I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Fund blog. It is the last in this series, and I've enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson's challenging remarks:
It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.
As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.
Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.
I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).
I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”
Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.
In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.
The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.
Alan Noble, a professor at Oklahoma Baptist University, responds to the welcome dropping of the onerous proposed regulations on religious colleges in California. He notes that the issue will surely return, perhaps as soon as next year. The way forward, he argues, is to preserve the freedom of religious (among other) colleges to maintain their thick identity through policies on student conduct, while making sure that LGBT students have notice of policies that will affect them and also have the ability to exit the college and attend elsewhere without severe cost. Along the way he explains in concrete terms why the colleges' freedom matters and should be protected, why LGBT students may face difficulties that call for a sympathetic response, and why the Bob Jones model of handling the problem--strip the colleges of tax exemption--while perhaps appropriate for the situation of race discrimination, is inappropriate for this situation. A small sample of the arguments:
If [other] students were prohibited from using their government aid at these religious schools, [as a sanction for the schools' policies,] the consequences would be severe for these communities. But the policy would also represent a weakening of the U.S.’s commitment to support dissenting views. Religious schools offer public benefit with the education they provide, but also in their cultivation of thick beliefs that may differ from public orthodoxy....
No response to these scenarios can erase all the conflicts and heartbreak between students, families, and academic communities, but through a model of communication, mutual respect, and dignity, schools can create a healthier environment for everyone....
... By increasing transparency about Title IX exemptions and codes of conduct, easing the transfer process for students who cannot abide by the codes of conduct, and taking a strict stance on bullying and abuse, religious schools can retain their distinctive mission while protecting students.
One need not agree with everything in this piece, and the details about disclosure/notice and exit can matter a lot. But overall, IMO, the piece is a good example of how to argue for the freedom of colleges and other religious nonprofits, in the face of current challenges, in a way that is most likely to convince those in the middle who are open to persuasion.
