Perhaps my quest for the Single Conservative Principle is Quixotic. But my overall belief is that failures in general thinking lead to failures in specific thinking, and American Conservatives have, in my opinion, failed in a number of specifics. My hypothesis, which I cannot really test, is that improved general thinking might have led to some different outcomes.
Having indicted Conservatism for failing due to lack of a cohesive definition, I have probably obligated myself to make some constructive suggestion, if not a suggested Single Conservative Principle, then at least suggested thinking that might lead in that direction.
An effective political theory should provide some means of identifying how much government is too much, and how little government is too little. The balance point has to be individual rights, in the first instance those rights described as "unalienable", which term began my thinking on this thread about this time last night. Teetering on that "unalienable" fulcrum, how can we recognize those limits on government, too much on the one hand, and too little on the other?
First I argue that "unalienable" is synonymous with absolute, subject to regulation or limitation by no person or entity, except by due process justified beyond reasonable doubt. I frequently remark the distinction between *government* abridging, for example Freedom of Speech, and a private entity abridging Freedom of Speech. Private entities have fairly broad authorities to abridge Freedom of Speech in some circumstances, for example that of an employee on company time. As important as it is, I do not find Freedom of Speech to be unalienable because it can be limited. Similar circumstances can be identified for many other Freedoms we routinely recognize as vital; they are not absolute, so I hold they are not "unalienable."
Then what rights are "unalienable"? Precisely those identified as such by Jefferson in the original political document - life, liberty, and the pursuit of happiness. No person and no government can restrict, regulate, or limit the enjoyment of these rights other than by due process beyond a reasonable doubt. And note, he said "....
among these are life, liberty, and the pursuit of happiness." In his thinking, at least, there can be others. Surely all will quickly agree that the right of one man to pursue happiness does not extend to denying another man life or liberty; the unalienable rights naturally balance themselves among individuals. And I will repeat what has often been said by others - the right to *pursue* happiness implies no right to *be* happy.
On this foundation I hope it is non-controversial to suggest that a society in which one man's unalienable rights are not protected from the predations of another man, is a society which has too little government, and that a society in which government can deny a man's unalienable rights without due process beyond a reasonable doubt, is a society which has too much government. Murder, extortion, and kidnapping are all impermissible; once the demands of due process beyond a reasonable doubt are met, capital punishment, forfeiture, and imprisonment are permissible.
But these unalienable, limiting boundary conditions are inadequate for approaching a meaningful unifying Conservative principle. What about the much larger set of rights, or freedoms, which remain vital to our liberty but are not unalienable? Speech, Free Association, Commerce, Religion? As a generality we recognize that private entities can assert property rights which limit the individual's freedom, in a particular time or place, to pursue those rights, and government can put some limits on those rights without due process beyond reasonable doubt, i.e. without a trial. No one is free to practice any of those freedoms on my property without my consent, and government is duly authorized to prevent the proverbial "fire in a crowded theater", disperse riots, prevent commerce in controlled substances, and disallow ritual human sacrifice. A society which fails to protect my property rights, or which allows me to inhibit these free rights of others away from my property, is a society with too little government; a society which positively regulates how I use my property without harm to others, or that regulates how individualss engage in these freedoms without harm to others, is a society with too much government.
So I come to the concept of
harm to others. I suspect most will agree to the norm that a man is free to do what he wants so long as he brings no harm to others. We can easily justify criminal law on this basis, and in theory, if not in practice, we can justify government's regulatory authority here as well. Further, I'll argue that the principle of no harm to others is the basis of government's authority to regulate non-unalienable (alienable?) rights without trial. But critical to my argument is the recognition that harm can be done to another individual,
or done to society as a whole, and American Conservatives have failed at making the latter case clear.
I offer as an example the arguments regarding legal marriage of homosexuals. Conservatives argue against legal marriage of homosexuals either from positions of faith or of personal disgust, but neither are acceptable bases of civil law in a pluralistic society. We have failed to protect a traditional definition of marriage because we have failed to advocate an argument which falls within the parameters of American law. In my opinion an effective argument against the legality of homosexual marriage describes *in practical terms*, not terms of religion or personal preference, the consequences of that legality in a broader legal context. Marriage has been treated legally as a *kind of* relationship which can produce children. Close blood relatives may not marry because the children born to such a union are far more likely to experience severe physical and mental health issues. It has long been recognized that some marriages will not produce children, perhaps due to infertility of married adults who are of child-bearing age, or because one or the other party to the marriage has previously undergone medical procedures which prevent fertility, or because a marriage unites a man and woman who are beyond child-bearing age. But those marriages have always been regulated the same way as marriages which in fact can produce children - close blood relatives may not marry
whether or not their union in fact can produce children.
Now comes Justice Kennedy, who has decided that marriage is a relationship which grants civil dignity to people's romantic emotions, and homosexual romantic emotions are just as entitled to civil dignity as heterosexual romantic emotions. Until Obergefell, marriage *law* took no account of people's emotions, but it did take account of the likelihood of their blood relationship, because marriage was a *kind of* relationship which by definition can produce children. Well now it's not. Now it's a relationship which dignifies emotions, specifically the emotions surrounding a union which *cannot* produce children. On what basis now can a homosexual couple who are closely related be denied legal marriage? Are their romantic emotions not entitled to dignity? What possible harm can come from their marriage, since they *cannot* produce children? They can adopt, and the fact of their blood relationship will have no impact on the child's health. Why should they suffer the indignity of a legal requirement which is of precisely zero relevance to the dignity of their emotions? Their sex didn't matter for that dignity, why should their blood relationship? For that matter, why should an older heterosexual couple, of close blood relationship but beyond child bearing age, or a younger related couple at least one of whom is infertile, suffer the same legal indignity? And yet we all recognize that the prohibition against marriage of related people cannot be repealed because we cannot sanction natural-born children of those unions. So the argument that won the day, being based on emotion and changing the very nature of marriage, will inevitably collide with a requirement that we cannot repeal. The only way to maintain the requirement where it is relevant, and to dignify emotions where it is not, is to maintain different requirements for marriage, depending on whether or not a couple's union can produce children. But that means unequal treatment before the law, which is not allowed.
The case against the legality of homosexual marriage is *not* that it violates anyone's faith, or that it violates tradition, or that we find it disgusting. The long litany of arguments routinely offered by American Conservatives failed, because none of them are relevant parameters of American law. The case against legal homosexual marriage is that it
harms society as a whole because it makes marriage law contradictory and thus unsustainable.
I hope this lengthy digression makes clear what I find to be one of the key failures of our movement - we have not made clear that an individual acting freely, in ways that do no harm to the individuals around him, can still harm society as a whole, and that latter harm must be recognized and regulated, if not completely prevented.
So now back to a principle : too little government exists when individuals are allowed to impede the unalienable rights of others, or the "alienable" rights of others beyond the individuals' own property; too much government exists when government impedes the unalienable rights of individuals without due process beyond a reasonable doubt, or when it impedes the rights of individuals who are practicing "alienable" rights without harm to others or to society as a whole.
Just as logic requires premises to have meaning, theory requires facts to be actionable. My thinking requires far more development, around a definition of human life and a definition of harm specifically. But I hope the liberties I've taken with forum space, and with the reading time of forum members, are justified by the suggestion that failing to clarify
harm to society as a whole outside of faith or personal preference is a key failure of American Conservatism.
Many thanks to any who have endured this far.