So in the age of flour power the state can compel you to make certain kinds of cakes but relieve you of the obligation to make certain other kinds of cakes. In our brave new gÃ¢teaupia, it will all eventually wind up at the Supreme Court, at which America's Masterchef Anthony Kennedy will decide precisely which half-baked state-mandated menu items on the cake stand of American liberty are constitutional and which are not.
And, if a few Indiana pizzerias have to be put out of business along the way, well, as the Commies used to say, you can't make a gay wedding cake without breaking a few eggs.
Do you ever get the queasy feeling that America's cake is past its sell-by date? Increasingly, in the most mundane matters of daily life, everything is either legal or illegal. That is not how a free society operates, as a long forgotten English jurist well understood. I wrote about him a couple of years ago in my "Happy Warrior" column, and his words on the "middle land" (now almost entirely swallowed up in our Big Government utopia) are more pertinent than ever:
John Moulton was a distinguished judge, a man of science, and a chap who held the splendid title during the Great War of Britain's "director-general of explosive supplies," a job he did brilliantly. Lord Moulton divided society into three sectors, of which he considered the most important to be the "middle land" between law and absolute freedom â€” the domain of manners, in which the individual has to be "trusted to obey self-imposed law." "To my mind," wrote Moulton, "the real greatness of a nation, its true civilization, is measured by the extent of this land." By that measure, our greatness is shriveling fast: The land of self-regulation has been encroached on remorselessly, to the point where we increasingly accept that everything is either legal or illegal, and therefore to render any judgment of our own upon the merits of this or that would be presumptuous.
A small example: The other day, I visited a Shaw's supermarket in New Hampshire. On the front door was a sign: "No bare feet â€” for Health & Safety reasons." Really? Yes, it's true that the bare foot is particularly prone to fungus and bacteria, and one wouldn't want it promenading in large numbers around the meat department â€” in the same sense that it would be unhygienic to take a leak in the produce department. But the reason a civilized person neither urinates nor pads barefoot amid the fruit and veg is not that it's a health-code violation but that it's (in the Moulton sense) ill-mannered. Shaw's can no longer rely on its clients to know this (and to "obey self-imposed law"), and it apparently feels it cannot prohibit such behavior merely as an affront to societal norms, so it can disapprove of barefoot shopping only as an act of regulatory non-compliance.
Speaking of "societal norms," whatever happened to those? We used to accept that different places had broadly observed customs. "When in Rome, do as the Romans do." But in Rome these days they do all kinds of things: There are still a few more or less observant Catholics, but there's also a lively crowd of gay hedonists, and a big bunch of disapproving Muslims. A norm to one is an abomination to the other, which is one reason the state is increasingly comfortable in micro-mediating social behavior.
A land of hyper-regulation is not the same as a land of law. The European Court of Human Rights recently ruled on two cases of British women whose employers forbade them to wear crucifixes â€” one an NHS nurse, the other a British Airways baggage handler. The court ruled against the nurse but in favor of the baggage handler. Why? What particular legal principle illuminated both cases? Don't ask the jurists. Re the BA employee, they declared that "the court has reached the conclusion in the present case that a fair balance was not struck." How is BA or any other employer to know what constitutes a "fair balance"? They can't â€” or not reliably. Only the state and the courts can definitively establish that, by colonizing Moulton's "middle land" unto policing dress codes, religious expression, social habits, and even casual conversational exchanges.
Or, as we now know, policing the kinds of cakes one is compelled to bake.
As that Shaw's sign suggests, a kind of civic paralysis sets in: It is a small step from a citizenry that no longer knows how it should act to a citizenry that no longer knows whether or if it can act, and from there to a citizenry that can no longer act. When everything is the domain of law, everyone is potentially a criminal. Over the decades, National Review has been famously antipathetic to Ayn Rand, but she called this one a long time ago. In Atlas Shrugged, one of her characters muses: "One declares so many things to be a crime that it becomes impossible for men to live without breaking laws."
Which is about where we are.
from Happy Warrior, April 5, 2015
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