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Natural Law
Liberalism and the
Issues Facing
Contemporary American Public Philosophy
Christopher Wolfe
Marquette University
The second part of the twentieth century
saw the United States engaged in a struggle with
totalitarianism, and its public philosophy was deeply
influenced by the sense that it represented “Western
civilization” against a new barbarism.
With the stunningly quick demise of communism toward the end
of the century, this struggle was succeeded by one internal to
the West, one which in fact raised questions even about the
unitary character of “the West”. Rather than an “end of
history” with liberal democracy triumphant and unchallenged,
questions about the very nature of liberal democracy emerged
more forcefully in the internal life of Western civilization.
One interesting perspective on the
post-communism world was that of Time magazine’s 1994
“Man of the Year”, Pope John Paul II. Karol Wojtyla became
pope at a time when communism still seemed strong and
sometimes aggressive, and he participated in changes that
helped lead to its downfall. Subsequently, he has focused his
attention on the situation of the post-communist world, from a
rather broader perspective than many others (being less
confined by national and temporal horizons), and has
identified key civilizational questions. Western liberal
democracy triumphed in the Cold War, and it did so under the
banner of freedom. But what is this freedom? Is it an end in
itself? Or is it, by its nature, oriented toward some other
end: toward knowing and living what he calls “the truth about
the human person.”
This relation of freedom and truth is the
question at the heart of America’s current “culture wars,” and
it is these issues that are central in the battle over
American public philosophy as we enter the new millennium.
At the same time, however, recent events
have raised new questions about our public philosophy in
another context, as we find ourselves in the midst of a “clash
of civilizations.” We are today much more conscious of the
fact that liberal democracy is by no means the worldwide norm,
especially in Islamic and Sinic civilizations. Rather than
taking the political ideals of “north atlantic” nations as a
given–as John Rawls, for example, seems to–we have to face the
fact that we must make a more persuasive case for our
principles, if we wish to see them triumph throughout the
world.
In this article, I would like to provide a
context for further study of these important issues of “public
philosophy.”
In particular, I want to identify what I think are the key
issues for the West as it enters the 21st
century. The resolution of these issues will define
contemporary public philosophy. Eight of these issue sets are
substantive: life, death, and personhood; marriage, family,
and sexuality; the role of women in society; education and
culture; race; religion; citizenship and immigration, and
political economy.
Five others are more structural or procedural: the role of the
judiciary; the marketplace(s) and centers of private power;
the roles of civil society and government; federalism and
decentralization; and common core values.
This list does not include important issues
of foreign and defense policy, what might be called the face
of public philosophy towards the outside world. For reasons
of time, I will confine myself to the issue sets regarding the
internal life of our nation, and within those, to the
substantive rather than the procedural issues.
After describing these issues, I will
survey a number of ways of approaching the task of answering
them, and then I will elaborate what I think is the most
adequate public philosophy, which I call “natural law
liberalism.” I will conclude by giving a brief outline of the
core principles of natural law liberalism.
Life and Death and Personhood
The first set of issues concerns life and
death. Abortion, euthanasia, reproductive technologies, and
“justifiable killing” (the death penalty and war) are
prominent issues here.
Abortion, despite the almost unanimous
efforts of national politicians, remains a live issue, and
perhaps the most profoundly divisive issue, in American
politics. Ironically, the battle between liberals and
conservatives on this issue seems to reverse what in the past
was the ordinary structure of debate. In the past, it was not
uncommon to find religiously-oriented moralists deeply
suspicious of modernity and all its works (including modern
science and the expansion of individual rights) pitted against
modern progressives for whom modern science and the expansion
of rights was a new kind of “orienting framework for life”–a
worldview, or even a religion, if you will. (The Scopes trial
was the classic instance of such forces squaring off.) On the
issue of abortion, however, it is the “moral traditionalists”
who have been able to invoke the wonders of neonatal
technology, who often rely on the relatively straightforward
scientific facts about the beginning of an individual human
life from the point of conception, and who press for an
expansion of rights. The “progressives” find themselves in
the position of using scientifically awkward circumlocutions
for the conceptus, such as “blob of tissue” or “products of
conception,” and of opposing an expansion of the category of
rights-recipients to a new group.
But perhaps appearances may be misleading.
The underlying worldviews may still be the same, but the
difference is not so much over when human life begins as over
the significance to be accorded what is concededly some form
of human life, at its various stages. Thus the debate
typically centers on a purported difference between “human
life” and “personhood.” “Science”, of course, has nothing to
say about this, strictly speaking, since it is a philosophical
(or theological) matter. Nonetheless, there is a certain
rationalist and utilitarian worldview that is often associated
with science that tends to minimize the importance of merely
“potential” (relatively “un-actualized”) human life,
especially in view of other factors “in the balance”, above
all, personal, economic, and sexual freedom for women (which
may also advance the interests of certain men),
and, sometimes, the negative value accorded human lives under
conditions “inconsistent with” human dignity.
Euthanasia is an issue that has only begun
to be discussed, though only one state (Oregon) has authorized
assisted suicide. Not only the suffering of terminal
illnesses, but also the decline of human powers in old age,
are thought by some to rob human life of its “dignity,”
especially in a society whose medical resources permit greater
prolonging of life (not always wisely). As with abortion,
“un-actualized” human capacities are not thought to provide an
adequate ground for an inviolable human dignity. In fact, the
disappearance or serious decline of such actualized capacities
are grounds to argue for “death with dignity”, to argue, that
is, that dignity may call for death.
The logic of euthanasia starts with
individual autonomy, the right of a person to choose to end
his own life (if necessary, with the assistance of others).
But if the right to life is not really “inalienable”--if it
can be given up--then it is hard to see why any absolute
barrier should be erected against third parties making such
decisions in at least some cases, beginning with instances of
incompetent patients.
Arguments for euthanasia are typically made
in the name of compassion--indeed, the basis for such acts in
compassion may be viewed by some as the basis of their moral
justifiability. There is reason for concern, however, that
judgments based on compassion may end up being based on
feelings or a utilitarian calculus dominated by “gut”
preferences--at the expense of reason--and one may ask whether
such judgments are appropriate.
And a process of reasoning that is selective about which human
lives can be regarded as having human dignity, or that even
may use human dignity as a ground for actively ending certain
human lives, must be viewed, at a minimum, with caution, and
at a maximum, with fear, especially when we consider the human
capacity for rationalization (e.g., concluding that lives that
happen to be very expensive to sustain are not really “lives
worth living” at all). When we factor in a likely future
scenario in which medical advances continue to extend life,
and when the burden of supporting the aged falls very heavily
on a smaller number of younger people, it would be surprising
if pressures for expanded euthanasia were not to increase.
What is at issue here is what human dignity
means. It is generally agreed to rest on something other than
the “achievement” of a given person, an actualization of his
or her human powers--for a basis of that sort would easily
authorize denying the dignity of countless human beings. But
if it rests on “capacity” or “potential”, on what grounds can
it be denied to human life at any point after conception?
The pro-choice (abortion and euthanasia) answer is largely
framed, for rhetorical purposes, as an issue of individual
autonomy, allegedly bracketing the substantive question of the
status of the incipient or declining human being. But can
such a question truly be bracketed, or is the bracketing
itself not an answer?
In a different area of scientific
technology regarding human life, scientists have been able to
develop remarkable technological means to assist infertile
couples in having children, and medical research has just
entered into a new era of striking capacities for genetic
manipulation and cloning. A compassionate concern for the
plight of such couples has seemed to many a sufficient
justification for using such technologies. But these
capacities raise the specter of human beings “making” other
human beings, and it is not clear how this will affect our
attitudes toward the dignity of human life. Does it matter
whether a human being is engendered as the “natural” outcome
of an act of love between two human beings, or from an act
(however much based on compassion) of scientists, doctors, and
tests tubes?
And, finally, what are the implications of
different understandings of human dignity for certain forms of
“justifiable killing”, such as capital punishment and war?
When the representatives of the political community inflict
death as the just punishment for a crime, it can be argued
that this penalty not only defends the community and innocent
lives, but also vindicates the dignity of the one who suffers
the punishment, on the grounds that it affirms the reality of
his free will and appeals to his intellect to recognize the
evil of his action and repent.
But where does this leave the connection between human dignity
and the inviolability of human life? Is this only a different
way of arguing that human dignity does not attach to human
life per se, but only to human life under certain
circumstances? It is true, of course, that capital punishment
is inflicted on human beings who have freely chosen seriously
evil actions, which is not arguably the case with issues such
as abortion. But this leaves open a number of questions:
whether the benefits of capital punishment (relative to other
forms of punishment, such as life imprisonment) are so great
as to require the death penalty, assuming that society can
still protect itself by other methods of punishment; whether
the foregoing of capital punishment might contribute to a
deeper appreciation of the worth of all human lives; whether
the imposition of the death penalty, even when justified, may
have corollary moral effects that we should seek to avoid,
such as reinforcing a spirit of vengeance or a utilitarian
spirit in calculating whether to kill a person. The issue
seems to me much more complex than either death penalty
partisans or opponents are usually willing to acknowledge.
Those same issues are raised in the context
of “justified killing” in war. Such questions about the
limits of such justified killing have always been with us, of
course, but several features of the contemporary world make
them even more complex. First, the extraordinary destructive
power of modern weapons (especially nuclear weapons, but also
conventional weapons, and biological and chemical weapons as
well), capable of obliterating whole populations, tempts
people today to abandon rational moral limits on the use of
military power, for example, those based on the hard-won
distinction between combatants and non-combatants. And while
there are difficult questions and grey areas regarding
“collateral damage” and the relation of particular
non-military personnel to a nation’s military activity, it
would be dangerous simply to believe that the end of a
nation’s self-preservation justifies any means.
Second, modern technology (nuclear, biological, and chemical
weapons) potentially offers to large numbers of small nations,
and even to very small groups of terrorists, the capacity to
inflict extraordinary carnage on large populations. It is not
hard to imagine such acts, and the brutal responses in kind
that fear and anger might produce. (If ends justify means,
would our moral principles regarding torture of terrorists,
for example, hold firm?)
In these life and death issues, it is the
very meaning and significance of human life, “the human
person,” that is called into question, perhaps more
dramatically than at any previous time. Answers to these
questions will be shaped by a key element of a public
philosophy--its philosophical anthropology.
Marriage, Family, and Sex
The second set of issues revolve around
marriage, family, and sex. This must be a matter of great
importance, given that the family is the “cell” of society,
the primordial human community on which all others are based.
The facts here are disturbing to almost
everyone, at some level. Divorce has very much become a way
of life for Americans. From being a relatively rare event, it
has become both relatively normal (if still painful), and
embodied fully in law, through no-fault divorce. Americans
can now be said to be monogamous only in the sense that people
have one spouse at a time.
In addition to families suffering broken
marriages, there are many families that never experience
marriage. Cohabitation has gone in a generation or two from
being a rare and shameful lifestyle to the more or less normal
pattern for younger Americans (though many of them will go on
to get married). Illegitimacy has reached extraordinary
heights, cutting across racial and class lines, with powerful
social consequences.
In recent years, moreover, there has been a
move to redefine marriage and family to encompass homosexual
relationships, and more broadly to legitimize homosexual
activity as one among many sexual lifestyles.
There are some who argue that considerable
variation in family forms is natural and unproblematic--there
is no “family” but only different kinds of “families.” There
is some truth in this, undoubtedly, since families have
differed in various ways from place to place and time to
time. The question is what the outside limit to this
variability might be, if families are to serve their purposes.
Social science evidence seems more and more
to confirm harmful effects of family non-formation or
breakdown in America. While it is essential to recognize that
many single-parents struggle heroically to provide a good
upbringing to their children, and that human beings can be
remarkably adaptable under non-ideal conditions, it is also
necessary not to shirk the fact that a considerable range of
social pathologies are significantly correlated with divorce
and illegitimacy.
Given these problems, the great question
facing this generation of Americans is: why does our society
seem to have so much difficulty sustaining stable family
life? Certainly, it is easy to see that there are objective
conditions that make some form of marital breakdown
understandable, as cases of spousal abuse demonstrate.
There are many other, less dramatic, forms of ill-treatment of
spouses by each other. And there is the simple fact of the
emergence of “irreconcilable differences” or merely “growing
apart” (especially when life expectancy increases
dramatically).
And yet, presumably, human nature has not
changed so drastically in recent eras--many of these factors
must have been present throughout human history. There must
be other factors, then, that account for the relative increase
of divorce and illegitimacy . Some of them include the
following. First, divorce feeds on itself, since it raises
the question, for the children of divorce, whether permanent
human commitments are really possible. Second, marriage has
lost the support of its close tie to sex. When the powerful
urges of sex are confined by prevailing social norms to
marriage, they provide a strong auxiliary support. When sex
is readily available outside marriage (without social
sanctions), as it has become, there is both less incentive to
enter into marriage and more temptations to leave it
(especially for men). Third, more modern and relativist
ethical notions--Alan Wolfe’s formulation of Americans’ new
Eleventh Commandment, “Thou shalt not be judgmental”--may
be used to justify extra-marital sex and childbearing, on one
hand, and exiting from unsatisfactory marriages, on the
other. A particularly influential form of this ethic has been
the liberationist or autonomist ethos associated with more
recent forms of liberalism, particularly since the 1960s.
Fourth, liberalism’s tendency to ground human relationships in
voluntary contracts rather than status may result in a
diminished sense of certain fundamental duties that arise from
nature rather than human will, among them the duties of
parenthood. Fifth, materialism and affluence may incline
people to resolve difficulties by moving out of an unpleasant
situation rather than remaining in it and working through
difficulties. Sixth, paradoxically, modern notions of romantic
love may create expectations about marriage that actual human
beings often are unable to meet.
But perhaps we should ask, not just “why
unstable family life?”, but also “how was stable family life
ever possible?” There are plenty of ordinary human
inclinations and objective circumstances to explain why two
people would not want to live with each other for a lifetime.
We have to recognize first, of course, that there was no
“golden age” of marriage, in which family life was basically
trouble-free. The relatively more “stable” family life of the
past had its own unhappy share of pains and difficulties,
infidelities and desertion. But family life was more stable
partly because of the strong social supports that helped to
resist or overcome the more centrifugal tendencies in
marriage. Among these, religion--in America, specifically
Christianity--was among the foremost. We might expect, then,
a decline in marital and family stability from the facts that
a) religion exercises less power over the everyday lives of
many people in our society, and b) many religious communities
have come to accommodate more modern (and looser) conceptions
of family life and divorce. The largely religious ideals of
the past, moreover, were typically supported both by the power
of social conventions and of law.
Finally, as a transition to the next topic,
we can point out that family instability is partly caused by
the fact that women who did not have the economic resources to
live independently of a male wage earner, are now much more
able to do so, either through their own earnings, or through
the substitute provider, the state. Alternative sources of
support have therefore made it possible for women to leave
difficult or unsatisfying marriages to which they once would
have been tied by economic necessity.
That the nuclear family has become less
stable is generally (though not universally) accepted.
Increasingly, social scientists are acknowledging a variety of
detrimental consequences correlated with family instability.
Most people probably would agree that greater stability of
family life is desirable. On the question of whether this
instability is basically a necessary evil, however, or
basically an evil to be rectified, there is, unfortunately,
little agreement.
The Role of Women in Society
There is widespread agreement today that
changes of this century regarding gender have been in many
ways a great victory for justice: the past confinement of
women to the private sphere of the home by legal and social
pressures unjustly denied many women opportunities that should
have been available to them.
The opening up to women of education, employment outside the
home, and participation in public life is acknowledged as a
good by virtually everyone in our society.
And yet these genuine advances are not
without some more questionable consequences as well. One may
view them somewhat as the protagonist of Saul Bellow’s Mr.
Sammler’s Planet looks at post-Enlightenment developments:
. . . it has only been in the last two
centuries that the majority of people in civilized countries
have claimed the privilege of being individuals. Formerly
they were slave, peasant, laborer, even artisan, but not
person. It is clear that this revolution, a triumph for
justice in many ways--slaves should be free, killing toil
should end, the soul should have liberty--has also introduced
new kinds of grief and misery, and so far, on the broadest
scale, it has not been altogether a success.
We are especially struggling for answers as
to who “foots the bill” for the liberation of women from those
unjust traditional constraints, and so far the short-term
answers are unsatisfying.
Children, in particular, it seems, pay a
large part of the price, despite efforts of social scientists
to discount the significance of altering traditional
child-care arrangements. The reallocation of resources in the
family, especially the precious resource of time, away from
children to other activities (most notably, work outside the
home) has come at the expense of children.
Another group that has suffered from this
change is those women who choose to stay at home full-time
with their children--either during childbearing years, or
permanently--and whose work is generally not accorded high
status in our society. What conclusions, after all, should we
draw from social studies that claim to prove that full-time
mothering has no significant benefits, relative to the work of
low-paid “substitutes” in day-care centers? And what is the
inevitable effect on school girls of anti-stereotype-programs
that encourage them to be more than “just” mothers and
“homemakers”? Under these circumstances, college women today
who desire to have children and be full-time homemakers (at
least for part of their lives) must hesitate to admit to this
goal, for fear of the subtle or not-so-subtle contempt it
would engender in their peers and in society at large.
Likewise, mothers who arrange their
employment around (subordinate it to) child-raising
responsibilities not only forego career advancement and higher
salaries in doing so, but also find this price exacerbated by
the lower status society often accords them. For many women,
the difficulties of combining outside-the-home employment and
the responsibilities of child-raising can make the once
supposedly glorious “having it all” a burdensome “having to do
everything for everybody”.
Of course, an alternative proposal is that
men foot the bill, by making a more balanced contribution to
the home and the raising of children.
It is clear, I think, that paternal involvement in the home is
essential.
What is less clear is what form that involvement ought to
take, and whether the contributions of men and women to the
home are, or should be, more or less interchangeable. Whatever
the particular balance between work and family for husband and
wife in a given marriage--different couples will certainly
work out different ways of such balancing--should we expect or
desire a significant movement away from our current situation,
in which mothers, in the vast majority of cases, still
undertake the primary responsibility (in terms of time, and
relative to employment outside the home) for childraising?
The evidence so far suggests to me the
following: a) most men are unwilling to undertake roles in the
home that would make it impossible for them to work full-time,
b) men in general are not as capable as women in the work of
raising young children; c) the realities of pregnancy,
childbearing, and nursing may not demand, but do support
arrangements by which mothers will undertake the primary role
in childraising; d) what men are capable of doing in the home
is not enough to make it possible for most women to meet
child-raising responsibilities without having to limit or
subordinate the demands of other employment, at certain times;
and e) most women, despite feminist objections, recognize all
of the above and are quite willing to pay the price for
assuming the lead in raising children, accepting certain
limitations in other areas (work outside the home)--but they
also believe that society artificially and unnecessarily
increases that price.
Of course, there are various experiments
afoot to deal with this difficult issue--various kinds of
accommodation in the workplace, and ways of doing work in the
home--and many women (and men) make extraordinary efforts to
meet the various responsibilities of work and family that they
have undertaken. But it remains to be seen how successful
these efforts will be in reconciling the needs and desires of
women and men with the best interests of children.
Education and Culture
Perhaps because “equality of opportunity”
is the linchpin connecting democracy’s two most fundamental
principles, freedom and equality, education has always been a
central concern of Americans. That each person should have the
opportunity to receive a basic education is one point on which
there is consensus in our society. But education has also
become a central battleground of various social forces in the
nation. While an important part of education--especially the
basic skills of “reading, writing, and arithmetic”--is
relatively noncontroversial, there are other aspects of
education that guarantee controversy in a culturally
pluralistic society.
Elementary and secondary public schools
originated, in great measure, with a very public task: not
only providing basic skills, but also educating the citizenry
in the principles of republican government. Throughout
American history, the public schools have transmitted the
civil religion of the nation, with its “scriptures”
(Declaration and Constitution), its history, and its “saints”
(e.g., Washington and Lincoln). This role was thought to be
especially important in a nation of immigrants from
non-republican lands.
Recent divisions within the United States
on cultural issues have, unsurprisingly, been reflected in
debates about the content of education. When America was
largely a Protestant Christian nation, the existence within
schools of Christian practices (reflecting the practices of
local majorities) such as school prayer and Christian
teachings (e.g., the Ten Commandments) was commonplace and
uncontroversial. There was always the anomaly of Catholic
schools--which objected precisely to the Protestant character
of most public schools--but such schools were precisely that,
an anomaly. The post-Everson secularization of public
schools, especially the school prayer decisions of the early
1960s,
therefore came as something of a shock to many Protestants,
especially evangelicals and fundamentalists, and the issue of
religion and the public schools has been actively contested
throughout recent decades.
But the controversy has spread beyond
religion, because modern secular intellectuals often apply the
same corrosive analysis to traditional moral values, which are
often held similarly to offend proper “liberal neutrality.”
For example, in Board of Education v. Pico, the Supreme
Court ruled that local school boards may not remove books from
school libraries simply because they dislike the ideas
contained in those books and seek by their removal to
“prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion”.
Moreover, certain political theorists argue that it is
precisely the purpose of at least post-elementary schooling in
a liberal society to offer the individual student a wide range
of theoretical possibilities, which will necessarily entail
challenging the moral ideals of students’ families.
Add to this mix the increasing salience of topics such as sex
education and AIDs education, and the potential for
controversy obviously becomes very great.
A combination of dissatisfaction with
public school policy on religious and moral grounds, and a
sense that public schools have failed educationally (either
generally, or in certain places, such as major urban school
districts) has led to a growing movement--vociferously opposed
by teachers’ unions and religious separationist groups such as
the ACLU--for policies that facilitate school choice, such as
voucher programs and tuition tax credits. The upholding of
the constitutionality of such programs last year by the
Supreme Court simply clears the way for that battle to be
fought in legislatures. Education will therefore continue to
be a major public policy issue.
But “education” in a broader sense goes
beyond the classroom. One of the profound civilizational
changes in the twentieth century, especially in affluent
post-World War II nations, has been the extraordinary
expansion of “leisure” made possible by modern economies. A
forty-hour work week for many people leaves many hours of time
in which to pursue other activities.
Moreover, childbearing is typically confined to a more limited
range of life, due to decreased family size. And people are
living much longer beyond the time during which the care of
children consumes much of their activity.
Now, in principle, this additional leisure
time could be an extraordinary opportunity for intellectual
and moral development. One could hope that succeeding
generations take more and more advantage of leisure to develop
capacities that human beings in earlier ages had no
opportunities to develop, for example, intellectual and moral
development through reading “great books” and literature,
listening to and playing music, observing and engaging in
various fine arts.
Under the circumstances of expanded
“non-work” time, the importance of popular culture and of
“entertainment” has been greatly magnified. The media,
especially the visual media (movies and above all television),
have come to play an enormous role in many people’s lives.
This is not primarily because of any conscious attempt by
people in the media to persuade their viewers to think a
certain way (though there is a tendency for people in the
media to hold distinctive worldviews and these views do get
reflected in their productions).
The deeper effect is more indirect, a function less of “logic”
than of what might be called a “sociology of knowledge and
values.”
One example: prime-time television series
typically tell stories, and watching a television program is a
form of “entering” that story imaginatively. For at least a
short time, the “world” in which we live is the world
represented in that imaginative portrayal. What is “in” those
worlds is important--sex and violence, of course, but also
friendship, fear, insecurity, humor, and a multitude of other
things. At least as important, however, is what is not
in those worlds, either because it is difficult to portray, or
because its authors cannot, or do not think to, or choose not
to portray it (which, in turn, may be because of their own
preferences or because of what they believe to be the
preferences of their viewers). Some aspects of human life,
not surprisingly, are therefore significantly
under-represented in the worlds fashioned by the media. These
include: sex that is embedded in a context of marriage and
child-bearing; intimate prayer to God, the frustration,
tedium, and satisfaction of ordinary, unexciting, but
necessary work; the broad range (bell curve?) from ugliness to
beauty among human beings; the personal confrontation with the
fact of mortality.
In general, it seems fair to characterize
the content of popular culture as superficial. So much of the
leisure time that might have offered unparalleled
opportunities for intellectual and moral development seems
wasted on passive activities that are hard to view as
increasing the quality of human life.
Another, more extreme aspect of the search
for ways to fill leisure time is drugs. There has never been
a time in human history when human beings did not seek to deal
with stress or boredom by manipulating their consciousness
chemically. What is different now perhaps is that affluence
and time, and perhaps also spiritual and moral vacuums in
people’s lives, have expanded the range of opportunity for
such indulgence.
Should we be surprised at the low to
mediocre quality of most leisure-time activities in our
contemporary society? Classical political philosophers, after
all, would have noted that in democracies the “common
man”--with his very common desires--sets the tone. Is this
inevitable in a democracy, and should it therefore be
accepted? Or can democracy be “high-toned”, and, if so, how?
One of the striking aspects of cultural
life today is the fairly widespread faith--no less deep for
being often unnoticed--in the “cultural” invisible hand.
There is an alliance here between those on the right who have
a general faith in the market, with those on the left who have
traditionally shared a great faith at least in the
intellectual marketplace. There are occasional dissenters on
both the left and the right--e.g., cultural conservatives
hostile to markets in debased sex, and liberals and feminists
who would regulate the cultural marketplace on behalf of less
powerful or “marginalized” groups. But, given most Americans’
reluctance to support any form of government “censorship”, a
rather open cultural marketplace is what seems to remain.
In some cases these issues go beyond the
marketplace, when they involve government sponsorship of
cultural activities. For example, the National Endowment for
the Arts has come under political attack in Congress, due to
its funding of some controversial art and exhibitions (e.g., a
picture of a crucifix in urine). While few people would argue
that the government has an obligation to fund specific forms
of art, there are some who contend that, once government
offers sponsorship of cultural activities, it may not choose
to withhold funding from a particular activity because of its
ideological content.
This would seem to leave Congress simply with the general
decision about whether or not to fund art, while the specific
decisions about which art is to be funded would be left to
“peer review” within the arts community (or at least among the
elites who are dominant within it). The question here is
whether the determination of government arts funding by such
elites itself meets the criterion of “neutrality” on the basis
of which explicit government decisions about content are
considered legally dubious. That art elites can and do
consistently make “neutral” judgments apart from content seems
implausible.
Race
A central issue of American life from the
beginning, race has continued to be a source of cultural
divisions in the post-“civil rights revolution” era.
Conservatives, who were often reluctant to endorse government
(especially federal) intervention to promote racial equality
until the mid-1960s, generally consider racism to have been
defeated (despite lingering and ineradicable pockets of it),
and have embraced the standard of legal equality of
opportunity and “color-blindness”. Liberals tend to discount
advances in racial equality, believing that racism is still
powerful and pervasive, and that much more extensive
government intervention is necessary to rectify the effects of
past racial discrimination and to enforce true racial
equality.
The dominant contemporary issues are
affirmative action and multiculturalism. Conservatives
generally deplore the principle of race-based decision-making
in government (or even private) affirmative action plans,
which they consider unjust and likely to perpetuate racial
divisions and stereotyping.
They are optimistic that, at least in the long term,
race-neutral government policies and formal legal racial
equality will ensure equality of opportunity and guarantee
that people are treated on the basis of their individual
qualities rather than their race.
Liberals view affirmative action as a
minimum requirement of justice to level a playing field
heavily tilted against traditionally disfavored racial
minorities, due to the effects of past discrimination and due
to subtle but still powerful racist attitudes today.
Moreover, according to some, only conscious and extensive
efforts to foster a multicultural society that celebrates
“difference” will be able to make inroads against these
attitudes. This may require the use of government power to
suppress public manifestations of disrespect for certain
groups, for example, prohibitions of “hate speech.”
Each side, in its own way, may represent a
kind of utopian thinking. The idea of multicultural diversity
as its own end, a good in itself, can only subsist in
the absence of a candid evaluation of different cultures,
since all human cultures are a mixture of good and bad, more
and less attractive elements. Western culture has a monopoly
neither on human cruelty, greed, and rapacity, nor on the
good, the true, and the beautiful. But the need to have
standards by which to evaluate the better or worse aspects of
all cultures implies some universal standards that transcend
particular cultures--standards difficult (but perhaps not
impossible) to come by, in a pluralistic society.
On the other hand, is it possible to
achieve a pure, cosmopolitan color-blindness? Individuals
need to be judged on their own merits, certainly, but can race
be filtered out of human consciousness so easily? Does
political prudence require ignoring racial differences under
all circumstances?
It may be that liberalism (including what
Americans call “conservatism”) of its nature has difficulty
with certain kinds of particularism, and race and nationality
are among these, since they seem fundamentally “irrational”,
irrelevant to rational perceptions and evaluations of people
and actions. But particular identities may, from another
perspective, be more rational than liberals think, since they
often provide some of the most powerful and satisfying forms
of human solidarity and community. (One only has to think of
sports teams and the loyalties they can engender.). How to
permit these particular identities (often a melange of race,
nationality, and culture) to flourish, without permitting them
to be the ground of unjust discrimination, is a perennial,
vexing question of political life.
Religion
In the ancient world, the problem of church
and state was unknown, though the problem of law and religious
conscience was not (as we see in Sophocles’ Antigone).
With the coming of Christianity, and the distinction between
an immanent political order and a transcendent spiritual
order, the relationship between Church and State became a
central question of Western political theory and practice.
America, in fact, was in some measure born
out of European church-state problems, since many of the early
settlers came precisely to find an opportunity to practice
their religious faiths. In early colonial times, however,
this did not necessarily mean that they sought “religious
liberty” in the form we think of it today. A colonial
“Christian commonwealth” did not necessarily accord a broad
freedom of worship to other Christian denominations. Yet by
the time of the American founding religious liberty had
broadened considerably, and the main political divisions
regarded religious establishments in the states. At the same
time, there was general agreement that Americans were “a
religious people whose institutions presupposed a Supreme
Being”--manifested,
most obviously, in the Declaration of Independence’s reference
to Creator-bestowed natural rights, and in the emphasis on the
importance of “religion and morality” in Washington’s Farewell
Address (echoing the Northwest Ordinance and various state
constitutions).
The original understanding of church and
state in the United States grew out of a particular
society--one that was “sociologically” and “intellectually”
(Protestant) Christian. This considerably narrowed the range
of unresolvable tensions (though without completely resolving
them),
and made it possible, on some accounts (notably Alexis de
Tocqueville’s), to derive considerable political benefits from
religion, while maintaining a general separation of church and
state. For example, Tocqueville noted that religion (by which
he meant the Christian religious groups in early nineteenth
century America) had the benefits of countering the typical
modern democratic tendencies toward individualism and
excessive emphasis on physical well-being, which were
dangerous both to the political community and to human beings
themselves.
The twentieth century has seen (besides an
increasing number of “unchurched” but generically Christian
Americans) increasing numbers of non-Christians, partly
through the increase of religious minorities such as Muslims,
and greater attention to the heretofore “invisible” Indians,
but more importantly perhaps, through the growing numbers of
agnostics and atheists, especially among intellectual elites.
The Supreme Court has undertaken the task of fashioning a new
First Amendment for this more diverse society, but hardly
anyone considers it to have done this satisfactorily.
The Supreme Court began its attempted
“adaptation” of the First Amendment to the new religious
sociology of the mid-twentieth century with Everson v.
Board of Education in 1947.
A key step in this case was mandating not only federal
neutrality among different religions (the command of the
original First Amendment)
but also federal and state government neutrality between
religion and non-religion. In its attempt to achieve this
illusory goal of neutrality, the Court has lurched back and
forth between more separationist and more accommodationist
readings of the Amendment. Its secularizing decisions
(especially beginning with the school prayer decisions of the
1960s)--together with decisions in some other areas
undermining traditional morality--were
said by some to have “privatized” religion and to have created
a “naked public square”
At the same time, the expansion of the public
square--especially the welfare state--in modern America, had
the effect of confining religion to a smaller and smaller
private sphere, since government carried the principle of
church-state separation with it as it expanded dramatically
throughout the century.
One of the important effects of this
secularizing process was to mobilize heretofore less
politically engaged evangelical and fundamentalist
Protestants.
This mobilization of “the Religious Right”, in turn, further
stimulated elite fears of Christian domestic jihads
(fears that gradually seeped into other strata of American
society).
While the Court more recently has been less
separationist in a number of areas,
at the more theoretical level, it is striking that the Court
has tended to minimize the distinctive character of religion,
viewing it more and more as one subcategory of “deeply held
opinions”
or of “speech.”
Religious freedom has gone from being singled out by the
Constitution for special protection to being a rather
indistinct element in a more broadly defined liberty.
The current conundrum facing any public
philosophy is whether (and how) it is possible to guarantee a
broad religious liberty (which, especially in a pluralistic
society, involves both free exercise and non-establishment of
religion) without in some sense advancing the particular
religious view of secularism. Do modern fears (especially
among elites) of manifestations of religion in the public
square preclude any non-sectarian natural theology being an
essential part of the public philosophy? Or are we still “a
religious people whose institutions presuppose a Supreme
Being” and can that fact be publicly recognized--and can
religion be generously accommodated--without endangering
religious liberty and the political equality of citizens of
all religious beliefs?
Citizenship and Immigration
A combination of the foregoing
considerations hooks up with another major contemporary policy
question, namely, citizenship and immigration. Culture, race,
and religion are sources of “difference” in society, and can
be viewed as fostering a diversity that enriches our nation.
Indeed, there is a significant tradition in America of looking
to immigration as a source of great benefits, with its
contributions to the American “melting pot”. This diversity
was possible, without undermining the core “unity” required
for “community”, because the United States was unusual in the
way it was founded on a certain set of ideas, especially the
principles of the Declaration of Independence and the
Constitution. In embracing those ideas, immigrants could
quickly become “Americans” in more than a formal sense.
In principle, unity based on ideas should
be able to transcend many differences. For example, race, by
itself, should be irrelevant with respect to those ideas. But
culture and religion are categories that involve precisely
ideas and ways of life that reflect underlying ideas. Earlier
immigration came primarily from Europe, and immigrants thus
shared the heritage of “Western civilization” with their new
fellow citizens, which helped to mitigate the tensions that
arose from various differences, e.g., language, and in many
cases the difference between American Protestant Christianity
and immigrants’ Catholicism.
Questions arise today from two sides.
Either of these, by itself, would be much more limited in its
consequences, but taken together they magnify potential
concerns. First, immigrants today come from a very wide range
of cultures, many of them involving cultural differences
broader than those present in earlier waves of immigration.
For example, the proportion of European immigrants has
declined, and the proportion of immigrants from non-European
nations and cultures (e.g., Asia and the Middle East) has
increased.
Second, and more importantly, there has
been a significant loss of consensus within our nation about
precisely the ideas that determine what it means to be an
“American”. If the core unity of the nation has been
maintained by educating new Americans in the principles of our
regime (form of government, broadly speaking), what is the
likely result of increasing division within America over the
meaning of those principles? How much “unity” is necessary to
sustain the political community, and how is that unity to be
secured? Under what circumstances (if any) would immigration
jeopardize that unity, and what reasonable measures
(educational and otherwise) might harmonize a generous policy
on immigration with the requirements of national unity?
Political Economy
I end this discussion of substantive issues
by mentioning only briefly the area that has probably been the
most prolific source of public policy questions in American
history.
Questions in this area include the balance
between work and family, kinds and conditions and amount of
work and the personal development of the worker, the relations
between employers and employees (or between owners, managers,
and workers), worker participation in ownership and direction
and profits of enterprises, the availability of employment for
all workers (and the availability of enough workers for jobs),
the roles of businesses, unions, government, and individuals
in worker (re-)training and education programs, especially in
the context of rapid reallocation of resources in a modern
market economy, wages and benefits (for both full-time and
part-time workers), entrepreneurial freedom and the
appropriate extent of government business regulation, the
impact of various forms and amounts of taxation, and the
adequacy of private and public provision for unemployment,
illness, and old age. (Moreover, these could be multiplied by
attention to numerous and complex questions regarding the
international economy.)
In the late 20th century, the
salience of political economy issues was muted somewhat by the
fact that the United States was in a period of extraordinary
economic growth, frequently confounding forecasters’
predictions of slowdowns. Recent events demonstrate that it
will not always be this way, of course, and in more depressed
economic circumstances these issues will likely become greater
sources of dispute.
Structural Political Issues
In the preceding sections, I have focused
on substantive issues of public philosophy. It is also
important to note, however, that there are other, structural
political and procedural questions intertwined with the
substantive ones
The Judiciary in the Culture Wars
One of the most notable is the question of
the role of the judiciary in American political and social
life. Cultural liberalism is strong among elites, and judges
have been among the most effective implementors of elite
intellectual and cultural values. This is most obviously true
of the Warren Court, in its decisions on religion, obscenity,
and privacy.
But the subsequent Burger and Rehnquist Courts, despite their
conservatism relative to the Warren Court in some areas, have
also shared elite cultural values in many areas. The Burger
Court--though comprised largely of Republican
appointees--transformed gender equal protection law,
dramatically expanded privacy rights, and maintained a high
wall of separation in public schools while limiting the
permissibility of public support for parochial schools. The
Rehnquist Court backed off overruling, and then reaffirmed the
central holding of, Roe v. Wade, held that nude dancing
is entitled to some First Amendment protection, and (without
overruling Bowers v Hardwick, a Burger Court decision
that upheld the power of states to prohibit homosexual sodomy)
overturned a state constitutional amendment designed to
prohibit nondiscrimination laws for homosexuals.
In the face of these judicial
interventions, Congress and the President did relatively
little. In fact, it was not clear how robust was their sense
that they had any right to oppose such judicial
actions. Judicial review was certainly important in early
American history, but at that time there was still widespread
recognition that constitutional issues were not the sole
preserve of judges, as Lincoln’s response to the Dred Scott
decision made clear.
By the end of the twentieth century, however, judicial power
was so identified with constitutional questions that
Attorney-General Edwin Meese’s repetition of Lincoln’s
argument caused something of a furor.
The Supreme Court did, unanimously, reject
a call to strike down a state ban on physician-assisted
suicide--but only after lower federal courts upheld such a
right.
Moreover, the Court seemed to indicate that at least some
aspects of this issue might be revisited in the future.
It is worth noting, too, the “asymmetry” of
modern Supreme Court decisions on cultural issues. The Court
has served as an engine of liberal social reform in some
areas, e.g., obscenity, privacy rights--especially
abortion--and (with Romer v. Evans) homosexual rights.
In other areas, the Court has rejected the invitation to
advance such causes, e.g., homosexual sodomy rights in
Bowers, euthanasia. But an examination of the opinions
shows that there is no debate between “cultural liberals” and
“cultural conservatives” on the Supreme Court. The debate is
between “cultural liberals” and “anti-judicial activists”.
For example, there has never been a Supreme Court “pro-life”
opinion, though a claim that laws tolerating abortion violate
the equal protection clause is more plausible than a claim
that laws prohibiting abortion violate the due process
clause. Perhaps the justices opposed to a constitutional
right to abortion are correct in basing their opposition on
“anti-judicial activist” grounds, and in refusing to overturn
abortion laws on equal protection grounds.
Nonetheless, this asymmetry does place cultural conservatives
are a great disadvantage, since the educative effects of
Supreme Court opinions work in favor of culturally liberal
opinions. For example, if all the Court could offer in
Bowers v. Hardwick as a reason sustaining sodomy laws was
something along the lines of “if the people of Georgia want to
do it, the Constitution doesn’t tell them they can’t”, then
should we be surprised if Bowers is followed by
Romer v. Evans, which (wrongly) treats the position
opposed to sexual orientation nondiscrimination laws as if it
were based on a mere irrational animus?
Cultural conservatives thus continuously
labor under the burden of never knowing whether their
laborious efforts in the political process to achieve certain
goals, even when successful, will survive Court challenge.
For example, Planned Parenthood v. Casey “lowered the
bar” for abortion regulation somewhat, by establishing an
“undue burden” test.
Abortion opponents also concentrated their efforts on limited
forms of regulation, such as prohibitions of a particularly
gruesome kind of late-term abortion (so-called partial-birth
abortions). But even these limited prohibitions, evaluated
under a less restrictive test, have been struck down by
unsympathetic courts, including finally the Supreme Court.
How far the Court will go in asserting the
power to resolve national issues–especially “culture war”
issues– remains to be seen.
The Marketplace(s) and “Centers of
Private Power”
On both the right and the left, there are
frequently suspicions that major decisions with society-wide
impact are controlled by unaccountable institutions. This is
accomplished either through behind-the-scenes power within
political institutions, or through a power to shape public
opinion and to manipulate it to obtain private objectives.
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