I think the crucial question when you say, regarding the idea of “constitutional disobedience,” that “we should account for our use of it,” is the eternal “Whom do you mean by ‘we’?” Since political constitution is constitution of the collective, in debating the constitution we are debating possible answers to that question. For the purposes of this inquiry, if we mean “you, me, and the participants at this blog,” or, more broadly, “interested if mostly powerless people in general,” then the discussion is by definition unimportant. Whether we “should” or not is not a great matter, and these little or lesser “we”‘s are nothing except our freedom to play around with notions too big for us, with any regard for consequences seeming quite pretentious. If, however, we are or imagine ourselves to be in contention with the greater we; if, even if we know ourselves as the lesser we, we presume that we should speak as though we are or might be of relevance to the greater we; or if we at all suspect that we might become of relevance to the greater we; if we think we should remain conscious of that risk however small, then there might be problems for little-us to consider.
I have not read Seidman’s book, but it appears that his argument glosses over the actual and necessary workings of the Tinkerbell principle in the functioning of mass democracy: democracy being a magical entity that lives exclusively because we believe in it and so signify with our sufficiently enthusiastic applause, because enough of us in the audience enough believe our belief matters when it’s time to raise the fairy up. Even if Seidman is right that we need to disobey the Constitution and treat it as poetry or as something like poetry, any significantly broad acceptance of the notion that we could and should do so, along with the recognition that what we were doing was that, would ruin it even as poetry or as something like poetry. It would become a dead letter, the epic of a vanished tribe, or, in terms I consider more on point, the myth of a dead religion.
The American civic religion, the same civic religion that worships an entity called the People, in singular form the Popular Sovereign, capable of “ordain”-ing a Constitution, married to Liberty, who delivers “blessings,” both of them essential beings of a providential destiny worthy of “supreme sacrifice,” is already, according to the letter of the law or at least its preamble, an “establishment.” The holiness of the People is shown among other things by its or our power over religious matters: The People, though not Congress, are, according to a group of men speaking in the name of the People, fully able to make law “respecting an establishment of religion,” including by “prohibiting” some “free exercise thereof,” as for instance in the very law containing those phrases. The reason that there can be no statutory “establishment” of “religion” is that the prior and fundamental constitutional “establishment” of a mass liberal democratic order, or “Order,” already occupies the one and only place for such establishment, with the “No Religious Test” clause the primary test of that established secular (quasi-anti) religion. The First Amendment would more accurately read “make no law respecting the establishment of another religion” – a religion other than the one whose rites and concepts are elaborated in the document – but such a statement would have shocked the religious sensibilities of the time and will still confuse many or most of us today; would have been rightly understood as a fundamental derogation and deprecation of (other) religion(s); and would, in short, have opened up the Pandora’s Box or, in homelier language, the Can of Worms, the Box or Can that we are at this moment also picking up and shaking or trying to peer into.
Thoughtful dogmatists of the civic religion, typically its lawyer-priests and pre-eminently its arch-judges and most learned scholars, pursue as their highest calling the detection and elimination of blasphemies and other depraved acts and statements seeming to threaten the core of the belief and its institutionalized Order. These efforts include the zealous rooting out of competing expressions of faith, so that the sacred essence of essential non-sacrality can be protected. What is most important is that the effort is made, and with the highest seriousness, but what is equally important is that it must never succeed more than symbolically or partially, since its complete triumph would, or perhaps will because it someday must, be its complete undoing.
In the extended, indefinite if not eternal meantime, if we accept what is generally done in politics, if what has been done for us or in our name has been proven in concrete fact acceptable to us, then it is democratic concretely: It is democratic in the same sense according to which it is understood, as has long been understood and as has always been inherently true2, that all societies are, finally, democratic and representative: They represent the will of the preponderant mass of the people as it or they or we actually are. The people as we are actually are may not necessarily be what we say we are or what we say we would like us to be. Our actual will may not be what the people or a majority of persons – if consulted when, if ever, sober, thoughtful, well-informed, and unafraid – might say it is. The notion is commemorated in the familiar saying, often attributed to Lincoln but originating in a comment by the arch-conservative restorationist-monarchist Joseph de Maistre, about every nation getting the government it deserves.3 We may think we deserve better, we may think that thinking we deserve better is necessary to getting the better, or we may think that thinking we deserve better is why we end up getting worse and deserving worse: Each of these and other permutations of the idea corresponds to existing and operative political attitudes and orientations. The complex resultant will be our just un-just deserts.
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Previous exchange under Likko, “Standing for Silence,” Not a Potted Plant blog, League of Ordinary Gentlemen, May 2, 2013:
CK MacLeod May 3, 2013 at 6:58 am: The law fails the strict tests, but it reflects more on the arbitrariness of the some aspects of our civic religion and the infallibility of the Supreme Court as mystical oracle of the People, since it’s just as clear that the law does not really violate the 1st Amendment as written and ratified. The not always consistently expressed reticence of some of the Founders about religious expressions or recognitions in relation to a pure concept of the state is a different matter than what they or “we” managed to put together in the Constitution and a range of laws from then to now. Doesn’t the recognition of oaths – especially utilization of the words “so help me God” in oaths of office and for other important purposes, next to an option of affirmation – already represent a widespread recognition of religion as old as the Constitution, and isn’t it as much an “endorsement” of religion, and a much more practical and important one, than a National Day of Prayer that likewise includes an option, in this instance probably utilized by the great majority of Americans, to ignore the whole thing?
Michael Drew May 3, 2013 at 9:03 am: I don’t agree that it is so clear that the First and Fourteenth Amendments don’t prohibit these things, but I do agree that the much more routine practices you mention would seem to violate those prohibitions (in particular, the endorsement test, as Burt lays it out) just as much as this law does. Opening each session (day?) of Congress with a prayer; having the routine oath in court be to swear to tell the truth “so help me God,” etc. “In God We Trust.” These all seem just as problematic to me. I don’t think Burt is right in suggesting that things get more problematic whenever the president accords himself to this particular law (besides which, it;s on the books 24/7/365 in any case).
To say that the rest of that is okay – or even just not to raise similar objections to all those similarly proscribed (under the arguments used to raise the objection Burt raises here) practices – but then to raise an objection to this particular event each year is, to my way of looking, an example of accepting the idea that constitutional disobedience is, in practice, to a large degree how we make this whole merry-go-round go round in this country. We can’t both rail against that idea and make use of it as a way to make getting along a little (or a lot) easier (or just possible). We should account for our use of it, and be receptive to constructive insights of those who make positive attempts to understand and reckon with the way it shapes our society politically and legally.
- …”long” meaning at least since Aristotle, “always” meaning “for all human societies of all shapes and sizes.” [↩]
- “Toute nation a le gouvernement qu’elle mérite…” [↩]