Culture Versus Law

Underneath Herman Cain's troubling comments - Volokh refers to Nine-and-a-Half Amendments in Some Copies of the Bill of Rights - there is a tension in American culture since the beginning that keeps showing up. Everyone is horrified by one side it when it goes against their cultural ideas, but supports it when it flows in their favor.

Every culture outside the Anglosphere defines what it will be with reference to the group more than the individual. New Guinea tribes define what marriage is, Uighurs define what membership is. Druze, and Roma, and Yupik define what inheritance, education, and drug-use shall be. It is the most natural thing in the world for a culture to define stuff whatever way it likes, and to resent it when some more powerful external force tries to make them speak another language or punish theft or celebrate holidays in a different way.

But the Anglosphere, especially the colonies, has bound itself into another method, where the group does not get to make all the cultural decisions. In America, someone can say "I think your definition of marriage restricts my rights, and I insist on that freedom." I chose my example to highlight a controversy where it is the traditionalists who are being group-right rather than individual-right oriented. But there are plenty of spots where it is group rights as defined by liberals - foods, fuel, taxes - carry the day over the protesting individual. And even the deep sentiment is heard as each election or controversial social legislation comes up. "I don't want to live in a society that..." well, there are many choices there.

Mucking it up even further is that the individual's ability to insist creates a culture that some others don't like - and they don't have the freedom to move to a culture where they can have it their way. In America, people keep trying to move off together with the like-minded, so they don't have to have any dark people, or non-Green people, or gay people, or poor people, or Wal-Marts, or people with children, around. Everyone wants to define their culture, because that's what people do. So we resent it when we can't do that, and some person who is different in the wrong way gets to be in our lives and we can't kick them out.

The distinction between the annoyance of a neighbor playing music too loud and playing music we can hear and don't like is not solid philosophically. It annoys Jim that his neighbors are gay. It annoys the neighbors that Jim says that out loud. We try to capture some distinctions in law, with but moderate success.

Herman Cain is worried that the extension of freedom of religion to a group that unifies church and state (in his eyes) will be incompatible with American values, and ultimately American stability. The same argument was advanced about Catholics and Mormons and they seemed to work out okay, so everyone is jumping on Cain as some regressive force. America has had a history of being forced into accepting what no culture wishes to accept - a large majority being overruled and made to do what someone else thinks is better. The current culture refuses to see any problem with further changes, being quite sure that all of them are progress, tolerance, and good.

I tend to agree. But I am not absolutely sure of it. Just because we have absorbed changes A-N doesn't guarantee that change O will go down similarly well. it's always new territory, and one of them may indeed reveal itself to be the suicide pact, the change which undoes all others. It is not knowledge, but faith, that says otherwise. Secondly, there is no neutral culture. Each change is in the direction of someone's preference, making them the powerful ones who do get to have the culture they like, whether others like it or not. The reason for the preference is not always solid, either. We have been legislating in the direction of sexual permission trumping group safety (think disease, think increased crime from illegitimacy, think higher educational cost), while group safety trumps individual freedom in environmental affairs.

We have already seen in the last fifty years how that can go to some folk's heads...