Jean Bethke Elshtain
The Know-It-All State
For better or for worse, "God talk," at least as much as "rights talk," has been, and remains, the way Americans speak. Our politics is indecipherable if severed from the panoply and interplay of America's religions. Much of our political ferment de rived, and derives, from intense religious commitments. The majority of Americans has long held that religious liberty—free exercise—is much of what distinguishes America—or did historic ally—from so many other polities. Given the complex intermingling of religious and political imperatives in our history, it is unsurprising that such a huge chunk of American juridical life has been devoted to sorting out the inaptly named church-state debate. In a less churched society this would be a far less salient concern.
Were one to examine American history, and views on the power and role of religion, through a lens that began only with Jefferson and continued down to present separationists who approach religion as a kind of polluting force in political life, one would miss the boat altogether. Jefferson's blithe dictum that it mattered not to him whether his neighbor believed in no God or 20 gods—it neither picked his pocket nor broke his legs—suggests an agnosticism about religious belief not shared by the vast majority. It is, then, not at all surprising that when Alexis de Tocqueville toured America during the Jacksonian era, he noted, in his subsequent masterwork, Democracy in America, that settled ideas about God and human nature were indispensable to the conduct of daily life and that, in general, when a people's religion is destroyed, it enervates and prepares them, not for liberation but for bondage. (Here he had the horrors of the French Revolutionary Terror in mind.)
In America, by contrast, the social and political implications of the belief that all were equal in the eyes of God were being played out on a grand scale. Religion contributed powerfully to the maintenance of a democratic republic by directing the mores and by drawing people into community and away from narrow materialism. Religion helped to "purify, control, and restrain that excessive and exclusive taste for well-being human beings acquire in an age of equality." The separation of church and state in America seemed a catalyst for, rather than a hindrance to, an astonishing flourishing of religion. By diminishing the official power of religion, the Americans had enhanced its social strength. They seemed to recognize that religion (by which, of course, Tocqueville meant Christianity, including Catholicism, regarded by so many others as an anti-democratic element in American life) feeds hope and is attached to a constitutive principle of human nature. Amidst the flux and tumult of American politics, religion shaped and mediated the passions. Tocqueville didn't mince words. He insisted that the ideas of Christianity and liberty were so intermingled that if one were to try to sever religion from democracy, one would destroy that democracy. What about the views of the eighteenth-century philosophes, then, who held that spreading enlightenment would inevitably bring about a weakening of religion? Tocqueville's riposte is pithy: "It is tiresome that the facts do not fit their theory at all."
Something of the Tocquevillian weariness with theories that run directly counter to lived experience is evident in Stephen Carter's The Dissent of the Governed. This crisply argued volume consists of Carter's Massey Lectures in the History of American Civilization delivered at Harvard University, May, l995. The book is, as Carter's subtitle suggests, a meditation on "the relationship between loyalty and disobedience on the one hand and, on the other, between the recognition of the sovereign's au thority and realization that the sovereign is not always right. In America, this conflict is eternal." He writes, he tells us, as a "legal theorist, as a citizen of a democracy, and as a Christian." Further, he believes "deeply, in dissent, not simply as a right, but often as a responsibility."
Having thrown down the gauntlet in this way, Carter begins with a quote from Aquinas: "The force of a law depends on the extent of its justice." He is worried that we may be losing the normative and moral dimensions of law or, perhaps better put, he believes that those who refuse to disconnect law from justice and deep concerns with fairness and human flourishing and good and evil are having a harder and harder time making their views heard. Why is that? Because, he claims and sets out to demonstrate, we have made "dissent seem unAmerican." Carter isn't so much concerned with generic dissent but with dissent that is faith-based, as this form of dissent has taken the most hits in our recent past. The big question democratic citizens must always concern themselves with is how "to control the apparatus of the sovereign." (It wasn't at all clear to me what Carter meant by "sovereign" at this point—that unfolds slowly over the course of the three lectures.)
Carter begins by exploring the role of religious communities in public life in a section he calls "Allegiance." He points out what is so often forgotten, namely, that our great Declaration of Independence is itself "an act of disallegiance, the breaking of the tie of presumptive obligation that we describe as loyalty." Loyalty, in the first instance, emerged as an act of dissent or, better said, as the "failure of dissent" in the sense that the petitions of aggrieved colonials had either been ignored or responded to in a wholly inadequate way by the British crown. So, given the breakdown of the petition process Carter labels "dissent," colonials moved into the extreme mode of revolution. At present (working here by analogy, although it is unclear just how far Carter wants to push it), large numbers of our citizens feel that "their petitions to their government go unanswered, and, as a result, have lost a degree of faith in that government. Does that mean that they are also losing their allegiance?" A pro vocative query, to say the least, especially if he sees revolution in the backdrop. But this is more hinted at than developed in Carter's argument.
Still, Carter doesn't mince words in exposing the attitude of contempt and belittling he finds pervasive among "secular liberals" toward citizens for "whom faith is more important than particular political ends." The political commitments of these citizens, if fully displayed, are complex and frequently do not fit any of our prefabricated options. Thus, for example, the vast majority of Roman Catholics, together with members of the African American churches, combine social traditionalism with a kind of populist egalitarianism on economic questions. Others, of course, are conservative or more liberal across the board. But Carter's point is that such views, if religiously grounded and articulated, are nigh unintelligible to mainstream politics, "with its arrogant rejection of religious argument and traditional religious values." This, he claims, "has alienated tens of millions of voters, and by no means are all of them hard-line conservatives."
One wonders if Carter would change his tune somewhat in light of the fact that both of the likely nominees of their respective parties for the next presidential election, George W. Bush and Al Gore, have come out re soundingly for charitable-choice provisions as well as forms of public assistance for faith-based social-provision and civil-society efforts. Probably not, I suspect, because his concerns cut deeper than current proposed public-policy initiatives. Specifically, he ranks the "moral upbringing of the young" as an overriding issue—one that, if anything, Carter would find even more exigent in light of the Columbine High School massacre. Although himself a skeptic in this matter, Carter notes that overwhelming popular support for organized classroom prayer is part and parcel of a deep and abiding commitment to the moral formation of the young, given added urgency by the conviction that the wider, secular society is either indifferent to this concern or finds religious commitment and education irrelevant to it. He writes of "ordinary, hard-working, law-abiding families, patriotic Americans whose political allegiance to the nation runs deep and whose moral roots are in their religious traditions, to which their allegiance runs just as deep; families who are concerned, frightened, and, more and more, profoundly alienated from politics and from a government that they think does not care about them."
Coming from a scholar not noted for hyperbole and excess in his rhetorical style, these are tough words, and Carter defends his mordant assessment by insisting that nobody questions that we do owe allegiance to the sovereign. (That word again!) There are many alternative explanations for why this is the case, but that it is the case is, for Carter, a given, a beginning point. But too often, increasingly so, he believes, this allegiance is construed as agreement, and deep disputation, as a result, becomes un-American. To be sure, no polity can exist in a constant uproar, or what Carter calls a pervasive "state of dissensus." But most dissent doesn't cut to the civic quick. It follows that the political community must be able to distinguish "between disagreement with the particular policies of the community and disloyalty to the community itself." This is pretty basic "American Gov 101," and Carter knows it. But he fears we may be forgetting this straightforward truth.
Ambitious illiberal constitutionalism of the sort I have called "liberal monism" is, for Carter, part of the problem, again contrary to received notions about how constitutionalism alone can both hold us together and save us from deep errors or injustices. For this latter stance presupposes, as a democratic goal and perhaps even a democratic prerequisite, a "single, nation-wide community with shared values and shared, enforceable understandings of how local communities of all descriptions should be organized." The aim is One Big Community.
This is deeply problematic—in fact I would argue that it is even more troubling than Carter allows, and for this reason: liberal monism insists that all institutions within a plural, democratic order must conform to one standard of reason, one principle of authority, one unitary norm of "governance" (one person, one vote, basically), thereby forgetting that one cannot map the procedures of democratic, majoritarian procedure onto all institutions, whatever their nature, size, or purpose. To do so would, ironically, depluralize American life in the name of democraticizing it. And democracy is sustained by plural institutions; it is not an alternative to them.
Carter works on a slightly different angle from mine but with a similar set of concerns. He speaks of communities of meaning and notes that the existence of such plural communities is a complex and potentially volatile thing. Why? Because, given these multiple forms of membership and what may, at times, be competing rather than complementary systems of meaning, the religious citizen may well be a subversive in situ rather frequently. For the meanings that mean something to such citizens are bound, at points, to be "radically distinct from those that are as signed by the political sovereign," Carter notes, citing theologian (and my good colleague) David Tracy. For Carter, this is altogether a good thing, precisely the kind of argument in favor of plural allegiances that would send Jean-Jacques Rousseau into apoplexy, given Rousseau's adamant insistence that the only good religion is a civil religion and that, moreover, Christianity is a terrible civil religion with Catholicism the worst of all. Why? Precisely for the reasons Carter extols religious faith, namely, that faith affords people an alternative to the sovereign as a source of meaning, purpose, and loyalty.
This was a lesson not lost on our Framers in general, or they would never have guaranteed "free expression" together with disestablishment. But, as it has evolved over time, "the project of liberal constitutionalism often places significant obstacles in the path of a religious community's ability to project its truths or even to nurture its own existence—and the spiritual life of its adherents—over time." Thus, even that most elemental of all freedoms—the freedom of the family to make decisions on be half of its children—comes under pressure given the ways in which we have set up state (public) education.
This is an overriding preoccupation because, from its inception, "public education in America has been understood, first and foremost, as training for citizenship. The nation's schools were to be the repository of the nation's values." Hence, Carter suggests, an element of coercion entered into the public-school philosophy. Not only were all children, ideally, to be schooled in state schools, but a variety of regulations emerged mandating years of attendance and, slowly but surely, the bleaching out of religious remnants from the education children received. One community's values—the hypothesized values of the One Big Community—took precedence in nearly all cases of conflict or tension and were to be "externally imposed," no matter that such imposition might threaten the survival of a particular community of tradition and meaning.
What does Carter have in mind here? He references the Kiryas Joel case of 1994 where the Supreme Court articulated the "strange notion" that any special accommodation afforded to the Satmar Hasidim in serving the needs of disabled students from their own community was perforce unconstitutional, a violation of the bright line separating church from state. (At stake was the constitutionality of a special legislative grant to the Satmar to form a school district and to in corporate their students with disabilities into it, this in light of horrible experiences these children had suffered within the public school.) For Carter, this decision was but one in a long line of injustices, even outrages, committed against particular communities of belief. The Court, in effect, was putting blocks in the way of the Satmar's ability to transmit their tradition over time, by contrast to the Court's holding in Wisconsin v. Yoder in the early 1970s that granted the Amish the right to disobey mandated school attendance laws after the eighth grade.
Taking religious freedom seriously means "nurturing the ability of the religious communities to survive, which means, at a minimum, not treating religious entities worse than non-religious entities. Thus, if the state makes aid of any sort available to any private school, it cannot refuse to make that aid available to those schools that happen to be religious." This quite sensible dictum has often not prevailed; indeed, even egregiously bigoted views toward particular religious communities—Carter notes Justice William Douglas's unabashed citing of hysterical anti-Catholic tracts in an opinion in 1971!—have made their way into court arguments and holdings. (The case Carter has in mind here is Lemon v. Kurtzman).
Now, within the framework of liberal monistic argument, families who give their children a faith-based education are frequently construed as doing their children a disservice by somehow not preparing them for an idealized world of diversity, deliberation, speeded up globalization, and all the rest. So, ironically, these critics seek to undermine plurality of belief in the here and now in favor of promoting an entirely hypothetical notion of appreciation of diversity in the abstract. (Carter doesn't point out, but he might have, that public schools are often more segregated by race, and certainly by social status, than many parochial schools.)
In lecture 2, on "Disobedience," Carter examines what actually happens when dissent spills over into conduct, especially if that conduct is illegal. He begins by restating his brief against the totalizing thrust of contemporary liberal constitutionalism, noting that this monistic drive is so powerful that a particular community within the polity that understands itself by its own lights, insofar as these are "different from those of the larger political community within which it dwells," is already "engaging in an act of disobedience"—not rebellion, but disobedience. And disobedience, for Carter, is by no means the same as disallegiance. His worry is that, to the extent that principled disobedience and petitioning to "the sovereign" goes unanswered, citizens are pitched over into that disallegiance he now finds among us, a kind of resentful withdrawal from things public and civic.
In words oozing irony, Carter ex presses his "genuine curiosity" at how a "dominant liberal ethos" that seemed so eager to "deny the belief/action distinction in the sixties and seventies, when the civilly disobedient tended to be protesting segregation or the Vietnam War, came to celebrate it in the eighties and nineties when the civilly disobedient tended to be protesting abortion." He elaborates on this elusively couched claim. It is vital, just common sense, really, that those witnessing to what they consider an in justice be seen and heard. They are calling attention to a problem that they believe implicates the common good, not just their own particular interests.
But what happens when, in effect, we say, "You can protest, but you can be neither heard nor seen doing so." Thus, in moving pro-life protestors "across the street from the entrance to a clinic, the witness itself becomes less effective." Witnesses are trying to change minds. But minds will go unchanged unless some alternative is heard. That, at least, was the argument of anti-Vietnam and anti-segregation protestors just as it is the argument of pro-life protestors. In the latter case, the Court has seen fit to curb First Amendment activity, using a variety of dubious arguments, including anti-racketeering statutes to guarantee that anti-abortion protestors cannot shout too loudly outside clinics or meetings.
For Carter, this violates at base the whole notion of civil disobedience, which "rests on the moral obligation to resist injustice; even laws, if they are unjust, must be resisted." One is obliged, therefore, to disrupt business as usual—whether segregated cafeterias or abortion clinics. (I am not going to explore whether these are precisely analogous situations; certainly the dissidents in each instance argue, correctly to my view, that abiding moral principles involving the wider community—who is inside and who outside the boundary of moral concern—are at stake.) The "secular liberal" is behaving hypocritically, Carter concludes, in saying, in effect, that if pro-lifers want the abortion 'right' changed, they should make the case politically as such secularists have re moved that issue from political adjudication, having declared abortion a constitutional right.
So Carter's reverberating point is that "by protecting advocacy only until it moves people to act, the courts have drawn not simply a speech/action distinction but an individual/group distinction. The lone critic is no danger, because he can do nothing alone. But the group, because it is better able to act, becomes a threat. That is why those in power have always sought legal means to thwart organizations that are preaching dissent, while leaving ineffective individuals alone." The aim, he insists, is clear and insidious to democracy over the long run: to wipe out those institutions through which citizens organize their lives.
This violates a constitutive principle of democratic civil society, namely, that citizens can organize and sustain a variety of institutions and relationships to which they feel and owe "a degree of allegiance" and he names religion, family, friendship, neighborhood, profession as forms of such allegiance. That thing "the sovereign" (by which, it now gets clearer, Carter means the combined force and apparatuses of government) may hold the monopoly of violent force, but it cannot presume a monopoly on wisdom; it hasn't the epistemological competence to see all, hear all, know all. But sometimes this sovereign acts like a know-it-all, and it does so in inhibiting forms of legitimate dissent, including direct action, and in trying to compel citizens with religious convictions to translate these convictions into an acceptable "secular" language if they enter the public square, thereby forcing the citizens in question to, in effect, go underground with what they care about most deeply, namely, the sources and well-springs of not only their arguments and concerns but their very being.
Indeed, the emergence and, in some instances, triumph of strong forms of constitutional and philosophical intolerance would have "destroyed or severely disabled the moral arguments of both the Abolitionist movement and the civil rights movement." So, from the liberal point of view, Carter argues that "the continuing battle for abortion rights should be fought on the merits of the rights in question, not on the ground that those who are against it have made up their minds according to a forbidden epistemology." Forcing dissenters to conform is a radically intolerant thing to do. Tolerance "is not simply a willingness to listen to what others have to say. It is also a resistance to the quick use of state power—the exclusive prerogative of violent force, remember—to force dissenters and the different to conform." Yet compel we do, especially when religious commitment, or political commitment derived from religious sources, is the matter at hand. The courts have demonstrated that they are, in general, "unsympathetic to civil disobedience" and, given a by-now established body of opinions, particularly wanting in sympathy where religiously-grounded civil disobedience is concerned.
It is, therefore, "illusory for dissidents to look to the courts for remedy, as if this guaranteed a sympathetic hearing if not a favorable outcome. The courts cannot be counted on for either. They are part of the sovereign, not some pristine entity outside of the sovereign apparatus [emphasis mine]." Carter warns dissidents, through this argument, to disabuse themselves of whatever lingering rosy pictures they may have of what the courts will surely do by way of remedial action or relief in their behalf. Certainly dissidents can point to some notable cases when this happened. But Carter suggests that the overall pattern veers in a very different direction—toward a noticeable lack of sympathy and a tendency to shut down rather than to open up the possibility of dissent on deeply held and disputed matters. If you accept my views, Carter suggests, then you are obliged to entertain the possibility that governments (and here, surely, he means democratic governments) de rive their powers "from the dissent of the governed" and not so much their assent. How so? Because true allegiance, rather than grudging conformity, cannot be derived from the demands of a totalizing secular state that "is unable to tolerate action—not just belief, but action—that flows from the rich diversity of meanings that are developed in a flourishing culture of self-constituted communities."
So Carter has wound up and let fly with a 90-mph fastball right down the middle. How does he move to strike out his opponent? We turn to part 3, entitled "Interpretation," in which Carter works through the rhetoric of our courts as they deal with dissent. He uses this section to deepen the reader's skepticism about the ready-to-hand sympathy he or she may feel about the remedial role of the courts.
Post-segregation, the courts acquired a kind of unearned halo as people forgot that Dr. King spent most of his time in jail for contempt of court. But, we muse, those were the bad old courts enforcing de jure segregation, not the enlightened courts doing just the opposite in guaranteeing obedience to the new civil-rights dispensation. The problem with this overly ebullient view, for Carter, is that it has instilled an insistence that "it is a deep and fundamental wrong to defy the courts, wronger somehow than breaking a law passed by the legislature. Unfortunately, this automatic legitimacy accorded court decisions has led to great hubris on the parts of judges," rather than decent humility in interpreting the Constitution. The fact that disobedience is unlikely means that "the judges are free to do whatever they wish." He notes that the late constitutional law theorist, Alexander Bickel, warned back in the 1960s that juridical legitimacy turned on the "link between how the courts reach their decisions and why people obey them." The how was as important as the finding itself, for it told the tale of just how capacious was the court in its consideration of the issues at stake.
We now realize that judges have great difficulty "accepting the religious world view as one that can possibly guide a just and sensible citizen," and the result has been "judicial intolerance of the disobedience that religion sometimes makes necessary." Judicial review, Carter controversially insists, is often just a lot of "fine talk." More often than not what is going on is "family arguments" within the government rather than serious contestation between its distinct branches, or robust dialogue and argument with citizens themselves. So we are well advised to be wary when justices talk of "respect for the judicial process," as they usually mean simply that court orders are not to be disobeyed. In such cases we see clearly that the courts are one arm of the state.
If the reader has any lingering doubt of this sobering fact, Carter points to the refusal on the part of courts to allow the civilly disobedient to address juries. His example is attempts on the part of Operation Rescue defendants in court cases to state their case—the substantive reasons for their disobedience—to a jury and being disallowed to do so by the court. Carter calls this "simply undemocratic." Moreover, this "judicial refusal to allow disobedients to argue to the jury on the justice of the underlying cause [for their dissent] is bound to create a disincentive for being open in disobedience." By refusing to allow open argument and reason-giving, we are much more likely to drive dissent underground, the upshot of which would be to encourage the "disobedient to shirk both moral and legal responsibility."
How would courts "sensitive to history and context" behave by contrast? Carter proffers as an example an openness to the bigotry faced historically by Catholics, including a recognition that parochial schools were often defensive in origin given anti-Catholic hostility in the public schools. This sensitivity might, in turn, afford a more nuanced approach on the part of the court to questions of aid to religious schools, for surely there are forms of aid that do not, by the wildest stretch of the imagination, presage establishment of an official state religion. Indeed, such a notion is risible. Because justices do possess "a degree of independence from the popular will," the interesting issue "is how they are to use such freedom as they hold." Opening courts up to greater awareness of "the repeated petitions of the citizenry" is certainly part of the court's discretion and it would go a long way toward correcting the "embarrassing hubris" of courts, including the Supreme Court.
Although Carter's arguments often seem to proceed largely by assertion, he provides much grist for the mill. His summary of his position stresses dissent rather than consent as lying at the heart of the question of democratic legitimacy, thereby turning political-theory-as-usual on its head. He repeatedly revisits his thesis that the liberal constitutional ethos promotes a tendency to "assume the nation must be morally the same" and, as a result, precipitates a disastrous tendency to deny "community autonomy by force of law." Contrary to much of the story we like to tell about our own broad-mindedness, our national history has not been particularly friendly "to the idea of civil disobedience, particularly disobedience in a religious cause." With Rousseau and other civic republicans (a tradition Carter oddly omits from his treatise), we have tended to be suspicious of citizens who serve more than one master. This fed historically a tacit Protestant civil religion; indeed, for the dominant forms of Calvinism historically, America was itself a kind of religion, or the instantiation of such.
If we were to take a soberer view of our history, we would conclude—if we are really committed to a robust plural democracy—that we must be less likely than we have been in the past and the present to see the disobedient as nigh-unto traitors. We should not, Carter argues passionately, "find ways of forcing our dissenters into acts of disallegiance, so that we can treat them as criminals." Instead, let's be more "truly radical" and "place power in the hands of people." We have been so preoccupied with proceduralism over substantive result; with centralization over community; with bureaucracy over democracy, that we have permitted the body politic to wither on the vine as the "repeated Petitions" of which our Declaration speaks have gone unheeded. Carter's conclusion is a jolt. He declares that if, indeed, this is 'what constitutionalism has wrought, it is but one more sign that our celebration of the Declaration of Independence—indeed, our claim to democracy itself—is a sham.'
This is strong medicine, particularly coming from one as quintessentially moderate in his views as Stephen Carter. By moderate I do not mean tepid. I mean, instead, a principled refusal to traffic in extremes. So I think one should not be hasty in construing his argument as extreme or extremist. Rather, one should ask: How is it that a principled liberal-moderate, a distinguished legal scholar, a committed Christian, and a member of the African-American community, has arrived at such a stark conclusion concerning the closed-mindedness of our current judiciary and our dominant modes of constitutional argumentation? The proof, Carter would say, is in the pudding. Look at the intolerance concerning religious argumentation in the public square, at least from within the liberal monist perspective—the perspective that prevails in the academy. Look at the restrictions on religiously based dissent, particularly when it leads to direct action. Look at the bizarre ways in which those who preach diversity may take steps to undermine the institutional and communal plurality on which real, by contrast to ephemeral, diversity is based.
This is all quite persuasive. But I want to suggest the following for consideration. Perhaps the elite academy-court nexus doesn't tell the whole story. Perhaps the tide is turning, at least somewhat. The current Supreme Court seems to be backing down a bit from the most extreme "bright line" arguments (see Agostini v. Felton, e.g.) and legislators, on the state and federal level, are far more likely to push legislation in recognition of the inter mingling of politically and religious imperatives that have been, and re main, a constitutive part of the warp and woof of American society—whether ill-considered, as the recent "10 Commandments" bill—or well-considered and about time—as are various proposals for charitable choice and public means of supporting faith-based common-good activities and services.
To be sure, the ardent separationists (if not extirpationists—those seeking to efface utterly any trace of religion in any aspect of public life) have lobbying efforts that are restless engines that never cease. But it is my sense that many of the arguments of such groups—the American Civil Liberties Union on this issue, the Alliance for the Separation of Church and State—are seen increasingly as both extremist and radically a- or antihistorical. Maybe I'm too optimistic here about the coming of a more nuanced and realistic set of legislative initiatives and judicial reviews of those initiatives. But I hope I'm right and that, when Stephen Carter revisits these vital matters in the years to come, he will be able to conclude that our Declaration is not a sham but a living, breathing reality.
Jean Bethke Elshtain is Laura Spelman Rockefeller Professor of Social and Political Ethics at the University of Chicago.
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