Tocqueville Was Right

At Law & Liberty today, I have an essay on that recent Wall Street Journal poll on American values. The poll suggests that Americans are checking out in large numbers. Compared to 25 years ago, many fewer of us today claim that “patriotism,” “community involvement,” even “tolerance” are very important to us.

There are some methodological questions about the poll–including a very low response rate. But the poll tacks with oft-observed trends in American life, especially the decline of civic associations. In my essay, I argue that all this shows that Tocqueville was right in predicting what would happen if America ever lost its mediating institutions:

The shift in values that the Journal survey reflects will not surprise anyone who has read Tocqueville. In Democracy in America, he described the propensity democratic societies have to “individualism,” which he defined as the tendency to detach oneself from the affairs of the wider society. Unlike aristocracies, he argued, which have status hierarchies that naturally encourage deference, democracies accustom each person to think of himself as the equal of everyone else—not only in terms of political citizenship, but moral judgment as well. Because everyone is equal, there is no reason to defer to received wisdom or traditional communal values. In deciding how to live, each person believes he must rely on his own judgment and look out for his own interests. Over time, Tocqueville wrote, this “sentiment disposes each citizen to isolate himself from the mass of those like him and to withdraw to one side with his family and his friends, so that after having thus created a little society for his own use, he willingly abandons society at large to itself.”

Tocqueville believed that the tendency to individualism created the potential for two sorts of tyranny. The first was state oppression. The despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to the concerns of others, so that the state can easily divide and dominate them all. The second was the tyranny of public opinion. Socially isolated individuals are no match for the pressure of majority viewpoints, which, like state oppression, can squelch free thought. Indeed, he observed that egalitarian and individualistic America was, paradoxically, rather conformist: “I do not know of any country, where, in general, less independence of mind and genuine freedom of discussion reign than in America.”

Tocqueville famously argued that the United States overcame the dangers of destructive individualism through voluntary associations, including churches, which encouraged Americans to look beyond themselves and cooperate in common enterprises. They taught habits of fellowship and reciprocity. Importantly, they worked to check the tyranny of the majority by giving people a sense of shared identity beyond citizenship. Collections of like-minded people stand a much better chance than isolated individuals of resisting both state oppression and the pressure of public opinion.

Last week’s poll suggests what happens when mediating institutions weaken and disappear. As Tocqueville predicted, people lose interest in the wider community and focus more and more on their own projects. They “withdraw to one side” and “willingly abandon society at large to itself.” This can help explain why Americans decreasingly value tolerance and increasingly value money. Working in a joint enterprise teaches people to overlook personal differences to achieve a common goal; it trains us to forbear and forgive. Tolerance is unnecessary in a society in which everyone bowls alone. And money allows one to fulfill one’s desires without relying on the cooperation and approval of others.

You can read the whole essay here.

Mere Natural Law

A new book by Center friend and and seminal figure in the political theory of the Constitution, Professor Hadley Arkes. Professor Arkes has been pressing the case against originalism and for a natural law constitutionalism for many years, in many fora. This is likely to be a useful and important statement of his collected views with, of course, a hat tip to C.S. Lewis in the title! I look forward to this one very much, and congratulations to Hadley! The book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Simon & Schuster).

In this profoundly important reassessment of constitutional interpretation, the eminent legal philosopher Hadley Arkes argues that “originalism” alone is an inadequate answer to judicial activism. Untethered from “mere Natural Law”—the moral principles knowable by all—our legal and constitutional system is doomed to incoherence.

The framers of the Constitution regarded the “self-evident” truths of the Natural Law as foundational. And yet in our own time, both liberals and conservatives insist that we must interpret the Constitution while ignoring its foundation.

Making the case anew for Natural Law, Arkes finds it not in theories hovering in the clouds or in benign platitudes (“be generous,” “be selfless”). He draws us back, rather, to the ground of Natural Law as the American Founders understood it, the anchoring truths of common sense—truths grasped at once by the ordinary man, unburdened by theories imbibed in college and law school.

When liberals discovered hitherto unknown rights in the “emanations” and “penumbras” of a “living constitution,” conservatives responded with an “originalism” that refuses to venture beyond the bare text. But in framing that text, the Founders appealed to moral principles that were there before the Constitution and would be there even if there were no Constitution. An originalism that is detached from those anchor – ing principles has strayed far from the original meaning of the Constitution. It is powerless, moreover, to resist the imposition of a perverse moral vision on our institutions and our lives.

Brilliant in its analysis, essential in its argument, Mere Natural Law is a must-read for everyone who cares about the Constitution, morality, and the rule of law.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Zinman v. Nova Southeastern University, Inc., the 11th Circuit dismissed a lawsuit by a Jewish law student challenging his school’s COVID mask mandates on religious grounds, stating that the mandates were neutral rules of general application and did not violate the First Amendment. The court also found that not wearing a mask did not constitute protected speech or expressive conduct.
  • The 9th Circuit heard argument in Hittle v. City of Stockton, a case involving former Fire Chief Ronald Hittle’s claims of religious discrimination and retaliation. A California federal district court had previously rejected Hittle’s claims. He was fired for attending a two-day religious “Global Leadership Summit” with three other city employees on city time and using a city vehicle.
  • In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, an Utah federal district court dismissed a class action lawsuit brought by former members of the LDS Church. The plaintiffs alleged fraudulent misrepresentation of the Church’s founding and the use of tithing money. The court ruled that the church autonomy doctrine protected the Church’s beliefs and teachings.
  • A Christian school in Maine filed suit against the state’s 2021 amendments to the Human Rights Act, which prevent the school from participating in the tuition payment program for students from districts without public high schools. The school argues that the requirement to comply with sexual orientation and gender identity non-discrimination provisions, as well as the prohibition on discriminating between religions infringe upon the Free Exercise, Free Speech, and Establishment Clauses. 
  • In In re Parents for Educational and Religious Liberty in Schools v. Young, a New York state trial court granted a partial victory to Orthodox Jewish day schools challenging the state’s “substantial equivalency” regulations. While the court rejected the schools’ constitutional challenges, it held that the Department of Education exceeded its authority by requiring parents to withdraw their children from non-compliant schools.
  • In Matter of Quagliata v New York City Police Department, a New York state trial court remanded a case where an administrative panel denied an NYPD officer a religious exemption from New York City’s COVID vaccine mandate. The court found the panel’s determination arbitrary and capricious, but did not rule on whether the officer’s request for an exemption based on religious doctrine was valid.