Custom and Tradition Versus Reason in Modern Secular and Religious Moral Reasoning and in Modern Constitutional Law

摘要

Custom and Tradition versus Reason in Modern Secular and Religious Moral Reasoning and in Modern Constitutional Law: Contemporary debates over values, the so-called “Culture Wars,” are best understood not as a debate between religious and secular ideologies, but rather a debate between traditional ideologies, whether religious or secular, which reflect customary or traditional norms, versus progressive ideology, whether religious or secular, which reflect rational deliberation about moral reasoning. Customary or traditional attitudes, both secular and religious, have supported, among other things, slavery, segregation and anti-miscegenation laws, denial of equal rights for women, anti-Semitism, rejection of the cosmology of Galileo, rejection of Darwinian evolution, limitations on access to birth control, limitations on stem-cell research, limitations on choice regarding abortion pre-viability, and denial of equal rights to gays and lesbians. In contrast, the perspective of adult reason commits one to the logical and rational elaboration of giving each individual what Ronald Dworkin has called “equal concern and respect,” reflected in religious traditions by rational elaboration of the biblical imperative of “love of neighbor as oneself,” or in classic Enlightenment terms by Adam Smith and the Scottish Enlightenment’s concept of behaving according to the logic of an “impartial spectator.” A major difference among Supreme Court Justices is the extent to which broad terms in the Constitution, like liberty or equality, should be read consistent with customary and traditional beliefs, a view supported by Justices Scalia and Thomas, or should be read in light of the demands of reason, the position of Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer. The article addresses each of these points in greater depth.