A reminder of the caution with which the U.S. must proceed in its admirable efforts to advance the cause of liberty and freedom in the world. The first in a series of special American Spectator essays.
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Religion in America has helped train citizens on self-government by giving them independent congregations to manage even in places that when first settled had no civil government. The struggle between religious faiths has at times been acute, as with Protestant attacks on the Roman Catholic church in the 19th and early 20th centuries. But this rivalry was suppressed by the courts, weakened by the slow realization that Catholics here were Americans first and Catholics second, and by the election of a Catholic president in 1960. As with the economy, so with religion: markets generate mutual understanding far better than monopolies.
Religion has powerfully affected American politics: its leaders were at the forefront of efforts to abolish slavery and still struggle over war, abortion, and gay rights. Indeed, among white voters in the 2004 presidential election, religious differences explained a larger fraction of their votes than did their age, sex, income, or education. At the extremes, religion can lead to violence, as when some radical fundamentalists bombed abortion clinics or radical secularists sustained the Weather Underground. But for most people, religion has a moderate impact despite the fervent rhetoric directed at it by several contributors to the New York Times.
Religion in America explains a host of worthwhile traits. As Arthur Brooks has shown, people who are religious are more likely to live in two-parent families, achieve upward economic mobility, resist the lures of drugs and crime, and overcome health problems. Religious people are more likely to give to charity, including secular ones, than are non-religious ones, and they are more likely to donate blood, give food or money to homeless persons, and to return excessive change mistakenly given to them by a cashier.
Religion, of course, cannot be the sole guide to a useful democracy. People who believe that their faith justifies their desire to dominate other people or to destroy the infidels are on a crash course toward social destruction. Iran is an example. And a country in which a secular autocrat has imposed Draconian rule as a way of curbing the excesses of religion has created an alternative no better than the one he suppressed. Iraq under Saddam Hussein is an example.
Religion requires constitutional boundaries to limit the radical demands of a few. But constitutional government without religion may, as the examples cited earlier in this suggest, give to people no sense of common destiny nor any faith in the transcendent value of their principles.
No matter how many mistakes they make in understanding the Bill of Rights, no matter how many times they may support policies hostile to liberty, Americans share at a deep level a commitment to freedom. Ask almost any member of the armed forces why they are fighting in Afghanistan or Iraq, the most common answer is that they are “defending freedom.” Ask almost any citizen what it is they like most about this country, and they will say its freedom.
Now, fighting in the Middle East involves a lot of issues having little to do with freedom in America and many American domestic polices often reduce freedom. But despite that, our verbal commitment to this goal is real. And this view means that Americans tend to define the issues that divide them as a contest of rights more than as a matter of choice.
We see this in the flood of lawsuits by which Americans tend to manage their differences. Some people think that this is because we have too many lawyers and a few have suggested that to solve the problem we close our law schools for five years. And it is true that we have, in proportion to our population, three times as many lawyers as does Great Britain and 25 times as many as Japan.
But we are not more litigious because we have more lawyers; we have more lawyers because we are so litigious. Not even the framers of the Constitution anticipated this. As Alexander Hamilton put it in Federalist Number 78, “the judiciary…has no influence over either the sword or the purse, no direction of either the strength or the wealth of the society, and can take no active resolution whatever.” As a result, “the judiciary is beyond comparison the weakest of the three departments of power.” Things turned out a bit differently than Hamilton supposed. The courts have become immensely powerful for two reasons: the existence of an independent judiciary and the beliefs Americans have about the foundation of their government.
Courts that are independent of the legislative and executive branches will inevitably become the referee that determines when a law or order violates the Constitution. That document did not say this, but it did say that it was the supreme law of the land. That being so, there must be some organization that will defend that claim. Early on, the Supreme Court under the leadership of John Marshall became that entity, and since then no one has doubted it. As the federal government grew in size and authority, more and more issues arose that implicated the Constitution, and so more and more often the Court decided how that document should be read. Since 1789, the Supreme Court has declared more than 160 laws to be unconstitutional.
But far more important than judicial review in explaining America’s commitment to rights has been the legacy of the Revolutionary War and the sentiments expressed in the Declaration of Independence. That document said that “all men are created equal” and are “endowed by their Creator with certain unalienable rights” that include “life, liberty, and the pursuit of happiness.” To secure these rights, governments are created that derive their “just powers” from the consent of the governed.
This language has had a lasting influence over how Americans think about government even though the Supreme Court has rarely made any reference to the Declaration and lawyers are not trained to think that this document has any legal value. To judges and attorneys, the Declaration has no more authority, and probably less, than does the preamble to the Constitution. But to Americans, the language of the Declaration is remembered far more clearly than that of the Constitution. Even though in 1776 neither women nor slaves could vote, we recall the claim that we were created equal. Though the government may imprison or execute criminals and send soldiers off to die, we have a right to life, liberty, and the pursuit of happiness (though not to happiness itself).
This language fits well with the fact that in America we had no experience with a hereditary aristocracy or with a king who could rule by divine right. As the country expanded west beyond the few million along the Atlantic coast, Americans took with them a shared view of equality with its accompanying hostility to displays of superiority and a desire for each person to be esteemed and have a fair share in government. They also embraced a desire for liberty, but not license; that is, the freedom to act in accord with decent principles, many of them religiously defined. As towns were organized, these principles shaped their governance, not because Thomas Jefferson had written them but because the Americans shared these views before they tried to design any local political arrangements.
This tradition has equipped Americans with a commitment to natural law: that is, to a belief that laws cannot be justified simply as the commands of a ruler but only as an expression of some higher standard that endows people with claims against both other people and the government itself if either oversteps what we believe to be the right standards of conduct. This commitment helps us understand an otherwise puzzling fact: Americans typically have a low opinion of our governing institutions, especially Congress, but an exceptionally high opinion of the constitutional system of which they are a part.
These views impose constraints on what government might do. In Europe, the slow replacement of kings with elected parliaments did not alter the general assumption that the people owed the government something, namely, a respect for authority. In America, as Seymour Martin Lipset has argued, people who had that view (the Loyalists) emigrated to Canada while those who thought the government owed respect to the people remained and fought as revolutionaries. The differences in outlook persist to this day. Canada has a larger welfare state than the United States in part because Canadians (notably those in the east) want welfare and Americans (notably those in the middle and far west) do not.
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