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But a government by discussion, if it can be borne, at once breaks down the yoke of fixed custom. The idea of the two is inconsistent.  As far as it goes, the mere putting up of a subject to discussion, with the object of being guided by that discussion, is a clear admission that that subject is in no degree settled by established rule, and that men are free to choose in it.  It is an admission too that there is no sacred authority – no transcendent and divinely appointed man whom in that matter the community is bound to obey.  And if a single subject or group of subjects be once admitted to discussion, ere long the habit of discussion comes to be established, the sacred charm of use and wont to be dissolved.  “Democracy,” it has been said in modern times, “is like the grave; it takes, but it does not give.”  The same is true of “discussion.”  Once effectually submit a subject to that ordeal, and you can never withdraw it again; you can never again clothe it with mystery, or fence it by consecration; it remains forever open to free choice, and exposed to profane deliberation.

Walter Bagehot, Physics and Politics, Chapter V, “The Age of Discussion,” 1872.

Interested in the on-going debate over whether the President of the United States should have the authority to use drone missiles to kill Americans on American soil?  Like the idea in some ways, but uncomfortable about giving the power to circumvent due process to the executive?  Well, we don’t have an answer to this conundrum.  But we thought we would share a few thoughts that you might consider while watching the on-going debate.  They come from an article we wrote in October 2, 2007 when the nation was involved in a similar conversation about the use of torture.

Bill Clinton’s opinion on the subject back then was that torture is appropriate when it might be the only way to prevent an imminent terrorist attack on the nation.  This made sense.  But then he added the idea that the torturer should personally suffer the consequences if he or she happens to get caught in this heinous act, or if he or she happens to torture someone who turns out to have been innocent, or if the cause was not as serious as originally feared and thus did not merit the action.   He said he came up with this idea from watching the TV show “24” in which the hero Jack Bower routinely violated every law in the book in pursuit of terrorists and was willing, as a noble patriot, to take the fall if necessary.  We said the following.

Now, it should come as no surprise that Bill would appreciate this “let-the-other-guy-take-the-fall-if-you get-caught” approach.  It’s vintage Clinton. “I didn’t do it, but if I did it was all Monica’s fault.  It was her idea.  I had only a minimal, nay a passive role in the whole thing.”

Nevertheless, one would think that Bill would have learned by now not to put too much stock in what “works” in the movies.  When reading that quote, one can’t help but wonder if he didn’t decide that since the noxious dalliance between the 45-year-old Michael Caine and the barely legal Michelle Johnson in “Blame It On Rio,” “worked” so well that he and Monica could give it a try.

Then, on a serious note, we wrote this:

During the past half century or so American society has largely freed itself from mankind’s most ancient and revered instruments of social order, these being its commonly understood and agreed upon, long-standing and time honored mores, moral standards, traditions, and customs.

To borrow a phrase from Bagehot, the “cake of custom” has been broken.  And the result is that Americans have found this newly-obtained freedom to be unsettling, akin to the confusion that White Fang experienced when he returned briefly to “the wild,” and then found himself yearning for the sense of community and security he had felt among the Indian tribe with which he had lived.

Americans are now “in the wild,” free from what Rousseau called the “iron chains” of conventional morality.  Shame, embarrassment, public approbation, and ostracism are a thing of the past for all but the lowly child molester.  American society no longer has the moral authority to regulate conduct by approbation.  Disgraced former presidents, parents of pregnant 13-year-olds, dope-addled athletes, celebrity tramps, crooked businessmen, senators with a penchant for sex with strangers in public toilets need have no fear of public condemnation.  The concept of taboo, a foundational principle of civilizations since the emergence of man, has disappeared into the dustbin of history, replaced by an endless stream of highly codified laws, rules, regulations, and decrees.

Nothing is wrong anymore, unless it’s illegal, and not all that is illegal is wrong.  A young man wears a tee shirt to school with what would once have been widely regarded as a highly offensive message printed on it.  The Principal tells him to remove it.  He protests, saying that someone else’s tee shirt is equally offensive.  The dispute is adjudicated by the officials at the school, and then challenged in various courts, with the support of the boy’s parents and the ACLU.  The result is a legally sanctioned opinion, subject, of course, to future challenge by future rebels against established authority and by parents who are more interested in having their children learn about their “rights” than about their responsibilities as members of the community . . .

Any American over 60 remembers a different system, one that was based on respect for community standards and enforced by community approbation via a process that was widely respected and recognized across and among class and age lines.  But that was yesterday.  Today, we live in what Walter Bagehot described as the “Age of Discussion.”

Torture, for instance, has, to borrow a term from that cite, been “subject to discussion,” and thus, Bagehot would argue, “open to free choice, and exposed to profane deliberation.”  In the above-noted interview, Bill Clinton recognized this as troublesome.  He described it as a “slippery slope.”  He didn’t know it, of course, but when he proffered his “solution” to the tortured question of torture he was harkening back to a time past, one that he and his fellow liberals helped destroy, when it was customary to grant persons in a position of authority a certain degree of license to act according to an understanding of the standards and norms of the community, with the knowledge that the community would support their decisions if they reflected “good sense” and were made in good conscience.

These were times when torture, if administered, was administered just as Bill says he would have it done today, in unusual cases at the discretion of the individuals in charge.  Only in those days such individuals would not have to fear prosecution unless they clearly stepped beyond what they had reason to believe was considered by the community they served as proper under the circumstances.  Bill leaves no room for this kind of discretion, not, one assumes, because he would disapprove of it, but because he cannot conceive of it.  And fewer and fewer Americans today could.

In this day and age, how could you have a rule that isn’t written down?  How could you trust a school principal, or employer, or law enforcement officer, or soldier, or judge, for that matter, to enforce something as vague as “community standards,” to exercise discretion, to be governed solely by “common sense.”  Wouldn’t that be subject to abuse?  Of course, the answer to this question is, yes.  It would be subject to abuse.  And it was subject to abuse, as Rousseau noted.  But the iron chains of the old system that Rousseau hated and feared, which were made up of community standards, religious beliefs, time-honored customs and traditions, are garlands of flowers when compared to the legal and regulatory shackles that have become the centerpiece of the current one . . .

The great social scientist Paul Nisbit was thusly concerned, and eloquently described the nature of this concern as follows in his classic 1975 study on American society called The Restoration of Authority. 

Pluralist society is free society exactly in proportion to its ability to protect as large a domain as possible that is governed by the informal, spontaneous, custom-derived, and tradition-sanctioned habits of the mind rather than by the dictates, however rationalized, of government and judiciary.  Law is vital – formal, statute law – but when every relationship in society becomes a potentially legal relationship, expressed in adversary fashion, the very juices of the social bond dry up, the social impulse atrophies.  The genius of the English common law lies not only in the social and communal roots of this law, as these are to be seen in the history of England during the Middle Ages, but also in its tacit concern, repeatedly expressed in judicial decision, that as little as possible be transferred from the nonlegal, nonpolitical lives of human beings living in a social order to the necessarily legal and political lives of the same human beings conceived as subjects of the sovereign. Nothing, it would seem, so quickly renders a population easy prey for the Watergate mentality of government as the dissolution of those customs and traditions which are the very stuff of morality and, hence, of resistance to oppression and corruption.

We propose no remedy for the dissolution in America of the importance of custom and tradition.  Like it or not, as Bagehot said, there is no return from the “Age of Discussion.”  But sometimes it helps to understand how all of this came about when one becomes uneasy and concerned about the future of a nation that is increasingly governed by rules and regulations and laws and lawyers.