The Dissent of the Governed

Order The Dissent of the Governed


As a legal theorist, as a citizen of a democracy, and as a Christian, I believe, deeply, in dissent, not simply as a right, but often as a responsibility. Our moral progress demands richer understandings of the world, and nobody has yet invented a better or more democratic source of those understandings than dialogue among free and equal citizens. Dialogue suggests differences of opinion, when an individual or a group differs with the opinion of the majority as reflected in law or custom, the opportunity for dissent presents itself. As the reader will quickly discover, I believe that dialogue is what the Declaration of Independence is all about, and that the refusal to engage in dialogue - most particularly when it is the state that does the refusing - is itself a manifest injustice that demands correction.

America, however, is dying from a refusal to engage in dialogue. I do not mean that nobody speaks - everybody speaks - but rather that nobody listens. In particular, the instrumentalities of government, especially at the national level, seem to most Americans woefully inaccessible. Both our national history and our national present teach the same lesson: people who hold power whatever their politics, will not listen to those who disagree with them unless they are forced to. These lectures explore that aspect of the American political character, with special reference to religion, trying to illustrate it in unexpected places, as well as to help us find a path toward ameliorating it before it destroys our democracy. (pages ix-x)

The force of a law depends on the extent of its justice. - St. Thomas Aquinas (page xiii)

The nation has a long and unhealthy tradition of using its laws of general application to try to remake self-constituted communities of meaning in the model preferred by a larger culture. The delicate minuet between religious communities and objectionable rules of the secular political sovereign has been well canvassed elsewhere, but nonetheless deserves brief discussion here.

Consider: no question is as important to human existence as whether God exists, so, naturally, philosophy ignores it. Law, however, answers it, and the answer the law gives is often No. The famous case is Reynolds v. United States (1879), in which the Mormons discovered that their constitutional right to freedom of religion did not extend to the practice of polygamy - in short, that they were not free, within the confines even of their own place of worship, to marry whomsoever they might choose. (The statute also took away the church's property and even its incorporation.) A lineal descendent of Reynolds, decided a bit more than a century later, is Employment Division v. Smith (1990), in which adherents of the Native American Church discovered that their constitutional right to freedom of religion did not extend to the use of peyote - in short, that they were not free, within the confines even of their own places of worship, to ingest whatsoever they might choose. The cases (there are literally scores of others) allow the state to put the members of the religious communities in question to a simple choice: follow the law or follow your God. Because the First Amendment expressly protects religious freedom, it is difficult to defend the judicial permission for this choice except on an argument that runs something like this: it doesn't matter if the secular sovereign makes it difficult for you to practice your religion, because there are lots of other religions out there, and you can choose one of the others instead.

I emphasize the point because the reasoning in these cases may have theological as well as philosophical roots. The cases are linked by the nation's continuing fealty in its public law to a high-church Protestant version of the distinction between belief and action - a distinction that is fairly easy to draw in a society so dominated by high-church Protestant values that it rarely forces adherents of mainline Protestant denominations to make a choice between the two. (Even when it does, it doesn't. High-church Protestants avoided their own Smith case during Prohibition, when the Volstead Act, forced on them by their low-church brethren, made an explicit exception for the religious use of wine, which most high-church Protestants indulge and most low-church Protestants do not.) In this common and quite narrow version of the belief/action distinction, religionists are free to believe what they like, but have no rights to do anything in particular to follow their beliefs. The justification for this distinction as a rule of constitutional law was stated by Justice Antonin Scalia in his majority opinion in Smith:

It might fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weight the social importance of all laws against the centrality of all religious beliefs.

So if a religious belief happens to require a violation of secular law, the disobedient religionist who follows that belief loses. (pages 57-58)

... Perhaps the belief/action distinction is less a tenet of philosophy than a tenet of power: that is, those who control the apparatus of the secular sovereign will always insist upon it, and those who inhabit self-constituted communities that consider themselves outsiders will always deny it. One would then expect particular emphasis on the distinction as power is concentrated in a single sovereign and the battles for control of that single sovereign grow excessively bitter. Political science teaches that battles over the apparatus of state power are more bitter when more is at stake. (page 60)

In short, citizens who cite religious grounds when they defy the democratically enacted laws that apply to everybody else are not simply lawbreakers, although they obviously are that too; they are, in some peculiar sense, placing their will in opposition to the General Will (as Rousseau called it) and are therefore actively working against the sovereign. And if all of this sounds like the language of treason, the reason is that the ways the courts talk about traitors and the ways the courts talk about disobedients are, unfortunately, quite similar. (page 116)

Ideally, when the secular sovereign decides to try a citizen on a charge that amounts to serving a separate sovereign, the jury should be pressed toward the sobriety of democratic respect rather than the intoxicating fury of the witch-hunt. For just this reason, it is absolutely vital to the project of community preservation that the counsel for the accused be allowed to argue to the jury on the justice of the statute that the disobedient disobeyed. Once upon a time, for example in the John Peter Zenger case, the importance of allowing such arguments was well understood in American practice. Nowadays, unfortunately, the trend is very much in the other direction. Judges routinely forbid it. ...

... Nullification may be viewed as a response by one's fellow citizens to the dissenting petitions that, as we have seen, a true democracy must be willing to hear. Thus the tool of nullification is a necessary one, unless one presumes that a given state is more likely than a given jury to choose the correct moral answer. (pages 119-120)

At this point, I must once more repair to constitutionalism, for the temptation is surely to reply to my argument with the assertion that our system does not presume the absolute justice of the will of the sovereign. It is possible, after all, to appeal one's case to the constitutional courts. But the availability of judicial review creates only the illusion that the will of the secular sovereign is subject to challenge. Remember that the judges themselves, although they write as though it were not so, are functionaries of the secular sovereign. And when they cite the various clauses of the Constitution as justifications for their decisions, they are able to do so and be obeyed precisely because their claim is that they are enforcing the true will of the higher sovereign - the sovereign compact of We, the People, as represented in the Founding Document [The Declaration of Independence]. Indeed, the often oracular nature of the relationship of the Justices to the public probably reinforces, rather than ameliorating, the vision of a single and essentially omnipotent sovereign. (page 121)