At RedState, that wretched hive of scum and villainy, one poster manages to, between an incomprehensibly wrong argument against the Ninth Circuit’s recent decision on Proposition 8, say something interesting. I recommend you skip over everything but the last two paragraphs, reproduced below:
As I’ve written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason – they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.
But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters’ views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.
The point on the presumptive validity of tradition is well-taken; indeed, as we’ve noted before, tradition serves as evidence that a certain practice probably used to work. But we’ve also noted, to answer the author’s narrow conception of when tradition should change, that proof of a new, superior value system is probably too high of a standard for the rejection of tradition. Moreover, it’s not one that we’ve followed. Popular rule was, at the time of its institutionalization in the American Constitution, an unproven system; we had no reason to expect that republican democracy would work for a country as large as the United States, but were impelled to the experiment by a conviction that Europe’s tradition of monarchy simply no longer served. Tradition deserves its due, but its presumption of validity does not deserve to endure until something better comes along.
Separately, we’re handed a populist argument for tradition — that:
The myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers.
No, for several reasons. First, the author’s example fails on its face: the Bill of Rights was enacted wholly by an educated, upper-class elite, acting uniformly against the tradition of the previous millennia of human history. Mankind had at that point no history of institutionalized religious freedom, and yet we have the First Amendment; and to the extent that the Bill of Rights was meant to secure the rights of Englishmen, to which the colonists felt themselves entitled, it secured those rights through the novel concept of a government ordained by law and by men, rather than by God. “An insular number of lawyers” crafted the American system, with the ratification of the colonists, after a prolonged, top-down publicity campaign. Our government is the product of hard-won knowledge, thought, and rigorous debate — not simple homespun wisdom.
Further, it’s true that judges gave us Dred Scott. But that blight on American history was emphatically a defense of the status quo — of Southern tradition, but tradition nonetheless And later judges gave us, in anti-populist top-down fashion, Brown v. Board of Education. Any defense of tradition against its sudden modification by “elite” lawyers must contend with this example, among others, or risk entirely dodging the part of the debate that makes it interesting in the first place.
Finally, query whether “traditional values” can actually claim a populist provenance at all. Many modern religious traditions were the creations of elites, ignored by them but imposed on the people, like (for example) the much-eroded “tradition” against divorce. Others were roundly proclaimed, but rarely followed. Abortion is controversial today only because it’s never been talked about openly until the modern era; the practice dates at least to Roman times, where (extremely dangerous) chemical abortions were regularly practiced among the nobility. Maybe that’s not an argument against the moral value of tradition, but it’s proof that viewing tradition as the result of generations of trial and error doesn’t quite hold up.
Modernity requires us to square practices designed for insular, homogeneous communities with an increasingly interconnected and diverse world. Conservatives like RedState would see us abdicate this duty, close our eyes, and pretend to live in an idyllic past that never actually existed. But, it’s good to see that the author is at least consistent: reflexive opposition to a liberating society is the conservatives’ proudest tradition, even if it’s not one that’s served them well.