|Lillian Gish in D.W. Griffith's A Romance of Happy Valley, 1919, via Giphy.|
So world-famous moral philosopher David Brooks is really pissed off with Anthony Kennedy: not, of course, because Kennedy suddenly decided to retire from the Supreme Court last week, giving Trump a second opportunity to name a Supreme Court justice and reshape the court in the Federalist Society image for the next 30 or 40 years, but for something Kennedy did 26 years ago ("Almira Gulch, for 26 years I've been dying to tell you what I think of you!"), when he single-handedly turned the philosophical collectivism of our Founding Fathers into the amoral, dog-eat-dog philosophical jungle we've been living in ever since, which you may not have noticed but it looks pretty serious ("Anthony Kennedy and the Privatization of Meaning"):
America’s founders certainly believed in individual liberty, but they believed that liberty happens within a shared community. They began the Constitution with the phrase, “We the People.” We are all one thing — a people, a nation, a collective.Yes, instead of starting off the Preamble with "I James Madison, I Alexander Hamilton, I William Samuel Johnson, I Rufus King..." as you would have expected, though it would have made the Preamble kind of long, they just used the plural, quietly inventing the great American concept of corporate speech.
Or not, you know, because that opening has a political purpose, not a philosophical one, to schmear over the fact that the authors were in fact the unelected and legally unauthorized Constitutional Convention, one thing—a committee, a conference, a collective—with the fiction that they actually represented everybody, as the document would once the several states had hopefully voted on it; and it wasn't the individuals of the community they were trying to rise above, but the quarrelsome states, whose loose organization had been preventing them for the past dozen or so years from getting anything done. They were saying, effectively, "We 55 delegates are for the present purpose everybody", which is very different from actually turning themselves into some kind of literary soul-plasma covering the entire territory.
Over the decades, that sense of we-ness began to turn into a sense of I-ness or you-ness. You can see it in today’s commencement clichés: Follow your passion, march to the beat of your own drummer, listen to your own heart, you do you.The "different drummer" is from the concluding chapter of Henry David Thoreau's Walden (1854), you know:
Shall a man go and hang himself because he belongs to the race of pygmies, and not be the biggest pygmy that he can? Let every one mind his own business, and endeavor to be what he was made. Why should we be in such desperate haste to succeed and in such desperate enterprises? If a man does not keep pace with his companions, perhaps it is because he hears a different drummer. Let him step to the music which he hears, however measured or far away.Not exactly a beastly innovation of the Clinton years. I can appreciate that some people find Thoreau disagreeable—most of his friends did, from time to time—but I've never heard anybody suggest that he was in some sense un-American.
And how does Kennedy get into it?
Justice Anthony Kennedy didn’t invent the shift from community to autonomy, but in 1992 he articulated it more crisply than anyone else: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
In this sentence, which became famous as the “mystery of life” passage, there is no sense that individuals are embedded in a social order. There is no acknowledgment of the parts of ourselves that we don’t choose but inherit — family, race, social roles, historical legacies of oppression, our bodies, the habits that are handed down to us by our common culture.
There’s no we. We are all monads who walk around with our own individual opinions about existence, meaning and the universe. Each person is a self-created choosing individual, pursuing individual desires. There is no sense that we are part of a common flow connecting the past, present and future; instead, each of us creates our own worldview anew.Okay, point one I want to make here is that Brooks doesn't mention at any point in this column what Kennedy was talking about in 1992, or with respect to what mystery in particular, which is the case of Planned Parenthood v. Casey, in which PP complained that Pennsylvania's abortion law made it intolerably difficult for a woman to obtain an abortion, and the majority sided with the family planning organization, reaffirming Roe v. Wade. The question the "mystery-of-life passage" was meant to answer was the question whether the state of Pennsylvania
can resolve these philosophic questions [of the “profound moral and spiritual implications of terminating a pregnancy”] in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.And the passage in full answers that it cannot, because
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.Brooks is hiding the fact that this is the issue of the opinion in question, because he knows Times readers, like most Americans, generally agree with it and really don't think the state ought to be able to force a specific metaphysics of personhood on the population, and will recognize that his reaction to it, with this rage that individuals could have "their own opinions about existence, meaning, and the universe" and "pursue individual desires", is pure hysteria. (Or maybe not, come to think of it: it's possible that Brooks literally doesn't know the formula comes from an abortion case, though his sole source for the argument, an old First Things post by Yuval Levin, notes it clearly enough, but I really don't want to think even he could be that slovenly.)
Also, we don't even know for certain that Kennedy wrote the words: the opinion is jointly signed by O'Connor, Kennedy, and Souter and not Kennedy alone, a "we" rather than a nomad monad—though Kennedy was clearly fond of the formulation, quoting it in Lawrence (2003) striking down the Texas anti-sodomy law (which is what prompted Justice Scalia to sarcastically refer to it as the "famed ah-sweet-mystery-of-life passage", that's how it became famous).
It really is hysteria, too. In what sense is there in Casey "no acknowledgment of the parts of ourselves that we don’t choose but inherit—family, race, social roles, historical legacies of oppression, our bodies," when there's in fact a great deal said and much more implied about the historical legacy of oppression of women and their bodies and no reason to discuss race? In what sense is there "no sense that we are part of a common flow connecting the past, present and future"? To me every word here is pregnant with the impulse of the English Dissenters who founded the New England colonies with a myriad of mutually hostile churches each insisting on the necessity of every man interpreting the Scripture for himself and the Establishment Clause of the First Amendment to the Constitution. No government in Harrisburg can tell me a fetus is a person if that's not how I see it!
What's really crazy, as opposed to merely dishonest, in this column, is that hysteria, the idea that somehow Casey is forcing the whole population into a moral relativism as if it were going to be a state church, as opposed to acknowledging the fact that our society as it's developed since the 18th century doesn't have and has never had a single moral standpoint.
The second problem is that Professor Kennedy gives us a homework assignment that almost none of us can actually fulfill. Each of us has to define our own “concept of existence, of meaning, of the universe, and of the mystery of human life.”
Wow! That requires a lot of background reading. If your name is Aristotle or Nietzsche, maybe you can do it, but for the rest of us it’s going to be tough. We’re busy!Where? Where does the opinion say we have to do that? Where does it say anything other than that Harrisburg can't stop a woman from obtaining an abortion on theological grounds? Or more broadly that you may define your own concept of existence if you feel like it, and nobody in Harrisburg is allowed to say you can't?
It's pretty rich coming from a man who's been quilting his own unique little religion out of little panels of Catholicism and evangelical Protestantism and Reform and Conservative Judaism in public for years to suggest that there's anything wrong with it, too.
Nobody in America is required by anything in American law from the First Amendment through Casey and beyond to be a "moral relativist". Everybody is required to recognize that "we the people" have a wide range of views, including any Aristotles or Nietzsches in our midst (it's pretty funny to make that list out of Aristotle, who certainly didn't aim at creating any new and novel ethics so much as formulating what everybody would recognize as true). If you don't think so, if you think allowing people to "walk around with our own individual opinions" is a problem, you have an awfully defective understanding of how that American experiment is supposed to work, e pluribus unum, with a mosaic of philosophical positions cross-cutting our mosaic of ethnicities: that the "unity" isn't predicated on uniformity, but on mutual respect. The individuals may not mostly be moral relativists, but the collectivity is morally relativistic by definition, that's really how the "we-ness" of this polity has always been defined.
Nomad monad Brooks has been wandering into a very weird territory of late, ahistorical and absolutist, and I'm afraid he's getting lost worse than usual, and possibly lying to himself even harder than he's lying to us. And he's a terrible philosopher. And leave Kennedy alone, as we head toward a situation where Emperor Trump crafts a Supreme Court more to his liking and even more predictable decisions, for heaven's sake!