The majority in Slaughterhouse correctly rejected the idea that the Privileges or Immunities Clause protects unenumerated absolute rights.
What could be more amusing, quaint really, in the minds of many than meeting in New York City for two days to discuss tradition and law? Yet, I have just returned from such a momentous gathering, described well by Rod Dreher, that featured rising and accomplished law professors, political scientists, and journalists. Our subject was tradition and what it could teach us about law in late-modern democratic society. Not much, you smirk. But if a certain aloofness toward tradition is justified, then perhaps a certain tolerance might be extended those of us who entertain doubts, if only mild ones, about how durable our present situation is.
We can begin with the obvious fact that we live in abundance amidst unheralded opportunities for most Americans. But things which should be solid seem to teeter uncomfortably atop creaking foundations. Is there a coherent American citizenship that emerges from a collective memory and intelligence? What constitution do we now live under? Is the lack of any unifying tradition at the heart of our inability to sustain a constitutional consensus that would guide disagreement about policy means and ends? And maybe that’s just it, a constitutional tradition isn’t something you have to necessarily articulate—you feel it in your hips, as Willmoore Kendall once said. But when it goes, can you get it back?
Talking about tradition is strange in a country composed of citizens who left or whose ancestors escaped nations whose traditions left them unable to be all they could be. Our dry bones come to life when we reflect on the inheritance of heroic migrations. This democratic fact means that America is the country that never experienced feudalism, as Alexis de Tocqueville notes. The fullest part of our tradition might be emancipation itself. And this made America a country capable of receiving and being the vehicle of a providential democratic progress toward individual equality. But equality is easy and dangerous—Tocqueville again—for its tendency to attenuate the distinctiveness of particular persons. In contrast, it’s liberty that needs an apprenticeship and a defense by its more thoughtful denizens.
Even our Constitution would seem to be a document wholly formed and agreed to by consenting citizens. We come to realize that its deeper truths, its political traditions, gradually unfold over time into a political and social order of autonomous adults who leave behind the pre-modern authority of relational institutions that grew out of a thick web of largely unchosen obligations. So on one powerful read, our tradition, to the extent Americans would have such a thing, would be made up of self-chosen entities and practices, all of them equipped with easy exit ramps should the need arise.
We stop being suckers for those who would rule us through religious, familial, and patriotic bonds that evoke shared memory. Who consented to all of that, we say? Isn’t the past just the past, and, quite frankly, embarrassing at that? This understanding is only deepened now that we have it on the pure, incontrovertible authority of Justice Kennedy, no less, that “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Kennedy has thundered that the term “liberty” in the Due Process Clause of the Fourteenth Amendment is now synonymous with autonomy, which is realized by choice and identity creation, the dignity of which must be recognized and affirmed at the point of law.
What all of this could mean is really anyone’s guess. More definite is that the opinion’s received public teaching sunk in with those who have embarked on the bathroom wars, and on the latest language codes that promise civil and criminal penalties for those failing to use the new slate of gender-identity pronouns. Some individuals want to be called a “they” and they must be obliged.
Identity and dignity are both at stake. But does liberty rest in what amounts to Cartesianism on crack, a liberty unable to make sense of the body save for its instrumental uses to the inner, autonomous, willing agent? Give me dignity or give me death, you say; but, I’ll settle for the embodied human person who knows that he or she is an acting composite of soul and body that discloses purposes and goods to pursue.
Similarly, this scaffolding of dignity has, I think, lent renewed credibility to the weaponization of race that we now see on campuses, where, for example, white students at Scripps College were denied use of the coffee bar for designated periods in order to “help” them understand their white privilege. Readers might think such conduct would be, at the least, illegal, but the frown you see will only be your own. Dignity is immune to discursive reasoning, and is a willful act that succeeds when words are tools to enforce meaning rather than to understand reality and nature.
The conversation about competing understandings of liberty is short-circuited by use of the concept of dignity as something that should always be affirmed once it’s asserted, never disagreed with on the grounds of history, reason, or tradition. Yet on the other side of Kennedy’s radical opening statement in Obergefell are the voices of T.S. Eliot, Tocqueville, and Robert Nisbet, who remind us that autonomy produces its own negation that opens it up to collectivism. After all, what would it mean to live in a social and political order where each and every institution was self-chosen? How thick would memory be and how thin might the autonomous individuals who compose such a society really be? That is to say, what really shapes us are the gifts, the memories, and the collective past that provide ballast and also a calling to our personal liberty, apprenticing us in how to use it well. Absent these things, we become the instruments of the biggest game around, the state, which makes and orders the individual, closing him in upon himself.
From the vantage point of tradition, it is this fanciful enshrining of autonomy that wipes out our individuality. How? By emptying our consciousness of the memories it contains of the always-haunted past, in favor of a self-created future. Denying that we are formed by an accumulation of inheritances leaves us nowhere. It leaves us nothing on which to build that self-created future.
As Walker Percy’s protagonist observes in the prosperous yet divided America of Love in the Ruins: “Everyone was happy but our hearts broke with happiness.”
To locate the meaning of all existence within our finite being is to carry more weight than we can bear. If reflection on tradition leads us to the recognition of humility with regard to our past, and how our choices are only an intelligent recreation of the resources we have been given as limited beings in a particular social and political order, then a great deal is accomplished. America is certainly not an exception to the challenge of tradition.