"Worn Arguments" and the law

“Worn arguments and old attitudes”

President Barack Obama recently made references to “worn arguments and old attitudes”. As a politician, he often uses pleasant sounding catch phrases and idioms that are easy on the ears. His comments often make references and allusions to various non defined source materials. In his speeches are allusions to the Bible, the Koran and other noted writings. This particular phrase caught my attention and led me to consider, “What are the worn arguments and old attitudes?”

In October 2009, the President again referred to "worn arguments", although this time his claimed to be on a campaign against those who hold such attitudes. In this case, he was referring to those individuals who hold fast to the concept of 'traditional marriage'. He sees these values as stumbling blocks to progress. So according to the chief executive officer, traditional marriage is a hindrance.

Contrast this with founding father, US Supreme Court Justice James Wilson, who also signatory of the Declaration of Independence and the Constitution.

"Whether we consult the soundest deductions of reason, or resort to the best information conveyed to us by history, or listen to the undoubted intelligence communicated by holy writ, we shall find, that to the institution of marriage the true origin of society must be traced" So in Mr. Wilson's argument, the origin of society is based on this institution.

Given that Obama is opposed to traditional marriage it seems that he is attempting to tear down the very origin of society.

At least James Wilson goes on with his argument, "The most ancient traditions of every country ascribe to its first legislators and founders, the regulations concerning the union of the sexes. The honor of instituting marriage among the Chinese, is assigned to their first sovereign, Fo-hi. In order to render this great foundation of society respectable, he adjusted, as we are told, the ceremonies, with the contracts of marriage accompanied" Wilson goes on to cite examples from Egypt, Athens, Rome, Hebrew, Germany, and the Incas. Wilson's examples add credence to the many civilizations that valued marriage between a man and a woman.

President Obama relies on rhetoric alone, without historic precedents or examples to make his case that holding to such values is a "worn argument". Arguing such a position suggest that his position is either superior to those of previous civilizations or that history and precedents are not on his side.

To confuse matters even further, a few days later, on the 4^th of July, made reference to the "unyielding spirit is what defines us as Americans". How is it that Americans have ‘worn arguments and old attitudes’ yet the ‘unyielding spirit’ is what defines us as Americans. Does he want us to change or is he praising the resistance to change? Has he changed his message, or is this an example of hypnotic techniques where the hypnotist gives contradictory messages in order to confuse and thereby put the subject in a mental bind? If the technique is viewed as a political message, he is wavering in his policies. If this technique is viewed from a psychological perspective, he is using hypnotic procedures an a large scale to manipulate the public.

Any head of state is the chief executive power of a nation. As such, their office is responsible for the execution of power and law in that nation. They do not officially have the power to make laws, although they do choose which laws to enforce and how the enforcement will occur. Since most nations have a multitude of laws, deciding which ones to enforce and how to enforce them can be an overwhelming task. If the deciding guideline is that of ‘worn arguments and old attitudes’ is used as a benchmark, then only the recent laws and policies will be enforced. Although this sounds easy, the body of law represents a collection of rulings and arguments that have evolved over time.

The very nature of laws and legal systems consists of legislation and court rulings that have been made. As the courts make more rulings, the laws are better understood as to how they are applied and what they mean. It is not unusual for a legislator to not recognize a law they wrote after several years of its application in the courts and agencies. Since the body of laws builds on the previous legislation, rulings and opinions of the courts, the removal of worn arguments and old attitudes will weaken the whole of the body of law, since its foundations have been altered.

Although laws can be changed, when they are changed in disregard of the precedents, there is a danger that such laws or the legal system will be overturned. Going against the body of law is akin to swimming upstream. Laws that govern nations have evolved over time. They are changed as the people changed. History shows us that when governments attempt to change the people simply by changing law, there are problems. The 18^th amendment in the United States is a prime example of what occurs when government tried to change the people with law in disregard of the body of law. It was a case of the government trying to change the moral behavior of the people. Another example is the Alien and sedition acts and the uproar it produced.

In terms of legal arguments, the question arises which ones are considered ‘worn’ and in need of replacement? Given that many foundational aspects of the body of law go back to civil law under Justinian, the Napoleonic Code, the Bible, English common law and other foundational legal writings, which ones are those that should be replaced? The replacement of a foundational document will alter the whole nature of the rulings and body of law generated since it was written.

Even in the event of limiting the scope of material under consideration to American foundational documents, which does one dismiss? If one dismisses the Articles of Confederation, then the idea of the perpetual Constitution goes away. If the Declaration of Independence is done away with, then the whole idea of representational government goes with it. If the Constitution is done away with, the whole nature of the government is changed and the government looses its authority. The Constitution includes the Bill of Rights mainly because there were people who demanded they be included. Although those who authored the Constitution claimed that the freedoms laid out in the Bill of Rights is what they meant, there were hold outs like Patrick Henry that insisted that such freedoms be spelled out. He felt that it did not matter what the people meant if they did not spell it out.

If Supreme Court rulings are tampered with, how does one decide which ones to ignore? Since the rulings often build one on top of another with the issue of precedents used, the removal or ignoring of one will thereby weaken all the subsequent rulings. Few realize that the power of government rests upon the body of law and peoples respect for the rule of law. Even the older rulings often provide insights and guidelines in how to apply the law in various situations. When a legal case is argued before the Supreme Court, it is not just a matter of the parties involved, but the law itself is on trial as well. Opinions are arrived at by considering the precedents and the body of law itself. When the body of law is considered unstable, the society is unstable. Worn arguments may be old, yet they provide the social and legal stability for a society to continue.