The Future of Tradition — Can it withstand the onslaught of reason?

America has been in the midst of a culture war for some time and will probably remain so for some time longer. But culture war is not peculiar to this country. Indeed, there have been at least three great culture wars fought in the course of Western history, including one contemporaneous with the rise of the Sophists in ancient Greece, the epoch identified with the French Enlightenment and the German Aufklärung, and our own current battle. The first two ended in disaster for the societies in which they occurred — and the outcome of the third is still pending.

Each of these wars has its own particular antagonists, each its own weapons of combat, each its own battlefield. But the essential nature of a culture war is invariant: A set of traditional values comes under attack by those who, like the Greek Sophist, the French philosophe and the American intellectual, make their living by their superior proficiency in handling abstract ideas, and promote a radically new and revolutionary set of values. This is precisely what one would expect from those who excel in dispute and argumentation.

In every culture war the existing customs and traditions of a society are called to the bar of reason and ruthlessly interrogated and cross-examined by an intellectual elite asking whether they can be rationally justified or are simply the products of superstition and thus unworthy of being taken seriously by enlightened men and women.

Indeed, there could be no better example of this disdainful attitude toward inherited tradition than that displayed by the chief justice of the Supreme Court of Canada in discussing her court's legalization of gay marriage, clearly expressed by her summary dismissal of any opposition to the high court's decision as arising from nothing more than "residual personal prejudice." Against such opposition, it is no wonder that many conservatives — including many of those who call themselves neoconservatives — have attempted to combat the opponents of tradition with their opponents' own weapon of enlightened rationality.

But is it possible to defend tradition with the help of reason? Can a particular tradition be justified by reason? And what if our traditional belief conflicts with reason — can we rationally justify keeping it? Suppose we have been raised in the belief that we must wash our hands before every meal in order to appease a local deity in our pantheon, say, the god of the harvest; and suppose again that we have come to learn of the hygienic benefits of washing our hands before every meal. Must we keep the absurd tradition once we have grasped its scientific rationale? In either case, whether tradition and reason conflict, or tradition is revealed to be reason disguised, reason wins and tradition loses.

Where reason shines forth, then, tradition is no longer necessary. Hence the question before us: In a world that is being more and more rationalized, does tradition have a future? Or will we one day look upon it as we now look upon the myths of the ancient world — quaint and amusing, but of no real relevance to our lives?

Lee Harris
Opinion Journal
http://www.opinionjournal.com/extra/?id=110006922

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The Ginsburg Standard

Twelve years ago at a Senate Judiciary Committee confirmation hearing, Sen. Patrick Leahy propounded a theoretical question about constitutional separation of church and state. "I prefer not to address a question like that," replied the Supreme Court nominee, Judge Ruth Bader Ginsburg. Leahy, a dogged questioner, pressed for an answer. "Senator," Ginsburg persisted, "I would prefer to await a particular case." In response, Leahy was uncharacteristically obsequious: "I understand. Just trying, Judge. Just trying."

Will Pat Leahy, now Judiciary's ranking minority member, and his Democratic colleagues exercise such forbearance when Judge John G. Roberts predictably takes the same posture Justice Ginsburg assumed in July 1993? That would be most unlikely. With Roberts leaving a meager paper trail and a short time on the District of Columbia Circuit Court, Democrats are preparing hundreds of the substantive questions Ginsburg refused to answer.

Accordingly, Roberts's confirmation managers are putting forth the "Ginsburg Standard." That challenges Democratic senators who in 1993 did not criticize the petite (barely more than 5 feet tall), 60-year-old woman when she coolly refused to answer questions. But then, there was no threatened move of the court's political balance to the right as is foreshadowed today by the Roberts nomination.

There is no constitutional or historical precedent for subjecting judicial choices to a senatorial third degree. No Supreme Court nominee was even interrogated by the Senate until 1925, and committee questioning was sporadic until it became standard confirmation practice in 1955. In 1949, former Sen. Sherman Minton refused to appear as his erstwhile colleagues requested and was confirmed anyway.

Ginsburg, who was the first high court nominee by a Democratic president in 26 years, now is described as ideologically "mainstream." In fact, she was on the left edge as former general counsel of the ACLU (American Civil Liberties Union). Six years earlier, conservative Judge Robert Bork was denied confirmation when hostile questioners drew him into a debate on judicial philosophy. So, it was imperative for Democrats to protect Ginsburg by gagging her.

Washington lawyer Jay T. Jorgensen has prepared a paper for the conservative Federalist Society that summarizes the Ginsburg Standard. He lists seven types of questions she would not answer: no hypotheticals; no requirement for universal legal expertise; no questions outside the nominee's case experience; no cases likely to come before the Supreme Court; nothing regarding management of the U.S. Judiciary; nothing about evolving areas of the law; no discussion of the nominee's personal feelings.

Robert Novak
Townhall
http://www.townhall.com/columnists/robertnovak/rn20050725.shtml

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Debunking the Siren Song of ‘Safe-***’

When it comes to drug abuse, underage drinking and smoking, recent years have seen the arrival of much-needed media campaigns and school programs designed to let kids know flat out: Do not engage. Of course, we still have much to do to curb the use of illicit drugs, but at least most adults are committed to telling kids the behavior is unacceptable.

So why should this rule not apply when it comes to teen sex?

Suddenly, the adults who were so quick, so adamant about condemning drugs, drinking and smoking begin to stammer and look at the floor. Sure, it’s not good for teens to be having sex, these adults will allow, but c’mon — they’re going to do it anyway. So, they say, let’s tell the kids not to do it. But let’s also give them some condoms and other birth-control devices and tell them how to use them. You know, just in case.

To be consistent, then, we should also give kids clean syringes, low-tar cigarettes and tips on avoiding hangovers. But we don’t, do we? And why? Because we know perfectly well that it would undermine our message that the behavior in question is unsafe — no ifs, ands or buts. Why should it be any different when it comes to teen sex?

The fact is, it shouldn’t be. That’s why President Bush deserves so much credit for promoting an unambiguous abstinence-only message in sex education. It’s important to say what we mean and mean what we say — and that’s what abstinence-only sex ed does. It tells our children, just as emphatically as we do with drugs, drinking and smoking, that we’re taking a zero-tolerance, no-nonsense approach. Why? Because we love them, we want what’s best for them and because it’s the right thing to do.

Rebecca Hagelin
Townhall.com
http://www.townhall.com/columnists/
rebeccahagelin/rh20050722.shtml

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The Wisdom of Solomon

Should law schools be allowed to block military recruiters from campus? That's one of the first questions John Roberts will decide as a Supreme Court justice, should the Senate confirm him.

The case, called Rumsfeld v. Forum for Academic Rights, concerns the constitutionality of the Solomon Act, which mandates that law schools will lose their federal funding if they ban military recruiters. In 2003, a coalition of schools sued. Last year, the Third Circuit Court of Appeals ruled in their favor and declared the Solomon Act unconstitutional. The Supreme Court is scheduled to take up the matter in hearings beginning in mid-October.

This week, a group of law professors and students, led by George Mason Law School dean Daniel Polsby, filed an amicus brief supporting the military. The document's signers include Douglas Kmiec of Pepperdine and Robert Turner of the University of Virginia. Polsby's basic opinion about the appeals-court decision can be summarized in two words: It's bogus.

The Solomon Amendment was originally passed in the wake of the 1993 "Don't Ask, Don't Tell" policy when law schools stated that if the military were going to discriminate it would bar recruiters from campuses.

The law was weakly enforced through the 1990s. After 9/11, however, the Defense Department insisted on fuller compliance. In response, the Forum for Academic and Institutional Rights (FAIR), a law-school association, sued the Pentagon.

FAIR lawyer Josh Rosencrantz, in an interview with National Review Online, asserts that "the policy's always been unconstitutional." His association regards the act as a method of suppressing speech. "If the first amendment gives bigots the right to discriminate against gays then certainly it gives the right to right-minded academic institutions to discriminate against bigots."

The most important allegation in the consortium's suit is constitutional; it charges the government with violating the rights of law schools by "impinging on their academic freedom, freedom of speech, and freedom to associate with one another in pursuit of common objectives." FAIR additionally argues that the policy compromises the "inclusive" university messages by mandating the presence of discriminatory recruiters.

Although a New Jersey district court ruled against the plaintiffs two years ago, the Third Circuit Court of Appeals found in their favor last November. It ruled that the Solomon Act "requires law schools to express a message that is incompatible with their educational objectives and no compelling government interest has been shown to deny this freedom."

Polsby disagrees with this ruling. "This is not a free speech case — it's a simple case of the spending clause," he tells NRO. "Congress has the right to condition federal funds on certain minimal objectives." As the brief states: "the Solomon Amendment thus is a perfectly ordinary contractual condition; no different from any that might be attached to a gift or bequest to an academic institution."

Polsby views the lawsuit as fundamentally hypocritical: "The schools are angry at Congress. They say we're not going to allow the military on campus. We like government money so much though, that we'll sue to get it."

Anthony Paletta
http://www.nationalreview.com/
comment/paletta200507220822.asp