Changing and Unchanging Face of U.S. Civil Society

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No public defense of past greatness could be allowed to live in the present. Public morality and public policy would come to be understood in terms of the formerly oppressed. In this light, it is not surprising that Trump is seen not only as the enemy of political correctness, but as the enemy of those whose intellectual lives have been shaped by positivism and historicism. Trump is not an academic or an intellectual. He seems to understand politics in an old-fashioned way.

He appeals to the people as citizens and Americans, on the assumption that the people establish the legitimacy of parties and elections. He rejects the authority of the professionals and insists that he is interested in unifying the country. He claims to do so by appealing to a common good.

Of course, it is not easy to appeal to a common good when so much of the country has come to understand itself in terms of its diversity. In such a time, an appeal to American citizenship is itself almost a revolutionary act, because it requires making a distinction between citizens and all others. Along the same lines, Trump has appealed to the rule of law and has attacked bureaucratic rule as the rule of privilege and patronage on behalf of social, economic, foreign policy, and political elites.

This appeal is made difficult by the fact that the administrative state has fragmented, isolated, and infantilized the people by undermining or destroying the institutions of civil society. Since local politics and administration came to be centralized within the administrative state, elections have provided the people their only possibility of participation in public life.

Politics at the state and local level, along with the private institutions of civil society, took on a new face after administration was centralized. In turn, the federal government and bureaucratic apparatus became dependent upon the intellectual elites to provide expertise. But what to do with the people who participate in politics only as citizens? In terms of elections, the old partisans of both parties—the party pros who had devoted their life to trying to understand politics in terms of mobilizing the people—were no longer needed once partisan appeals could be marketed like any other commodity.

Both political parties have benefitted from the kind of predictability made possible by the incorporation of scientific professionalism in the organizing and shaping of campaigns and elections. In addition, both parties have participated in recognizing the legitimacy of the cultural narrative established by post-modern theory—and enforced by political correctness—as the ground of understanding civil society, public policy, law, and bureaucracy itself. Before the end of the 20th century, contemporary politics had created an equilibrium agreed on by both parties and underwritten by the intellectual authority of positivism and historicism.

This equilibrium has functioned as a new kind of iron law of politics: there are Red States and there are Blue States and there are a handful of Purple or battleground States. Political conflict could be contained by focusing on the latter. Elections were understood in terms of division rather than unification, and it became almost impossible for any candidate to appeal to the electorate on behalf of a common good.

That is not surprising, because positivism and historicism had rejected any understanding of the meaning of a common good. Modern American politics had become intelligible only from the perspective of positivist social science and post-modern historicism or progressivism, both of which begin and end with interest-group diversity and individual autonomy. Trump appears to have understood that the political parties no longer establish a meaningful link between the people and the government.


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Party patronage has been replaced by bureaucratic patronage, and a professional elite has established itself as the vital center between the people and the government. The authority of that elite cannot be understood simply in terms of social, economic, or even political power. What unites the vital center—what establishes its prominence and legitimizes its public authority—is knowledge.

DEMOCRACY IN AMERICA

They often lack political consciousness of themselves as a class. Many of them do not even think of themselves as political. Their interest and loyalty is to what it is they profess to study and what they think they know, and what establishes their intellectual and political authority is their production of what is seen as useful knowledge in the administrative state. Indeed, it could be said that without the policy sciences, the administrative state would be almost impossible to operate.

Trump has apparently refused to acknowledge the authority of this policymaking establishment and in doing so has perplexed nearly all of the public intellectuals, both liberal and conservative. In refusing to allow the established vital center to mediate the political debate, he has gone directly to the people. And so doing, he has made it nearly impossible for the vital center to condone or even attempt to understand—let alone praise—his candidacy.

In the attempt to evaluate Trump, liberals have judged him from the perspective of post-modern culture, labeling him a reactionary racist, a nationalist, and a xenophobe. Conservatives have not objected to this post-modern characterization of Trump; they have simply tried to add a conservative twist by seeking to revive the old language of character, virtues and vices—as though this language still has a public or political meaning!

Unable to politicize a language that no longer resonates even with the libertarian or economic conservatives, their moral judgments could only be interpreted in terms of self-interest—a concept still relevant in contemporary discourse.

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This was not always the case in American politics. A political discourse once existed that understood itself in terms of principles of public right, and the stewards of public office were once judged by non-partisan standards that presupposed virtues such as honesty, integrity, character, and honor.

Five Adaptation Stages and Progress

It was an agreement on the need for such virtues that made it possible to entrust those offices to political partisans and to distinguish theoretical and practical reason or prudence. While it was possible to agree on abstract principles, it was also possible to disagree on the practical way those principles were to be accommodated with respect to contemporary circumstances. Policymaking was not understood in terms of expertise, nor had technical knowledge replaced the prudential judgement of the politician. Moreover, a public language still existed that made it possible to agree on what kind of public and private behavior was praiseworthy or blameworthy.

But that old language was dependent upon a reasonable and objective understanding of virtue and vice. Such language eludes us in an age when subjective values have replaced public and private virtue, and when principles are merely subjective policy preferences that are defined and defended simply by being non-negotiable. Perhaps he did so because there had been no honest evaluation of Washington that originated in Washington: no policy ever really fails, private corruption never arises to the level of public corruption let alone is punished , no officeholder of significance has been held personally responsible for their behavior since Watergate.

Ironically, it has taken a reality television star—one who knows the difference between the real and the imagined—to make reality a political issue with respect to Washington.

Indeed, in recent years, Washington has presented itself as a kind of reality show. It is difficult to distinguish what is real from the way it is spun. Benghazi was just one example of the unwillingness of the Washington establishment to denounce deception in a political matter. Trump was willing to denounce the deception by passing personal judgment on those policies, personalities, and issues, and he was willing to judge them as personally accountable.

Moreover, Trump is understood personally and not politically, because he has never held political office. He is primarily vulnerable to criticism on the ground of his personal behavior, one leading aspect of which is a lack of respect for office seekers and office holders and their policies. As a result, it has become difficult to judge Trump politically or in terms of the past. In short, Trump cannot be properly evaluated in political terms. It is not surprising, therefore, that few are willing or able to praise Trump in an unqualified manner.

It has become far easier for modern man to accept change as something normal, almost natural. What has become difficult to understand, let alone preserve, are things that are unchanging or eternal. History, understood in terms of the idea of progress in politics, economics, science, and technology, has made change, or the new, seem almost inevitable. As a result, the desire for the newest has become almost irresistible. When Lincoln was faced with the dilemma of understanding what must be preserved and what can be changed, he had to come to grips with the meaning of conservatism.

He did so at a time when not only the understanding of the unchangeable—that is to say, self-evident truth—but also its political meaning had been denied.


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And Lincoln, who was charged by his enemies with being a revolutionary, did not defend himself as a conservative. What is conservatism? Is it not adherence to the old and tried, against the new and untried? We stick to, contend for, the identical old policy on the point in controversy which was adopted by our fathers who framed the Government under which we live; while you with one accord reject, and scout, and spit upon that old policy, and insist upon substituting something new.

In contemporary politics, both liberals and conservatives are necessarily open to the new. But in many of the most important ways, they have rejected the old policy of the fathers. True, conservatives have not yet seen fit to denounce the fathers. But how much of the legacy of the fathers do they still find defensible? Lincoln was aware that the only proper defense of the tried and the true—of tradition—was a defense of the unchanging principles of political right understood in terms of an unchanging human nature.

It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us. So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation. How can we escape this predicament?

The good news is that we have mostly escaped it, albeit unselfconsciously. Our constitutional system, without our fully realizing it, has tapped into an ancient source of law, one that antedates the Constitution itself by several centuries. That ancient kind of law is the common law.

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The common law is a system built not on an authoritative, foundational, quasi-sacred text like the Constitution. Rather, the common law is built out of precedents and traditions that accumulate over time. Those precedents allow room for adaptation and change, but only within certain limits and only in ways that are rooted in the past. Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself.

A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges or anyone else can simply manipulate to fit their own ideas. The bad news is that, perhaps because we do not realize what a good job we have done in solving the problem of how to have a living Constitution, inadequate and wrongheaded theories about the Constitution persist.

One theory in particular-what is usually called "originalism"-is an especially hardy perennial. Originalism is the antithesis of the idea that we have a living Constitution. It is the view that constitutional provisions mean what the people who adopted them-in the s or s or whenever-understood them to mean. There are different forms of originalism, but this characterization roughly captures all of them.

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In the hands of its most aggressive proponents,originalism simply denies that there is any dilemma about the living Constitution. The Constitution requires today what it required when it was adopted, and there is no need for the Constitution to adapt or change, other than by means of formal amendments. There is something undeniably natural about originalism. If we're trying to figure out what a document means, what better place to start than with what the authors understood it to mean?

Also, as a matter of rhetoric, everyone is an originalist sometimes: when we think something is unconstitutional-say, widespread electronic surveillance of American citizens-it is almost a reflex to say something to the effect that "the Founding Fathers" would not have tolerated it.


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And there are times, although few of them in my view, when originalism is the right way to approach a constitutional issue. But when it comes to difficult, controversial constitutional issues, originalism is a totally inadequate approach. It is worse than inadequate: it hides the ball by concealing the real basis of the decision.

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