A Strange New Regime: The Naked Public Square

The phrase "one nation under God" was only added to the Pledge of Allegiance in 1954. Observers have frequently noted that it appeared at an unseemly time and for dubious reasons -- during the allegedly paranoid national hysteria called McCarthyism. There is an element of truth in that way of telling the story. But I expect there is a much greater significance to the phrase "one nation under God." Politics is in largest part a function of culture, and at the heart of culture is morality, and at the heart of morality is religion. The word "culture," we need always to be reminded, is derived from cultus. Whether in Athens of 5th century B.C. or in Rome of 2nd century A.D. or in the United States of America at the end of the 20th century, culture is most importantly the reflection of what we most venerate; it is the expression of the commanding truths of the time, the truths by which we are obliged, the truths that hold us together -- as in "religion," from the Latin religere, which means to fasten or bind.

That Congress thought it necessary in 1954 to formally declare that this is "one nation under God" reflected not simply a fear of communism, but a deeper anxiety about the culture, about who we are as a people. Supposedly, the 1950s of the Eisenhower era was a time of quiescence, even complacency, in American life. There was an enormous "religion boom," measured by almost every index of belief and behavior, that climaxed in 1959. Intellectuals of the time assured us that it was a period marked by the "end of ideology," when all the really big questions about how we ought to order our life together had been resolved. Yet I expect that such smooth and frequently smug assurances were attended by a deeper anxiety. I expect that many, if not most, who voted to declare that this is "one nation under God" did so because they sensed that it could no longer be taken for granted that this is one nation under God. The 1960s and what followed vindicated such anxiety in spades.

For some, the phrase "one nation under God" means that America is somehow God's elect nation, a chosen people exempt from the corruptions and tragedies that mark the histories of other peoples. I take it to mean, first of all, that we understand ourselves to be a nation under judgment. That is the meaning consonant with the numerous statements of the Founders who explained what they meant by this novus ordo seclorum -- this new order of the ages -- as it is called on the Great Seal of the United States of America. Thus Jefferson, "I tremble for my country when I reflect that God is just."

1954 was already far removed from the constituting truths of the founding era. And how far we have now come from 1954. I hold no brief for the idea of a "Christian amendment" to the Constitution, an idea that some have agitated for decades. Such an amendment is unnecessary and mischievously provocative. More important, no nation, and certainly not this nation, is worthy of calling itself Christian. But I do believe, with the Founders, that this experiment in a free and virtuous society cannot be sustained apart from the commanding truths of the culture that gave it birth. How far we have come from the founding, and even from 1954, is made evident in innumerable ways. Not least, it is evident in the fact that those who appeal to the founding vision are today widely condemned as religious fanatics, as aliens and sectarians who would "impose their values on a pluralistic society."

I could easily take up several hours in citing the copious statements that reflect the founding vision of this republican experiment in democratic governance. But simply to jog our memories, permit me to allude to a few. John Jay, the first Chief Justice of the Supreme Court: "Providence has given to our people the choice of their rulers, and it is the duty of our Christian nation to select and prefer Christians for their rulers." John Adams, the first Vice President and second President: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." And as recently as 1952, Justice William O. Douglas (of all people!): "We are a religious people whose institutions presuppose a Supreme Being."

In 1954, the year in which the Pledge of Allegiance was amended, Chief Justice Earl Warren had this to say: "I believe no one can read the history of our country without realizing that the Good Book and the spirit of the Savior have from the beginning been our guiding geniuses.... Whether we look to the first Charter of Virginia or to the Charter of New England or the Charter of Massachusetts Bay or to the Fundamental Orders of Connecticut, the same objective is present... a Christian land governed by Christian principles. I believe the entire Bill of Rights came into being because of the knowledge our forefathers had of the Bible and their belief in it: freedom of belief, of expression, of assembly, of petition, the dignity of the individual, the sanctity of the home, equal justice under law, and the reservation of powers to the people. I like to believe we are living today in the spirit of the Christian religion. I like also to believe that as long as we do so, no great harm can come to our country."

That was 1954. This is now. You may recall that in April of this year, Justice Antonin Scalia spoke of his Christian faith at a law school in Mississippi. Unlike Warren, Scalia did not set forth religious and moral truths that he claimed are normative for the country. Rather, he gave a personal testimony and discussed the difficulties in being a Christian in thoroughly secularized sectors of our elite culture. This was news; this was scandal; and pundits weighed in with alarmed commentary on Scalia's alleged challenge to the separation of church and state. Not only is it no longer permissible to suggest that Christianity is socially normative, as Earl Warren did; it is now no longer permissible for a justice of the Supreme Court to declare in public his personal allegiance to the Christian faith. Scalia described Christians as "fools for Christ," and some commentators, magnificently ignorant of the origins of the phrase, opined that Scalia was admitting his mental incompetence to sit on the Court.

I do not wish to make too much of this one incident. Not because it is unimportant, but because it is only one out of so many incidents reflecting a pattern that I analyzed 12 years ago as "The Naked Public Square" -- public life stripped of all reference to religion and religiously grounded morality. The forthcoming issue of First Things carries a symposium that is titled "The End of Democracy?" With equal merit, it might have been entitled "The End of Politics?" The best short definition of politics is given us by Aristotle. Politics, he said, is free people deliberating the question, How ought we to order our life together? The "ought" in that definition indicates that politics is essentially a moral enterprise. Not, of course, that all politicians are moral, but the enterprise itself is moral in nature.

It is frequently said that you cannot legislate morality. In fact, you cannot legislate anything but morality. Any question of political moment has to do with questions such as justice, equality, fairness, and the common good. All of these are inescapably moral categories. However confused may be their understanding of the connections between morality and religion, for the overwhelming majority of Americans, morality is derived from religion. To interpret the separation of church and state as the separation of religion from public life is, quite simply, a formula for the end of politics. This is why Tocqueville could call religion "the first political institution" of American democracy. His point was that it is from religion, and within the context of religious associations, that most Americans learn the virtues and habits that they bring to the deliberation of the question, How ought we to order our life together?

This is called self-governance, which for the Founders was the key metaphor for understanding our form of government. The late Christopher Lasch wrote incisively in The Revolt of the Elites that in the last half-century, the meaning of "democracy" has changed from self-government to upward mobility. It is now commonly claimed, Lasch observed, that the proof that we are a democratic and open society is that people have the opportunity to move out of the governed masses into the governing elite. The end of politics is accompanied by the rule of judges, regulatory agencies, and other institutions that are least accountable to We the People. To complain about this is not simply a populist twitch. Rather, it is to point out -- soberly, cautiously, and in full awareness of the implications -- that we may no longer be living under the constitutional order that the Founders established, that all of us learned about in our civics textbooks, and that public officials are solemnly sworn to uphold.

Many factors have contributed to the displacement of the former constitutional order and the establishment of the present regime. I realize that, except for the Straussians among us, there is resistance to the term "regime." Regimes, Americans like to think, are what other countries have. By the term "regime," however, I mean simply the actual, existing system of government, as distinct from the system of government prescribed by the Constitution of the United States. No factor has contributed so powerfully to the new regime as the separation of culture -- meaning cultus -- from the making of law, especially from the making of law by the courts.

Consider, for example, the recent Romer decision in which the Supreme Court overruled the people of Colorado in their democratically approved amendment against special protections for people who define themselves by their homosexual behavior. I ask you to set aside for the moment any views you may have about homosexuality or what laws, if any, there should be about homosexuality. Rather, I would direct your attention to the logic of the majority decision written by Justice Kennedy. According to the Court, the Colorado amendment served no legitimate public purpose and is "inexplicable" apart from an irrational "animus" against homosexuals. Consider what is being said here. The highest court of the land is declaring that five millennia of moral teaching about the right ordering of human sexuality for the personal and communal good has no place in our law. The teaching of Athens, Jerusalem, and 2,000 years of Christian tradition is cavalierly dismissed as irrational animus. The people of Colorado do not believe that; nor, I am confident, do the people of any other state of the Union. But the Supreme Court declares it to be the law of the land. Little wonder that the Court has in recent years worried out loud about the moral legitimacy of the law that it is making.

We are incessantly told that it is impossible to return to the days of the Founders. The Constitution, it is said, is a "living document" responding to the ever-changing needs of a rapidly changing society, and so forth and so on. I believe it is not too much to say that those who talk about a "living Constitution" are in fact saying that the Constitution is dead. For them, it is an infinitely pliable text that, in the words of contemporary literary criticism, has no authorial voice, but only the voice that we attribute to it. We should not want to deny that there have been important changes since the founding period. Of course much has changed in America, and much has changed also for the better. One has only to mention slavery, the thought of which occasioned Jefferson's trembling before the justice of God.

But the changes for the better have always been in obedience to, not in rebellion against, the constituting truths of the American experiment. The most dramatic example in our time is the civil rights movement as it was given magisterial expression by Martin Luther King, Jr. His justly celebrated "I Have a Dream" speech of August 28, 1963, resonates with the constituting and commanding truths, calling for the fulfillment of a promise long delayed. Those who today fear the assertion of moral truth in public argue that ours is an increasingly pluralistic society in which there is no moral truth, but only claims to moral truth in conflict. Such critics typically and greatly exaggerate the change in American society. The survey research of the last 70 years suggests that the American people are at least as committed -- possibly more committed -- to what is broadly construed as the Judeo-Christian moral tradition as they were when Tocqueville described religion as the first political institution of American democracy.

Even were the social changes as dramatic as some suggest, that is all the more reason to reaffirm the constituting truths. Jefferson understood this. Jefferson asked in 1781, "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?" His answer -- and, in similar and frequently identical words, the answer of the other Founders -- was emphatically in the negative. This is an argument that is not being made effectively today. It is precisely as a society becomes more pluralistic, as there are more claims to rights in conflict, that we must appeal to truth that transcends such conflicts.

Why should the majority respect the liberties of troublesome or disagreeable minorities? The only sustainable answer is that the majority believes that those in the minority possess, in the words of Jefferson, "liberties [that] are of the gift of God." Remove that transcendent warrant, and all politics is reduced to Nietzsche's "will to power." Minorities that many Americans find disagreeable are today, I believe, making a fatal mistake. Repudiating the transcendent and commanding truths of our cultural story line, they seek power and protection in a judiciary that has joined in the same act of repudiation. Thus do they stand behind the robes of judges, defying the people who are, in democratic theory and practice, the repository of political sovereignty.

Such minorities seeking rights refuse to join in the democratic deliberation of the question, How ought we to order our life together? Abandoning the great political task of persuasion, they resort to judicial fiat. What they cannot get from the people and their representatives they believe they can get from the courts. And who can deny that they have had astonishing success with that strategy? But it is, I believe, a perilously shortsighted strategy. It can lead only to the definitive end of democracy or to a majoritarian reaction that may also be profoundly anti-democratic. In either case, they lose. This is why I have argued that the naked public square is a very dangerous place, especially for minorities. Where there is in the public square no transcendent aspiration to the good, there is no transcendent barrier against the inclination to evil. And so Jefferson's question: "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?" The answer, I am convinced, is "No."

There is a new pluralism in American life, and it is a moral pluralism. It is not because the American people are less attached to what is called the Judeo-Christian moral tradition. It is, rather, a pluralism created by the rise of a new class -- call it the knowledge class, if you will -- that has entrenched itself in the institutions least accountable to the people, and especially in the judiciary. This is the phenomenon that gives form to what are called "the culture wars." When I first began to write about the culture war many years ago, critics thought the term excessive, especially when I referred to the Kulturkampf, an analogy to Bismarck's campaign of the 1870s to eradicate the influence of religion in German public life. I believe the analogy is apt. What has happened in subsequent years has, in my judgment, only provided added confirmation of the culture war analysis.

Let me say what I mean by culture war. We are two nations: one concentrated on rights and laws, the other on rights and wrongs; one radically individualistic and dedicated to the actualized self, the other communal and invoking the common good; one viewing law as the instrument of the will to power and license, the other affirming an objective moral order reflected in a Constitution to which we are obliged; one given to private satisfaction, the other to familial responsibility; one typically secular, the other typically religious; one elitist, the other populist.

These strokes are admittedly broad, but the reality is evident enough to anyone who attends to the increasingly ugly rancor that dominates and debases our public life. And, of course, for many Americans, the conflicts in the culture wars run through their own hearts. The conflicts also run through our institutions, including the courts. But I believe it is accurate to say that, in a long series of decisions, the Supreme Court -- and therefore, in due course, the entire federal and state judiciary -- has tended to put the law on one side of the culture war.

How I wish -- and perhaps you wish as well! -- that we could continue this analysis without reference to abortion. Is there no end to this rancorous debate? The answer is that there is no end in sight. The abortion debate is about ever so much more than abortion. It is about the nature of human life and community. It is about who belongs to the "we" in the question, How ought we to order our life together? It is about whether rights are the product of human assertion or the gift of "Nature and Nature's God." It is about doctor-assisted suicide, euthanasia, eugenic engineering, and the protection of the radically handicapped. But the abortion debate is most inescapably about abortion. It is most crucially in that debate that the Supreme Court has gambled its authority, and with it our constitutional order, by coming down on one side in the culture war.

This is most explicitly spelled out in the 1992 decision Planned Parenthood v. Casey, which, of course, is in continuity with the turn taken by Roe and Doe in 1973. The logic, or illogic, is of a piece with Romer, and the Ninth and Second Circuits were justified this year when they appealed to the abortion decisions in claiming that doctor-assisted suicide is a constitutional right. In Casey, the Court most clearly declared its belligerency on one side of the culture war. The decision endorses the radically individualistic concept of the self-constituted self. In what some critics have called "the mystery passage," the Court waxes metaphysical in its assertion that the abortion liberty is necessary in order "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." "Beliefs about these matters," says the Court, "could not define the attributes of personhood were they formed under compulsion of the State." Not only does authentic personhood require freedom from the state, but it also requires freedom from other potentially encumbering communities. It requires freedom from spouses, for example. The Court therefore struck down the requirement that fathers be notified before mothers get an abortion. That, it is said, would be an "undue burden." If abortion is a constitutional right, one might ask, how can it be permissibly burdened at all? But, of course, it was only declared a constitutional right on January 22, 1973. Before that, it was not only burdened; it was, for the most part, prohibited.

Marriage, the Court declares, is only an "association" of individuals entered into for the fulfillment of personal needs. The notion of the unburdened, unencumbered, autonomous self drives the entirety of the Court's reasoning. In Casey and other decisions, liberty is not the "ordered liberty" of the Founders; nor is it liberty directed to the good and formed by communities of memory and obligation. Rather, liberty is, without remainder, the liberty of self-will, self-expression, and indeed self-constitution. For the Court, as for many Americans, that pitiably reduced concept of liberty "trumps" every other consideration. Which is why the slogans of "choice" serve the pro-abortionists so well.

In the otherwise unfortunate decision, Lee v. Weisman, handed down only a few days before Casey, the Court wisely cautions against the establishment of a state-sponsored "civic religion." The same justices seem to be blithely unaware, however, that in Casey and other rulings, they are in fact asserting and endorsing a philosophy of at least quasi-religious status. Addressing the "concept of existence, of meaning, of the universe, and of the mystery of human life" crosses into those ultimate concerns by which religion is ordinarily defined. As I have argued elsewhere, the naked public square cannot remain naked. Politics, like nature, abhors a vacuum. Something is not simply eliminated; it is displaced by something else. Against alternative understandings of the self in relation to community, normative truth, and even revelation, the Court recognizes no other reality than the isolated individual defining his or her reality.

Thus does the Court reinforce the Hobbesian idea that we are a society of strangers, perhaps of enemies, and it is the chief business of the state to prevent others from interfering with or obliging the Sovereign Self. The result is the atomistic and potentially totalitarian doctrine that society is composed of only two actors, the state and the solitary individual. This is a "civic" religion in the sense of being sponsored by the state, but it is hardly civic in character and consequence. It is in fact the undoing of the civitas, of the "civil society" of myriad persons, associations, and communities of moral tradition interacting within the bond of civility and mutual respect. The description of the self, of community, and of ultimate meaning that is espoused by the Court is incompatible with Christian and Jewish teaching and, I am confident, with the belief and experience of most Americans. It is, in effect although not in name, another religion. It is in fact the Supreme Court's definition of the "concept of existence, of meaning, of the universe, and of the mystery of human life." It is, according to the Court, the national creed established by the Constitution.

I and others have been criticized for raising the question of the moral legitimacy of the existing regime and whether it can any longer command the obedience of conscientious citizens. We did not raise the question. The majority in Casey raised the question of the legitimacy of its authority. The justices of the Court say that they are putting the authority of law itself on the line, and call upon the American people to follow their lead. "Where in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe... its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

That is a truly astonishing assertion, as though We the People have no higher allegiance than our allegiance to the Supreme Court. The Court goes further. It says that citizens will be "tested by following" its decision. Suddenly, it is not the Court but the American people who have been put on trial. We as a people have been here before, and the precedent is not a happy one. Abraham Lincoln had the notorious Dred Scott decision in mind when he said in his First Inaugural Address: "The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

As Lincoln contended in his time, a decision of the Supreme Court is not, by virtue of being a decision of the Supreme Court, "the law of the land." Casey, like Dred Scott, is not the law of the land. It is one wrong decision affirming earlier wrong decisions. So long as it and related decisions stand, they must guide the decisions of other courts, and those in government office must be mindful of that. But the Constitution is the law of the land; contrary to so-called judicial realists, the Constitution is not just whatever the Supreme Court says it is. In this land, in this constitutional order, the people, through their representatives, make the law of the land. Or so it was thought.

Before and after he became President, Lincoln strove earnestly for the overturn of Dred Scott. He failed, and war came. It is almost impossible to imagine that there could be a civil war like the last one. But the destructive effects of anomie and anger are already evident as a result of law divorced from constitutional text, moral argument, and democratic accountability. The ever-fragile bonds of civility are unraveled as politics becomes, to paraphrase Clausewitz, war pursued by other means. Lawless law is an invitation to lawlessness. Four justices dissented in Casey. Justice Scalia wrote in dissent, "Against the Court are the twin facts that the American people love democracy and the American people are not fools." We must hope he is right; that the people will not forever -- they will not for long -- be denied democracy and treated like fools.

William Lloyd Garrison and his fellow abolitionists publicly burned the Constitution, calling it "a covenant with death and an agreement with hell." The Court today worries about the angry disillusionment of millions of Americans who have been denied their right to make the case in the political arena for protective abortion law, and for so much else. The justices are right to worry about the moral delegitimation of the Court and the undermining of the rule of law. The course that the majority has chosen is the surest way to the result that they fear.

We do not know what all Congress had in mind back then. No doubt, as is the way with politics, motives were mixed, and some representatives did not know themselves what, if anything, they had in mind. But I would like to think that they were guided, even providentially guided, when they added to the Pledge of Allegiance "one nation under God." Perhaps they sensed that the implicit assumptions no longer held. It had to be said. Forty-two years later, it is too early to say that their effort, and the experiment they sought to protect, has failed. Or maybe not. Maybe Americans have become so supine, so accustomed to being denied democracy and treated like fools, that they no longer notice or no longer care that they are ruled by government without the consent of the governed. We are in honor bound to hope that is not the case.