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Monday, October 18, 2004
Consensus And Constitutional Order, Part Four: Failures Of Consensus
It is inevitable, when attempting to mold the behavior of a living system, that our results will deviate from our ideals. Even the simplest living systems imbed a dynamic of their own, to which they will give first priority even under severe constraint. Perhaps the best example of this is the art of bonsai, in which a small tree is made the basis of a living sculpture. Theodore Sturgeon gave it a memorable cast in his classic novelette “Slow Sculpture”:
Only the companion of a bonsai (there are owners of bonsai but they are of a lesser breed) fully understands the relationship. There is an exclusive and individual treeness to the tree because it is a living thing and living things change--and there are definite ways in which the tree desires to change. A man sees the tree and in his mind makes certain extensions and extrapolations of what he sees and sets about making them happen. The tree in turn will do only what a tree can do, will resist to the death any attempt to do what it cannot do or to do it in less time than it needs. The shaping of a bonsai is therefore always a compromise and always a cooperation. A man cannot create a bonsai, nor can a tree. It takes both and they must understand one another. It takes a long time to do that. One memorizes one’s bonsai, every twig, the angle of every crevice and needle, and, lying awake at night or in a pause a thousand miles away, one recalls this or that line or mass, one makes one’s plans. With wire and water and light, with tilting and with the planting of water-robbing weeds or heavy, root-shading ground cover, one explains to the tree what one wants. And if the explanation is well enough made and there is great enough understanding the tree will respond and obey—almost…
It is the slowest sculpture in the world, and there is, at times, doubt as to which is being sculpted, man or tree.
The central lesson here is one the would-be reshapers of society—any society—would do well to absorb.
It takes a remarkably high degree of consensus about a law to make the law both effective and tolerable. As an example, consider recreational drug use. The popular consensus on the importance of suppressing recreational drug use by force of law hovers around 88%—and it isn’t high enough. The recreational-drug “industry,” if I may call it that, is in the hundreds of billions of dollars per year, and has turned large swathes of major American cities into places decent persons don’t dare to visit. Drugs are a major factor in police and governmental corruption, and in the extraordinary burdens upon the American judicial and penal systems.
To make the drug laws effective, those who believe in their rightness and necessity would have to persuade nearly everyone else in the country to believe as they do, and to act according to those beliefs. This has nothing to do with whether the use of recreational drugs is right, wrong, bad or good; it’s solely a matter of the capacity of the law and the police power to change the behavior of a dissenting minority.
We face a similar problem in the matter of abortion. Though a majority of Americans polled detest abortion and consider it vile, the consensus is not nearly strong enough even to sustain a law banning the worst form of the practice: partial-birth abortion. Not only are there too many dissenters from the consensus, but also the typical opponent of abortion is himself not willing to use force to prevent one. So the pro-life forces, even though they command majority sentiment, are incapable of achieving their goals.
Drug use is illegal, and is causing America immense problems. Abortion is legal; except for the body count, it’s causing only some heated political debates. What would happen if the pro-life majority were somehow to ram through a Constitutional amendment that bans all abortions?
I believe that, given the current balance of sentiment on the subject, we would see all of the following:
- The 33% (or more) of Americans who believe abortion to be an individual right would rise in a fury; political campaigns would revolve almost entirely around the subject.
- Current abortionists would “go underground” in a slew of ingenious ways.
- Pregnant women would be much less likely to consult an obstetrician early in their pregnancies, simply to “keep their options open.”
- The price of an abortion would rise, and the risks involved in obtaining one would increase.
- Some policemen and police departments would run “protection rackets” for abortionists, much as they do today for prostitutes, drug users, and drug dealers who are willing to pay in cash or services.
- The old practice of “going away to keep company with a spinster aunt” would be revived, except that no baby would result.
- Because it would be widely known that the law was unenforceable, respect for the law in general would weaken, with implications for law-abiding behavior that are difficult to foresee in detail but would be just as unpleasant for our social order as the ones listed above.
All of this, because a two-thirds consensus is not strong enough to sustain a law banning what the dissenting third regards as an individual right. A similar consensus was incapable of sustaining Prohibition. An even stronger consensus has proved unable to check the use of recreational drugs.
The recognition of such perversities in the social order is what drives an important, though recently neglected, principle of lawmaking and jurisprudence: Do not extend your authority beyond the power to enforce your will. The power to enforce one’s will derives almost wholly from the consensus; even a completely amoral State would not be able to kill fast enough to impose its will against a significant degree of resistance.
Thus, as we have seen in recent years, the political capacity to make a law is far from being a sufficient reason to do so. There are fewer lawmakers who understand this than there ought to be.
This is not a way of saying “if you can’t beat ‘em, join ‘em.” It’s a plea for perspective, and an insistence on the priority of establishing an ironclad, near-perfect consensus among private persons before attempting the maze of the law. President Bush appears to understand this. Despite his strong belief in the sanctity of unborn human life, he won’t attempt to push a ban on abortion; he knows the consensus is insufficient. Instead, he promotes a “culture of life”—really another way of saying that he’s trying to augment the existing pro-life consensus to the point where it will sustain significant restrictions on abortion, if not a total ban.
It’s a hard road, but if we want to preserve our social order, there is no other.
Comments
As you know, I have long believed that the abortion issue is best combatted when those who have been voluntarily choosing to abort their own posterity come to comprehend that they are committing suicide of a sorts.
Furthermore, what used to be called “moral leadership” has been supplanted by “laissez-faire” leadership which is content with letting natural selection thin the suicidal from the gene pool. The Malthusian vision, no matter how often proven wrong, still provides cover for the misanthropes amongst our elites.
You and I have discussed it before. You’ve written 3 very good pieces on the subject directly, and much else you write about has this anti-human element at its fosterer. That element is obviously promoting excessive drug use (much of that as a consequence of illegality), and the norming of unbridled homosexual conduct.
Still, most who are anti-self-destructive behavior are foolishly waiting for the state to step in rather than speak up about it. Like the subjects are too tacky. Too close to home.
With all of the blogs, why are so few following your lead Francis, in regularly
exposing the cosequences of self-destructive behavior? I think its because they have been cowed by the moral relativists. That has gotta change.As for the MSM’s silence, you touch on again why they are silent: there is hardly any institution more obviously and thoroughly corrupted than MSM. What more evidence is needed than their highly paid, suitably coifed, sonorous morons, who deliver daily does of drivel and falsehood? We’ve gotta make the elites really feel uncomfortable.
I think we are.
Posted by pascal on 10/18/2004 at 09:07 AMThe military has a truism they try to follow: “Don’t issue an order that won’t be obeyed” , the rationale of which closely mirrors your arguments. In addition there is a further extension in that “Once an order is issued for a certain effect, an order will always have to be issued to get the same effect”. Thus one should always be careful in issuing orders (or laws for that matter)as they might not be obeyed or will require the same order all the time. I do admire your arguments. Keep up the good work.
Posted by on 10/18/2004 at 01:03 PMExactly how I see it, Frank. I sometimes think those who are pro-abortion are more willing to listen to this argument than some of the adamantly pro-life people. I do not think making a blanket law of banning any and all abortions is any better than the free-wheeling mentality we see today.
Posted by on 10/18/2004 at 01:16 PM
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