent loss of liberty which every law represents, together with whatever other costs or unintended consequences any law may cause), in order to pass this test, a law should do more good than harm.  Let’s call this the rule of balanced rationality, that a law which has no valid basis for existing, or which does more harm than good, violates the rule of law.

C.S. Lewis put it like this: “It is easy to think the State has a lot of different objects–military, political, economic, and what not.  But in a way things are much simpler than that.  The State exists simply to promote and to protect the ordinary happiness of human beings in this life.  A husband and wife chatting over a fire, a couple of friends having a game of darts in a pub, a man reading a book in his own room or digging in his own garden–that is what the State is there for.  And unless they are helping to increase and prolong and protect such moments, all the laws, parliaments, armies, courts, police, economics, etc., are simply a waste of time.”  From Mere Christianity.

There might be many objections to including this tenet on a list of the elements of the rule of law, as it is a subjective and substantive test, that has more to do with the reasons why people will argue for or against the passage of a particular law, than whether that law was enacted in accordance with procedures designed to safeguard government by the consent of the governed.  It is a question for the legislature, rather than the judiciary (which we somehow have come to believe is the only forum where the question of a law’s legitimate passage in accordance with the precepts of the rule of law may be properly examined).  Still, I will insist on its inclusion, and should perhaps have placed it first, because it represents the reason and purpose for even striving to establish and maintain the rule of law in the first instance.  If the rule of law does not serve to promote rational laws, and to protect against being governed by arbitrary and capricious Alice-in-Wonderland absurdities, then the rule of law is not worth promoting in the first place, and we’d be better off going back to the rule of men, and hope that, once in a while, we get a benevolent dictator.  

Moreover, when laws are not respected, respect for the rule of law wanes, and the rule of law itself becomes more difficult to maintain.  Accordingly, the rule of balanced rationality is, in my opinion, just as vital to maintaining the rule of law as anything else on the list.  As stated by liberal 7th Circuit Justice Diane Wood, in a Chicago Law Review article, “The Rule of Law and Times of Stress” 70 University of Chicago Law Review 455 (2003): “Neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.”  Or, as put by a conservative commentator, Niall Ferguson, in The Great Degeneration, How Institutions Decay and Economies Die (Penguin Press 2013), “The rule of law has many enemies.  One of them is bad law.”

How the Rule of Law Is Being Subverted Today.

America! America! God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law! 

If the rule of law is one of the three legs of the stool of Western Civilization, then western civilization is in trouble.

Let’s start with the rule of established procedures, and the rule of balanced rationality.  In the United States, the established procedures designed to produce nonarbitrary, rational, laws, are set forth in our Constitution, and include legislators who enact the laws, a judiciary which interprets the laws, and an executive branch which enforces and administers the law.  State Constitutions typically set up similar systems. Of these three branches of government, the least democratic, and therefore the most potentially dangerous, is the judiciary.  As legislative activists have come to realize, amending the Federal Constitution, or a State Constitution, through the procedures established therein is, as it should be, somewhat difficult.  There have been far more unsuccessful, than successful, attempts to amend the U.S. Constitution.  This is a good thing.  It makes for stable government.

But there is another way, subversive of the intent of the document itself, to amend the U.S. Constitution surreptitiously.  This can be done by getting Justices of the U.S. Supreme Court (or Federal Circuit Court Judges or even District Court Judges in areas where the U.S. Supreme Court has not yet ruled), to suddenly discover that the U.S. Constitution contains provisions within it which nobody has ever read before.  Many concerns have been expressed by conservatives over the controversial decisions that various Federal Courts have imposed upon us by reading penumbras and emanations from the Constitution which no one had theretofore ever seen, and which were clearly contrary to the text and original intent thereof, allowing Judges to amend our Constitution by judicial fiat and decree. The best and most influential treatment of this disease is still Robert Bork’s The Tempting of America.  But there is another even deeper concern, which is  the manner in which lower court Judges, and State Court Judges, have followed the Supremes’ example, and decided that the law is now a merry playground in which a judge can decide a law means whatever he or she wants it to mean, in order to reach a decision which he or she wants to reach, to favor a party or political cause with which the Judge agrees, regardless of the actual text of the statute.

This makes for bad politics, as when the New Mexico Supreme Court, in order to thump people of faith for their backward ways, and educate them in the new order of things, recently upheld a statutory anti-discrimination fine against husband-wife private business owners, for declining, on religious grounds, to photograph a same-sex commitment ceremony.  In order to reach this result, the Court obtusely and deliberately misread a statute which merely prohibited a private business from discriminating based on a potential customer’s sexual orientation (a perfectly constitutional law, if it had been applied correctly and as written).  But in determining that the law was applicable to the facts before them, the Court ignored and rejected the business owners’ testimony and arguments that they would not have refused to provide portrait or other photography services to any potential customer, due to that customer’s sexual orientation.  Rather, they only objected, on religious grounds, to attending and participating in, and thereby impliedly endorsing, a ceremony or other conduct which the business’s owners opposed on religious grounds.   In order to reach this result, and then contend the result did not violate the Constitutional right against infringements on the “free exercise of religion” the New Mexico Supreme Court had to interpret “sexual orientation” incredibly broadly, and contrary to how it was defined by and for purposes of the legislation, as including “conduct”; and then had to read the “free exercise” clause, in contrary fashion, incredibly narrowly, as not involving “exercise” at all, but merely private worship, thoughts, and beliefs, which are apparently only to be protected if not freely "exercised" or acted upon, outside the mind.  Thus, a statute which protected against discriminating due to a customer’s sexual orientation, was read to require, under threat of State coercion, thousands of dollars in penalties, or the loss of one’s ability to practice one’s chosen profession, participation in conduct engaged in by the potential customer which a private photographer might find offensive, while the free “exercise” of religion clause of the Constitution was read as narrowly as possible, as not protecting conduct.

But in less politically charged cases, the damage is just as real.  If judges now get to make up the law as they go along, rather than having to follow the laws which were actually written in accordance with the procedures set forth in the Federal or State Constitution at issue, the laws will be applied differently depending on whose courtroom one is in, and will be arbitrary, and the system which creates this arbitrariness is to be found only in the judge’s own mind, not in the legislature from which the law originated in the first place.  One of the points of the rule of law is to allow individual citizens and businesses to order their affairs in accordance with laws, knowing ahead of time how those laws are most likely to be applied.  As an ABA educational web page on the importance of the rule of law puts it: “The rule of law also requires that people can expect predictable [not arbitrary] results from the legal system[.]  Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a rule of law does not exist.”  But with every Judge now having learned from the Supremes that the law doesn’t always say what it says, and the text of a statute doesn’t always mean what it means, if you can find a way to read your own personal political preferences into the statute, and thereby re-write it as though you were your own superlegislature, the rule of established procedures and balanced rationality are both violated.

As a working lawyer appearing in front of actual judges, I can tell you this problem is very real.  The inability to say to a client, here is what your contract says, and here is what the statute says, therefore you are likely to experience “X” if you go to court, is a problem that arises fairly frequently.  Perhaps not in every case.  Sometimes things really are clear enough and black and white enough to give your client a 90% or better likely outcome scenario regarding their matter.  But, more often than should be the case, you can’t do much to predict the outcome because the legislature wrote an ambiguous statute and/or the judge may decide how he wants to come down based on other factors and then set forth his results-oriented reasoning after the fact.  This lack of predictable outcomes causes real losses of real money in the real world.  It is a tax on business, and therefore on employment, and therefore on the entire economy.

With respect to the rule of objective neutrality, our government no longer even pays it lip service.  A massive federal regulation of healthcare is passed, which will have devastating consequences for certain existing health care providers, insurers, employers, and their customers.  But, if you work for the Federal Government, or for someone who contributed to Obama’s campaign, have no fear: the government will exempt itself from the legislation, or from certain of its more onerous provisions, and will also exempt its politically well connected friends and allies.  A special tax you must pay if your health care insurer is overly generous?  Yes, if you work in private industry.  No, if you work for a large union.  Why not violate equality and favor some politically favored groups over others, in a country which has decided it is perfectly appropriate to pass laws requiring governmental entities to prefer some businesses over others when they apply for a government contract, based on the skin color of the business’s owner, or to discriminate against Asians when they apply for college, because their devotion to academic rigor spoils the University's plans for perfectly balanced diversity.

The rule of objective neutrality is also violated by the sheer volume of laws and corresponding regulations the U.S. government, the States, and their various bureaucracies (working in a largely secretive and non-democratic manner) now produce.  Who can keep up with this stuff?  No one.  Therefore, who is more at danger of unknowingly violating one or more of these thousands of statutes and regulations, as they go about their daily business: the rich, who can afford the lawyers and CPA’s and compliance advisors who can assist them with this morass?  Of course not.  It is small businesses who just have to operate under the risk that one day they’ll discover something they were failing to do is now going to shut them down.  It made world headlines when a citizen of Tunisia burned himself in protest against his inability to obtain a license for his small street vending business, which sold produce from a wheelbarrow, but repeatedly faced police harassment. Meanwhile, in America, how long does it take to obtain a license to sell lemonade on a street corner, and how many bureaucracies must one go through to get the job done?

In his book, The Great Degeneration, Niall Ferguson argues that the rule of law has been supplanted in the west with the rule of lawyers.  He reviews the incredible costs on productivity and innovation, and the incredible drag on economic prosperity, which the U.S.’s increasingly flawed legal system have created.
As reported by Ferguson, when U.S. business owners who have moved their operations overseas were asked to list the top areas where they saw the U.S. as falling further behind the rest of the world, their top ten responses included the following: the effectiveness of the political system; the complexity of the tax code; regulation; the efficiency of the legal framework; flexibility in hiring and firing.

We have too many laws, and they are too arbitrary, and they are unfairly and unequally applied.  And this is one more way in which we are voluntarily harming ourselves.

Is America’s Decline and Fall Inevitable? A Pessimistic View. Part V: Conclusion.

I have heard it said that there is nothing that is wrong with America that cannot be remedied by what is right with America.  I would like to believe that is still true.  But if what is wrong with America continues to corrode and erode what is right, it won’t be true much longer.