Liberal Nationalism
F.H.
Buckley
Abstract.
The recent Supreme Court decision in Saenz v. Roe struck down a
California welfare law that imposed residency requirements on recent arrivals
to the state. In vindicating the mobility rights of migrants, the Court
breathed new life into the Fourteenth Amendment=s Privileges or Immunities Clause. This Article suggests that, however
misconceived the decision might appear from the perspective of welfare law, it
usefully serves to promote a common American identity on which nationalist
sentiments crucially depend. The core nationalist symbol for Americans is the
idea of constitutionally-protected liberties that I call liberal nationalism
A
liberal nationalist understanding of the Privileges or Immunities Clause has
four implications for constitutional interpretation. First, it suggests that
the mobility rights the Saenz court upheld deserve the high degree of
protection they received in that case. Second, the argument from nationalism
offers an explanation for cases where the Supreme Court has been faulted for
failing to protect national symbols such as the flag. More than the flag,
constitutional liberties are a national symbol for Americans, and in upholding
the right to deface the flag on free speech grounds, the Court has merely
preferred one patriotic symbol to another. Third, a nationalist perspective
suggests that basic liberties should enjoy constitutional protection at the
national level and should not be entirely returned to the states. But for the
argument from nationalism, a strong case could be made for a very thin set of
national constitutional liberties, or even for state opt-out rights. Finally,
nationalist concerns suggest a need for caution before removing contentious
issues from political deliberation by turning them into constitutional rights.
In politics, there are only winners and losers, and there is no great shame in
being a loser; but in American constitutional law the losers can be faulted
for a want of loyalty to core American values, and this must weaken American
nationalism.
Professor,
George Mason University School of Law, 3401 N. Fairfax Dr., Arlington VA 2220.
fbuckley@gmu.edu, Tel. (703) 993-8028, Visiting Professor, Université Paris
II Panthéon-Assas, 35, ave. MacMahon, 75017 Paris Tel. 011 33 1 43 80 85 17.
Fax: 011 33 1 48 88 97 57. For their comments, I thank Neslon Lund and
participants at workshops at Boalt Hall School of Law, Paris II and
Aix-en-Provence.
June 5, 2000
Liberal Nationalism
F.H. Buckley
It is said that the United
States is more than a nation; it is an idea. But it is more than an idea; it
is a nation.
John O=Sullivan
Three years ago I argued that the
transfer of responsibilities for welfare law from federal to state governments
was benign, and that the provisions of the 1996 welfare reform law that did
this should be upheld.
In particular, I argued (with my co-author) that states should be permitted to
prescribe their own residency requirements, as these are a reasonable response
to the fear of welfare-motivated migration.
Last year, in Saenz v. Roe,
the Supreme Court struck down a California welfare law that imposed a
residency requirement on new arrivals. The California law was not draconian:
it simply placed a ceiling on welfare payments, which were not to exceed the
exit state=s
payout levels for the first twelve months after the recipient arrived in
California. Nevertheless, the Supreme Court set aside the law, and in doing so
breathed new life into the Fourteenth Amendment=s
Privileges or Immunities Clause, which had been eviscerated by the Slaughter-House
Cases in 1873.
After that case, the Clause essentially disappeared from U.S. constitutional
law. Now it is back, and might well assume a major importance in
constitutional deliberation. Beyond the narrow issues addressed in Saenz,
however, its content remains shrouded in mystery.
This Article suggests a novel
principle of constitutional interpretation that assists in explaining the Saenz
decision and the new understanding that must now be given to the Privileges or
Immunities Clause. In other countries, dynastic houses and cultural icons
serve as a focal point for nationalist or patriotic sentiments.
By contrast, America does entirely without the former and increasingly without
the latter. Nationalism is itself a rather suspect doctrine, Athe
political doctrine that dares not speak its name,@
in Michael Lind=s
ironic phrase. Yet Americans are highly patriotic,
and America is not without its national symbols. Of these, the most important
is perhaps the sense that America has a special mission to promote liberty.
Moreover, the American conception of freedom is highly legalistic, and focuses
upon the liberties guaranteed all Americans by the Constitution.
In particular, the freedoms promised by the Declaration of Independence and
guaranteed by the Bill of Rights have assumed the status of what historian
Pauline Maier calls AAmerican
Scripture.@
In what follows, I suggest that a
nationalist understanding of constitutional liberties might plausibly inform
the Privileges or Immunities Clause.
The Fourteenth Amendment was enacted after the Civil War, at a time when
patriotic sentiments were particularly strong, and a nationalist account of
the Privileges or Immunities Clause is consistent with the framers=
intentions. Saenz invites a reconsideration of the Clause and of the
manner in which liberal nationalism might shape the contours of American
constitutional law.
A nationalist understanding of
basic rights has four implications for constitutional interpretation. First,
it assists in understanding the special importance accorded to the migrant=s
mobility rights, as few things sap nationalist sentiments more than explicit
or implicit barriers to interstate travel. This was the narrow point on which
residency requirements for migrants were struck down in Saenz was
decided, and rightly so on nationalist theories.
Second, a nationalist theory of
constitutional liberties provides an explanation for cases where the Supreme
Court has been faulted for failing to protect national symbols such as the
flag. When courts uphold, on free speech grounds, the rights of protestors to
burn an American flag, they do not trivialize national symbol; instead, they
prefer an an abstract fundamental icon--the Bill of Rights--to a less central
symbol--the flag or the Pledge of Allegiance.
Third, a nationalist perspective
suggests that constitutional liberties deserve protection at the national
level and should not be turned over entirely to the states. This might seem a
point of largely theoretical importance. While the Supreme Court has shown
itself increasingly sympathetic to principles of federalism, the move to
devolution has come around the edges: core national rights do not seem
threatened. Nevertheless, theoretical arguments have practical bite when
counter-arguments are unpersuasive. For why should basic freedoms not be left
for state legislators and state constitutions? On models of competitive
federalism, state competition in the provision of basic rights would plausibly
result in a race to the top, won by the state with the most benign set of
laws. The suggestion may seem a radical one; but it is no more radical than
the Canadian constitution, which gives provinces the right to opt out of
Charter protections. This is not unlike how basic freedoms were understood for
most of American history, and was certainly how the Slaughter-House
court saw the matter.
What this analysis of
constitutional liberties misses, however, is the idea of nationalism, and the
costs that the abandonment of a national symbol would impose. The Fourteenth
Amendment=s
framers understood the appeal of nationalism, and campaigned for the Amendment=s
passage by emotional appeals to patriotism. If we are to interpret a
constitutional text by seeking the framers=
original intent, then the Privileges or Immunities Clause should not be seen
as an empty vessel. Instead, it should be read, along with its sister clause
establishing a national citizenship, as guaranteeing a set of core freedoms
that every American might enjoy. The Saenz decision therefore invites a
reconsideration of the Privileges or Immunities Clause that more faithfully
reflects the nationalism of its framers.
Fourth, a nationalist understanding
suggests a need for caution before turning contentious political questions
into constitutional rights. The border between the political and the
constitutional will depend on the respective competence of legislators and
courts. More than most countries, America withdraws issues from the political
arena and assigns them to the courts, and this might reasonably be thought to
tax the competence of the bench. In addition, taking a contentious issue from
the political arena and turning it into a constitutional right may weaken
nationalist sentiments. In politics there are winners and losers and there is
nothing particularly dishonorable about being a loser. In constitutional
debates, however, the loser=s
argument is fundamentally illegitimate. Because constitutional rights are a
national symbol, there is something un-American about taking the wrong side on
a constitutional question. This is something all sides should care about if
nationalism is valuable in itself.
I discuss the Saenz decision
in Part I. Part
II argues that basic rights are a national icon, and that nationalism played
an important role in the passage of the Privileges or Immunities Clause.
American nationalism is not a matter of ethnic or religious ties but of a
common allegiance to libertarian principles enshrined in a national
constitution. Part III argues that this vision of liberal nationalism is
worthy of support, and Part IV suggests how it might reshape our understanding
of constitutional law principles. I
conclude in Part V.
I.
The Saenz Case
California is one of the wealthiest
states in the Union. It is also one of the most generous, in its welfare
payouts. In recent decades, however, the state=s
rapid population growth has prompted fears of excessive sprawl, horrendous
commute times and general overcrowding, and this in turn has led many
Californians to wonder how the state might repel some migrants. For example,
popular sentiment that overcrowding was a problem and that it was partly
attributable to high welfare benefits sparked a grass roots rebellion in
1994--Proposition 187-- against welfare benefits to undocumented aliens.
Californians also worried about
welfare-induced migration from other states. In 1992 the state amended its Aid
for Families with Dependent Children (AFDC) legislation to limit new arrivals
to the welfare payouts they would have received in the state of their prior
residence. This is called a two-tier plan, for it discriminates between
new arrivals and long-time residents.
1.
Two-Tier Plans
Two-tier welfare programs are
motivated by a concern that high payouts will attract welfare migrants. There
is some empirical evidence and a great deal of anecdotal evidence of this.
Migrants are lured by a variety of locational advantages; good schools, low
crime, low taxes. It is not unreasonable to suppose that some migrants are
also attracted by the prospect of high welfare benefits, or repelled by low
welfare benefits. Over time, therefore, one might expect a general shift of
welfare recipients to Awelfare
magnet@
states.
Welfare migration might give rise
to a second form of strategic behavior, this time at the state and not the
individual level. A state that fears it might become a welfare magnet might
cut its welfare benefits to repel welfare-motivated migrants. Suppose that a
state determines its payout policies by first setting a per capita amount and
then paying this out to everyone who meets objective qualification standards.
In a world of closed borders, this might result in a relatively stable welfare
budget. With open borders, however, high payout states might find this policy
a budget-breaker. The welfare magnet that wants to maintain a constant total
budget in a world of open borders might then react in one of two ways. It
might either cut per capita benefits or limit availability through tougher
qualification requirements. In either case, the result might be what Harvard
economist Paul Peterson has labeled a Arace
to the bottom.@
As State A
cuts its welfare benefits to repel welfare-seekers from State
B, State
B might respond in kind,
leading to a downward spiral in which each state cuts its benefits down to
nothing in an effort to repel welfare migrants.
In a prior study my co-author and I
found no evidence that states cut welfare payouts as a response to higher
caseloads or increased migration.
As a theoretical matter, there is a possibility that fears of welfare
migration might prompt a state to trim its welfare budget. But even then,
two-tier welfare programs might address this problem. They permit a high
payout state to keep benefit levels up without the fear of becoming a welfare
magnet, since two-tier programs discourage welfare-motivated migration at the
individual level. When the misincentives at the state and individual levels
may be so easily addressed, the unproven concerns about a Arace
to the bottom@
would not appear troubling.
The California plan required the
approval of the federal government, and in due course the Bush administration
granted a waiver to allow it. However, the plan was almost immediately
enjoined by the District Court as an impermissible fetter on the individual=s
migration rights,
and this decision was affirmed by the Ninth Circuit Court of Appeals.
On appeal to the Supreme Court, the matter was vacated as unripe, since the
federal government (after the change in administration) had withdrawn its
waiver of the two-tier plan.
There things remained until
Congress enacted its welfare reform plan, the Personal Responsibility and Work
Opportunity Reconciliation Act, in 1996. The federal welfare reform act, a
major plank of the Congressional Republicans=
1994 Contract with America, replaced the AFDC with the Temporary Assistance to
Needy Families (TANF) program, and shifted welfare responsibilities from the
federal government to the states. The statute specifically authorized two-tier
plans along the lines of the 1992 California plan, dispensing with the need
for federal waivers. Accordingly, the state announced that it
would reinstitute its two-tier policies on April 1, 1997. On that day, the Saenz
plaintiffs filed their action, challenging the California plan and the portion
of the 1996 welfare reform act that authorized two-tier plans.
Most commentators expected the
California law to be upheld. After the 1996 federal welfare law, the Court
would have to override both state and federal legislation if it were to strike
down the two-tier plan. Instead, the California plan was set aside and the
federal legislation was found inoperative insofar as it authorized two-tier
plans. Writing for a seven-person majority, Justice Stevens held that two-tier
plans impermissibly fetter a Aright
to travel@
that, if not found in the text of the Constitution, was nevertheless embedded
in the Court=s
jurisprudence. Mobility rights were most clearly upheld in a prior two-tier
decision, Shapiro v. Thompson,
where migrants were denied all welfare benefits for a year after their
arrival in the new state. The two-tier plan in Saenz was not nearly so
drastic, but this was a distinction without a difference for a Court whose eye
was fixed on symbolism rather than economic substance.
Were
we concerned solely with actual deterrence to migration, we might be persuaded
that a partial withholding of benefits constitutes a lesser incursion on the
right to travel than an outright denial of all benefits.... But since the
right to travel embraces the citizen=s
right to be treated equally in her new State of residence, the discriminatory
classification is itself a penalty.
On
this reasoning, even a $1 discount for the new arrival imposes an
impermissible penalty by signaling that he is something less than a
first-class citizen.
B.
Mobility Rights
Mobility rights, in the Court=s
view, embrace three components, of which one only was affected by the
California plan. First, a state cannot prevent a citizen of one state from
entering its borders, as the federal government may do with respect to aliens
under the immigration power. Oklahoma may not set up border patrols to screen
migrants from Texas. Nor may a state criminalize the act of bringing
impecunious migrants across state lines.
Such laws erect a direct barrier to migration, however, and two-tier welfare
plans are nothing like that. Second, American citizens have the right Ato
be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second state.@
Yet as the migrants in Saenz sought to become permanent and not
temporary residents of California, this right was not implicated either.
Instead, the two-tier plan was struck down under the third branch of mobility
rights, the right of migrants who elect to become permanent residents Ato
be treated like other citizens@
of their new state.
The Court held that there is a
qualitative difference between the protection afforded under the second and
third branches of mobility rights. A state may discriminate between permanent
residents and temporary visitors, where there is a substantial basis for the
discrimination (such as reducing tuition for in-state students). But there is
no acceptable basis for discriminating amongst permanent residents on the
basis of how long they have resided in the state. APermissible
justifications for discrimination between residents and nonresidents are
simply inapplicable to a nonresidents=s
exercise of the right to move into another State and become a resident of that
State.@
For permanent residents, mobility rights are absolute.
Mobility rights are not explicitly
mentioned in the Constitution. Nevertheless, the first two heads of the right
to travel are uncontroversial. Since the immigration power is reserved to the
federal government, states lack the power to deny entry to migrants from other
states or to aliens lawfully admitted into the United States.
The mobility rights of temporary residents (the second component of the right
to travel) are also implicitly protected, through the Privileges and
Immunities clause of Article IV, '
2 of the Constitution:
The
Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several states.
How
this protects the non-resident visitor was considered in Paul v. Virginia in
1869:
It
was undoubtedly the object of the clause in question to place the citizens of
each State upon the same footing with citizens of other States, so far as the
advantages resulting from citizenship in those States are concerned. It
relieves them from the disabilities of alienage in other States; it inhibits
discriminating legislation against them by other States; it gives them the
right of free ingress into other States, and egress from them; it insures to
them in other States the same freedom possessed by the citizens of those
States in the acquisition and enjoyment of property and in the pursuit of
happiness; and it secures to them in other States the equal protection of
their laws.
Though
stated in the language of individual rights, this is also a principle of
interstate comity under which each state secures for its citizens the same
rights when they travel in other states that it concedes to visitors from such
other states. For this reason, the Art. IV Privileges and Immunities Clause is
conventionally referred to as the Comity Clause.
In Saenz, the Court
unanimously found that the Comity Clause protected the temporary visitor to
another state. However, the Clause less clearly extends to permanent migrants
and the residency requirements of entry states, for while it endows the New
Yorker with certain rights whilst he visits Virginia, it has less to say about
those who, having left New York, are now Virginia residents. That is left,
thought the Court, for the Fourteenth Amendment:
All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States....
These
provisions have largely lain dormant. When the Shapiro court impeached
a two-tier plan in 1969, it did so by invoking the Equal Protection Clause. In
Saenz, however, the Court invoked the Fourteenth Amendment=s
Privileges or Immunities Clause, and this invites a reconsideration of its
purpose. (Following convention, I shall refer to the first quoted sentence as
the Citizenship Clause and the second as the Privileges or Immunities
Clause--although I shall seek to conflate the two).
3.
The Privileges or Immunities Clause
What is the point of largely
repeating the Comity Clause in the Privileges or Immunities Clause? The
legislator does not speak in vain; less so the Constitutional draftsman. Yet
the overlap between the two Clauses is so close that an eminent scholar has
proposed that the Privileges or Immunities Clause be treated as if it were
obliterated by an ink blot.
What does it do that the Comity Clause does not do? Moreover, since the Slaughter-House
Cases in 1873,
the Privileges or Immunities Clause has been thought a dead letter, for
reasons that case made clear.
The Slaughter-House Cases
upheld Louisiana legislation that created a slaughter-house company, permitted
local butchers to use its facilities for set fees, and prohibited all
slaughtering elsewhere in the area. Local butchers argued that the grant of
the monopoly abridged their Privileges or Immunities, and, writing for the
Court, Justice Miller seemed at first sympathetic to their argument. The core
of the Clause, said Miller J., was citizenship, the citizenship denied a
fugitive slave in the Dred Scott case. Dred Scott could not be a
citizen of a slave state; and there was no such thing as American citizenship
apart from the individual=s
citizenship of a state. That, said the learned judge, was the lacuna that the
Fourteenth Amendment addressed, by creating an American citizenship. AIt
is quite clear ... that there is a citizenship of the United States, and a
citizenship of a State, which are distinct from each other, and which depend
upon different characteristics or circumstances in the individual.@
Yet what follows from the creation
of an American citizenship? What are the rights of he who can say civis
americanus sum? And might these rights be prescribed by the federal
government, trumping inconsistent state laws? Miller peered into the abyss of
unconstrained federal paramountcy and immediately recoiled.
Was
it the purpose of the fourteenth amendment by the simple declaration that no
State should make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States, to transfer the security and
protection of all the civil rights which we have mentioned from the States to
the Federal government? And where it is declared that Congress shall have the
power to enforce that article, was it intended to bring within the power of
Congress the entire domain of civil rights heretofore belonging exclusively to
the States?
The
questions answered themselves, thought Justice Miller. How could Congress be
granted an unfettered power to set aside state laws in a federal system of
government? When the effect of a claim of Congressional power:
is
to fetter and degrade the State governments by subjecting them to the controls
of Congress, in the exercise of powers heretofore universally conceded to them
of the most ordinary and fundamental character; when in fact it radically
changes the whole theory of the relations of the State and Federal governments
to each other and of both these governments to the people; the argument has a
force that is irresistible, in the absence of language which expresses such a
purpose too clearly to admit of doubt.
What
the learned judge meant was just the opposite, of course: that such an
argument must necessarily fail. Otherwise, the federal government might usurp
all state powers through the Privileges or Immunities Clause.
Justice Miller did not think that
the Citizenship and Privileges or Immunities Clauses were entirely devoid of
content. An American citizen has the privilege to invoke specifically federal
protections, such as the protection of the federal government when he is
abroad, the writ of habeas corpus, and the right to vote in federal elections.
Under the Privileges or Immunities Clause, state have no competence to abridge
these rights. But as such rights do not include the
right to slaughter animals, the impugned Louisiana legislation was upheld.
Prior to Saenz, therefore,
the Privileges or Immunities Clause divided legislative powers into two
watertight compartments of unequal size. In the very small compartment of
American citizenship rights, state governments had no competence to legislate;
and in the vastly larger compartment of state law, the Privileges or
Immunities Clause did not in any way fetter state legislatures. Not
surprisingly, the Privileges or Immunities Clause was little invoked. In the
136 years between the Slaughter-House Cases and Saenz, only one
case found that a state law had violated the Clause and that case was reversed
five years later.
What is remarkable is that,
elsewhere in the ship, the scope of federal powers expanded beyond all
measure. In the area of civil rights, this expansion came through the
incorporation of portions of the Bill of Rights and the judicial protection of
fundamental constitutional rights, and not through the Privileges or
Immunities Clause, which is where a plain reading of the Constitution would
have led one to look for federal civil rights law. Justice Miller=s
fear that state governments would be Adegraded@
has largely come to pass, and his argument that the Privileges or Immunities
Clause should be construed narrowly has considerably less bite today than it
did in 1873.
The
intriguing question posed by Saenz is how broad the scope of the
Privileges or Immunities Clause might be. Might it implicate constitutional
principles and rights that have nothing to do with mobility rights? In his
dissent, Justice Thomas posed the question squarely. The majority appeared to
breathe new life into the Privileges or Immunities Clause, he noted, without
reevaluating its meaning or seeking to understand what the framers intended.
There is little reason to suppose that the framers thought that privileges or
immunities meant mobility rights and nothing else. The question how far the
Clause extends, and whether it will expand or narrow existing substantive
rights, can therefore be expected to arise again.
In
what follows I propose a novel reading of the Privileges or Immunities Clause
that fairly emerges from a study of the framers and their times. Like Justice
Thomas and a large number of constitutional scholars,
I suggest that the Clause might plausibly incorporate the set of basic rights
enjoyed by American citizens. Unlike them, however, I argue that basic
constitutional liberties are constitutive of the American identity, and
deserve support as a symbol of American nationalism.
While
this argument is novel, the concern for national identity has never been
entirely absent from constitutional deliberation. The Saenz court
itself noted the desirability of a constitutional jurisprudence that is
informed by nationalist sentiments. Justice Stevens quoted Paul v. Virginia
on the value of mobility rights: without them America would be Alittle
more than a league of States@
as opposed to Athe
Union which now exists.@
And in the penultimate sentence of his opinion, he adopted a paean to national
unity. AThe
Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo
put it, >framed
upon the theory that the peoples of the several states must sink or swim
together, and that in the long run prosperity and salvation are in union and
not division.=@
II.
A Nationalist Theory of Rights
1.
The Historical Context
In examining what the Privileges or
Immunities Clause might mean, one might reasonably begin with the
constitutional debate that led to passage of the Fourteenth Amendment.
Conservative scholars have argued that the framers sought only to incorporate
the Civil Rights bill of 1866, and that the Privileges or Immunities Clause
must be seen as an equalitarian measure meant to remove the barriers to
citizenship rights and legal capacity that Southern states sought to impose on
African-Americans.
So viewed, the Clause does not bar a state from restricting the liberty of all
of its citizens, as long as the law does not discriminate among classes of
citizens. On historical grounds, this narrow reading of the Clause has been
questioned by many scholars,
who have argued that the framers sought to give it broader substantive
content. In this Section, I consider a novel argument for a substantive
interpretation that extends beyond anti-discrimination norms, an argument that
emerges from prior scholarship but that has not been advanced as a ground for
an expansive view of the Clause. I shall argue that the framers, imbued with
the patriotism that followed the North=s
victory in the Civil War, sought to anchor the hard-won idea of American
nationhood on the substantive national liberties of all American citizens.
When the framers of the Fourteenth
Amendment campaigned for its support, they voiced the strong patriotic
sentiments of the victors in a long and bloody war.
The Civil War had just ended, and the work of national union had begun. The
war was fought to preserve the Union, but from it emerged a very different
kind of nation, with a new kind of self-understanding and patriotism. The War
had indissolubly linked American nationhood with the ideals of freedom through
Lincoln=s
Anew
birth of freedom.@
Henceforth it would be the business of the national government to protect
freedom through an expanded sense of the rights of national citizenship. As
Eric Foner noted, what emerged from the conflict was a Anew
empowered national state and the idea of a national citizenship enjoying
equality before the law.@
The themes of nationalism and
national rights were frequently invoked in the Congressional debates over the
Privileges or Immunities Clause. Its principal draftsman, Congressman John
Bingham (R. Ohio) explicitly adopted a nationalist understanding of civil
rights:
[T]his
very provision of the bill of rights, ... more than any other provision of the
Constitution, makes that unity of government which constitutes us one people,
by which and through which American nationality came to be.... Is it not
essential to the unity of the people that the citizens of each State shall be
entitled to all the privileges and immunities of citizens in the several
states?
Who
could oppose the Amendment, asked Bingham:
Who
ever before heard that any State had reserved to itself the right, under the
Constitution of the United States, to withhold from any citizen of the United
States within its limits, under any pretext whatever, any of the privileges of
a citizens of the United States, or to impose upon him, no matter from what
State he may have come, any burden contrary to that provision of the
Constitution which declares that the citizen shall be entitled in the several
States to all the immunities of a citizen of the United States?
This
was the sense in which the dissenting judge in the Slaughter-House Cases
understood the Privileges or Immunities Clause. American citizenship was not Aan
empty name, but had connected with it certain incidental rights, privileges
and immunities of the greatest importance.@
These immunities included the right
to travel, not an abstract right but the specific one of white Northern
Unionists to travel unmolested to the South. In addition, the sense of
national rights embraced broader substantive privileges, such as the rights of
assembly and free speech that Southern Unionists complained were denied them
in 1866. Was this the cause for which the War had been fought, asked the
veterans; who cheered when they were told, by Senator Yates (R. Ill.), that AWe
are now on the proud basis of Union, for the full freedom of speech and
freedom of discussion on every foot of American soil.@
A letter from a Southern Unionist
to the New York Tribune made plain the contemporary understanding of
the Privileges or Immunities Clause=s
mobility rights:
For
years before the War, almost everywhere in the South, northern born men were
mobbed; some even put to death for uttering abolitionist sentiments.... The
rights of American citizens, not only to enjoy their rights, but to protection
in the full enjoyment of them, is now the dogma of the hour.... This is what
the Flag means.... [B]e assured that this great mass of free people, whose
rights, whose hopes and destinies, are all wrapped up in and secured by this
great chart of liberty, have studied it well, and most especially those
clauses which relate to their right to migrate from one state to another, and
to be secure in every place in all the high behests of an American citizen.
Similarly,
Congressman Columbus Delano (Rep. O.) noted:
I
know very well that the citizens of the South and of the North going South
have not hitherto been safe in the South, for want of Constitutional power in
Congress to protect them. I know that white men have for a series of years
been driven out of the South, when their opinions did not concur with the
chivalry of Southern slaveholders.... We are determined that these privileges
and immunities of citizenship by the amendment of the Constitution ought to be
protected.
For the men of 1866, the Union
victory was still precarious. Union forces still occupied the South, but
prominent Confederates had been elected to high political office in Georgia
and South Carolina, and local Republicans felt beleaguered. Republican leaders
foresaw the day when the troops would depart, and the Fourteenth Amendment
would be needed to take their place.
[T]he
Union men of Tennessee to-day have no security except from the armed presence
of the United states Government there. And when the State shall be restored,
and the troops of the Government withdrawn, they will have no security in the
future except by force of national laws giving them protection against those
who have been in arms against them.
There is room for disagreement
about the framers=
understanding of the Fourteenth Amendment. Several of the framers made
expansive claims about the Privileges or Immunities Clause,
while others took a narrower view of its scope.
Few of the framers would have expected the Clause to embrace the modern set of
constitutional liberties, since it was seldom suggested that the Fourteenth
Amendment would constrain northern states in 1866.
Nevertheless, it seems clear that the Privileges or Immunities Clause was not
addressed solely to present or even contemporary issues of racial justice. The
draftsmen also sought to vindicate the rights of all American citizens, white
and black, by creating a national citizenship in the Citizenship Clause and
giving it content through the Privileges or Immunities Clause. Such privileges
included mobility rights, but they also embraced substantive rights that
protected the migrant after he moved. The northern migrant could not be
prevented from moving to the south; nor could he thereafter be prevented from
voicing his opinions and assembling to express them in his new state.
B.
Are Constitutional Rights a National American Symbol?
Whatever the intent of the framers
of the Fourteenth Amendment, the scope of the Privileges or Immunities Clause
was soon abridged by the Slaughter-House Cases. In the decades that
followed, the flag, the Union, or the Bill of Rights might have served as
focal points of patriotism, but not a set of national constitutional
protections that constrained state legislators. Had that decentralized
constitutional regime persisted, the argument from nationalism that I am
advancing would not be persuasive. But it did not persist. Since the Second
World War, the scope of state legislative authority has shrunk through the
incorporation of portions of the Bill of Rights.
As
this happened, patriotic sentiments focused more closely upon the national
than state governments, and Americans began to look to the national government
as the guarantor of their freedoms. The Second World War had itself much to do
with this, with its call for national service in a military that purposely
united soldiers from different states in the same units, dissolving regional
barriers as never before. The country=s war aims were also identified with constitutional
liberties, through President Roosevelt=s Four Freedoms (particularly as portrayed by Norman
Rockwell).
Before the judicial revolution of national rights, the popular revolution took
place in the hearts of the American people, as John Adams said of the American
Revolution.
The
importance of constitutional liberties as a nationalist icon has so frequently
been noted that the point might seem trivial.
A[T]he
American Constitution is unlike any other,@
said historian Hans Kohn. AIt
represents the lifeblood of the American nation, its supreme symbol and
manifestation.@
Other countries had their common cultures or religions. What America had was
an idea. Thus Robert Penn Warren wrote, Ato
be an American is not ... a matter of blood; it is a matter of an idea--and
[American] history is the image of that idea.@
And what was the idea? Not simply liberty or liberty under law, for those were
also English ideas. The special American contribution, that defined the nation
itself, was the idea of constitutionally-protected liberty. This was Wendell
Willkie=s
idea of America in his 1943 bestseller One World.
Our
nation is composed of no one race, faith, or cultural heritage. It is a
grouping of some thirty peoples possessing varying religious concepts,
philosophies, and historical backgrounds. They are linked together by their
confidence in our democratic institutions as expressed in the Declaration of
Independence and guaranteed by the Constitution.
It
has been repeated in countless stump speeches and high school debates, and
according to the most sophisticated of today=s
pollsters continues to define this country.
The
genius of American nationalism is liberal nationalism,
where the core icon is not blood or earth but a constitutional ideal of
liberty. This quite reverses the way in which nationalist symbols operate in
most other countries. Ernest Gellner argued that the growth of European
nationalism was a response to the wound of modernity that followed the shift
from an agricultural to an industrial economy. Nationalism united an alienated
society, wrote Gellner, with AGesellschaft using the idiom of Gemeinschaft.@
The deserted village was reinvented in the nation-state, and Aa mobile anonymous society simulat[ed] a
closed cosy community.@
In America, however, where a constitutional icon takes the place of la
patrie, gemeinschaft uses the idiom of gesellschaft, and the
community is formed by its laws.
C. Universal
and Particular Rights
When
basic liberties are national symbols, they might be seen from either a universal
or a particular perspective. On a universalist theory of rights, their
content is determined through an abstract deliberation about the rights owed
to all men, without regard to their nationality. By contrast, a particularist
theory of rights need not claim that its stock of rights is appropriate in
every state or society, and might defend a conception of rights for a
particular polity only.
An older generation of American
constitutional scholars that had lived through the Second World War was more
likely to have a particularist conception of rights. They had been asked to
make enormous sacrifices when their country was threatened, and patriotic
sentiments remained strong. Thus Charles Black asked ACan
we really bear to say, even (and above all) to ourselves, that the unity of
this Union is a unity only in governmental power and economic exchange, but is
not a moral union in the observance of human rights?@
And, answering his question, he argued:
Ours
is a nation that founded its very right to exist on the ground of its
commitment to the securing of nobly envisioned human rights in very wide
comprehension--a country that now bases its claim to the world=s
regard on a questing devotion to the securing of human rights.
Unlike universalist rules,
particularist constitutional guarantees do not seek a justification in a rule
of reason common to all men. Instead, they derive their authority from the
duty to support the fundamental institutions of one=s country.
Nevertheless, a particularist attachment to a charter of rights requires a
degree of moral commitment to them as rights, and not simply to them as a
national symbol. An
American who says that the right of free speech should not be abridged and
adds Abut
that=s
just what we happen to believe around here@
shows a lack of loyalty to a national symbol. That is why particularism resembles
universalism when (unlike flags) the symbol has its own moral content. But it
does not follow that a particularist devotion to a Bill of Rights must
collapse into universalism. The particularist
might see his country=s
charter as uniquely appropriate for his own country, and not readily
exportable. Or he might think that it is an optimal set of rights for everyone
but reserve judgment about prescribing for citizens of other countries.
Once again, the metaphor of a race
is instructive. To say that I think a particular runner deserves to win does
not mean that I should wish to call off the race and simply hand him the
prize. I will want the race to be run in any event, not merely because it is
enjoyable but also because it provides new information about who is best. In
the same way, I might think that the Bill of Rights represents the perfection
of legal reasoning but still seek the verification that comes from the
laboratory of international competition in the provision of constitutional
protections.
III. Five Objections
The
study of national symbols is not an exact science. It is not a matter of logic
but of imprecise and even contested sentiment. Revolutionary traditions
provide a patriotic symbols for most Frenchmen, but not so long ago many of
their compatriots identified with the forty kings who in a thousand years made
France.
There is also something less than unanimity about national icons in America,
where conservatives might object to my suggestion that constitutional
liberties serve as a national symbol. Instead, they might see a common
cultural heritage in literature and art as a more fundamental focal point of
national identity. Alternatively, they might
prefer
to identify with federalism and America=s
tradition of decentralized liberty. For their part, liberals are apt to
dismiss all appeals to nationalism. On their view, constitutional liberties
are valuable for themselves, on abstract principles of right, and not because
they happen to be a set of American rights. In what follows, I shall
argue that conservatives are wrong to deny that constitutional liberties are a
national symbol; and that liberals are wrong to deny the value of national
symbols.
1.
The Cultural Objection
In most countries, a common
cultural heritage provides a central national symbol. In his pioneering
studies of nationalism, Ernest Gellner made even stronger claims about the
need for common cultural bonds. A[A]
high culture pervades the whole of society, defines it, and needs to be
sustained by that polity. That is the secret of nationalism.@
What Gellner had in mind was not folk culture but Kultur, the high
culture of a national art and literature.
The importance of cultural bonds in
European nations is generally conceded. Taking Beowulf from a
literature curriculum would uniquely weaken national sentiments in England. In
America, however, multiculturalists deny the importance of homogenous cultural
bonds, which have become highly controversial. For example, conservatives such
as Peter Brimelow argue that American has a national culture which relatively
few of its immigrants share, and that the failure to screen immigrants on the
basis of culture weakens nationalist sentiments.
These kinds of arguments are often
advanced by illiberal nativists, and thus have fallen in disrepute.
Nevertheless, the desire to preserve a national identity, in Québec, France
or Israel, may be consistent with democratic and liberal principles.
A nation that seeks to preserve its language might thus adopt a measured
policy of favoring immigrants who speak the language, while still asserting a
devotion to liberal principles. If, moreover, such a nation has a generous
refugee policy, it would be difficult to fault its immigration policies from a
liberal perspective. In defending a communitarian vision of the state,
therefore, Michael
Walzer argues that, subject to liberal constraints, America might have been
justified in screening for homogenous immigrants had it remained a homogenous
nation.
However, this has not happened, argues Walzer: conservatives such as Brimelow
are factually wrong about the cultural unity of America, for America has
become a pluralist society; and any attempt to screen immigrants on the basis
of national origin would unjustly privilege one class of natives over another.
My
analysis suggests a second way in which Brimelow=s argument might fail. If constitutional
liberties are a core national symbol, and if the cultural screening of
immigrants is inconsistent with the understanding Americans have of their
country, then Brimelow=s
defense of nationalism would perversely weaken national sentiments. One could
not exclude aliens on cultural grounds without weakening that which it means
for natives to be American.
2.
The Devolutionary Objection
The second objection to my
nationalist account of constitutional liberties is that it conflicts with a
conservative image of America as a federal country in which state governments
possess expansive legislative authority. If a decentralized form of federalism
is the core nationalist symbol, then broad substantive rights under the
Privileges or Immunities Clause would weaken, not strengthen, nationalist
sentiments.
One is permitted to be skeptical
about this objection. If the claim is that the core nationalist icon is the
federal system (as opposed to one=s
individual state), then the argument seems implausible. One might feel an
attachment to a state or to libertarian ideals, but not to a system of
government. If federalism might suffice, then why not proportional
representation or an elected Senate? Why not the electoral college? And why
would the American feel loyalty to the United States, rather than to a country
with a healthier federal system, such as Canada?
Suppose next that the core icon is
not the federal system, but rather the individual state. This would seem
intuitively more plausible. When Lee resigned his commission in the Union army
in 1861, it was because he thought Virginia and not federalism threatened. And
this points to a flaw in the devolutionary objection. Strengthening a sense of
loyalty to a state or province (Virginia or Québec) ordinarily weakens, not
strengthens, one=s
loyalty to the central government. One might approve this result for a variety
of reasons, including the belief that the end result will be a more just or
free society, but not out of national patriotism. It is not in our
nature to love a thing and to wish it weak. Could one ever suppose that Lee
loved the Union more than Lincoln? To love a thing is to wish it strong, and
we love our countries most when they are girded for war, and in doing so we
betray weaker loyalties. We forget that we are Virginians or Yorkshiremen and
discover a new and more encompassing imagined community.
What is likely behind this
objection is the concern that a nationalist explanation of the Privileges or
Immunities Clause might result in an excessive expansion of federal power, and
that the result would be a less attractive country. We might fear the
consequences of an excessive attachment to our nation, if this meant that the
Privileges or Immunities Clause would suddenly swallow up all state private
law. This was Justice Miller=s
concern in the Slaughter-House Cases, but the scope of federal power
has expanded so greatly since then that breathing new life into the Privileges
or Immunities Clause might little affect the balance of federal-state powers.
On a plausible reading of the Clause, for example, Privileges and Immunities
might refer only to fundamental rights, such as those of the Comity Clause as
described by Justice Bushrod Washington in Corfield v. Coryell (1825):
The
inquiry is, what are the privileges and immunities of citizens in the several
states? We feel no hesitation in confining these expressions to those
privileges and immunities which are, in their nature, fundamental, which
belong, of right, to the citizens of all free governments, and which have, at
all times, been enjoyed by the citizens of the several states which compose
this Union, from the time of their being free, independent, and sovereign.
What these fundament principles are, it would perhaps be more tedious than
difficult to enumerate. They may, however, be all comprehended under the
following general heads: Protection by the government; the enjoyment of life
and liberty, with the right to acquire and possess property of every kind, and
pursue and obtain happiness and safety; subject nevertheless to such
restraints as the government may justly prescribe for the general good of the
whole.
This
was the sense in which Blackstone understood the phrase,
and it is one that gives content to the Privileges or Immunities Clause while
preserving the federal character of American government.
So understood, a state has the unfettered discretion to enact non-fundamental
private law rules, while fundamental individual rights are placed beyond the
scope of legislative interference, by either the federal or state governments.
C.
The Objection from Universalism
Let us turn from conservative to
liberal objections to the nationalist explanation of constitutional liberties.
Nationalism might first be thought to promote hostility to members of other
nations and to provoke the kinds of conflicts seen in the former Yugoslavia.
Better Tito than Milosovitch, one might reasonably think. Even if nationalism
is not pernicious, it might seem pointless when constitutional liberties serve
as a national icon. Why not support liberty directly, the liberal might ask,
rather than employ nationalism as a crutch to inculcate a respect for
constitutional norms? This is doubtless what Robert Goodin and Philip Pettit
had in mind when they excluded nationalism from the topics to be covered in
their collection of essays on political philosophy. ANationalism
... does not figure, on the grounds that it hardly counts as a principled way
of thinking about things.@
Let us address the second concern
first. If nationalism is the powerful sentiment that I take it to be (at least
for nationalists), then the respect for liberal principles is strengthened
when they become a national symbol. Similarly, the denial of human rights is
the more painful when it offends the nationalist=s
allegiance to his country.
As for the first concern, the
objection that nationalism is pernicious is speculative, as is any response to
it. Moreover, to defend nationalism in the abstract, one cannot rely on
arguments that focus on loyalty to a particular country. In the Great War Max
Weber argued that Germany should win because it defended Kultur, while
Émile Durkheim supported France in the name of civilization.
Both could not have been right; but to defend nationalism I must applaud the
patriotism of both. If (being a francophile) I argued that Durkheim=s
patriotism was benign and Weber=s
not, then I would be defending French culture and not patriotism.
Nevertheless, there is reason to
think that the benefits of nationalism outweigh its costs. There are four
reasons why we might want both Durkheim and Weber to be patriotic. First,
while wars are fought on nationalist grounds, patriotism plausibly decreases
the likelihood of conflict by increasing the costs of aggressive war. The
patriot can be readily enlisted to defend his homeland; but persuading him to
invade another country may be a harder sell. Non-patriots might fight for
private ends, for glory or material gain, but not so effectively as the
patriot who defends his country. So viewed, patriotism increases the costs of
imperialist or aggressive wars by reducing the probability of success. When
the war requires mass armies (or mass support through taxation), securing
patriotic backing is critical in the war effort, and the bias towards
defensive wars will reduce the overall likelihood of war.
The success of the Russian forces in the AGreat
Patriotic War@
is consistent with this thesis, and so too is English resistance to Hitler. AWhat
has kept England on its feet during the past year?,@
asked George Orwell in 1941. It was not the dessicated liberalism of an H.G.
Wells or George Bernard Shaw. Rather, it was:
chiefly
the atavistic emotion of patriotism, the ingrained feeling of English-speaking
peoples that they are superior to foreigners. For the last twenty years the
main object of English left-wing intellectuals has been to break this feeling
down, and if they had succeeded, we might be watching SS men patrolling the
London streets at this moment.
The extent to which nationalism
increases or decreases the likelihood of war depends in part on the ties that
bind co-nationals together. When these are ethnic loyalties, as in the former
Yugoslavia, nationalism may result in quite merciless wars. But with liberal
nationalism, where norms of freedom serve as national icons, nationalism is
more likely to reduce the possibility of conflict. Patriotic
symbols like the Bill of Rights or the Declaration of Independence contain
their own internal barriers to an adventuresome foreign policy, when a war is
seen to deprive the enemy of his freedom or independence. All this is
speculative, of course, for where the enemy is seen as repressive and
illiberal, as its enemies looked to revolutionary France, even liberal
nationalism has a belligerent side.
The second defense of nationalism is that an
homogenous culture economizes on scarce mental resources. More than anything,
nationalism fosters an homogenous culture, high and low, and what a common
culture may offer, to those who were formerly bretons or lorrainois,
is the ability to deal with each other across increased distances with lower
transaction costs. Dialects disappear and a single language emerges, with all
of the gestures and facial clues that are the common currency of exchange in a
conversation. ATo
>do
business with each other=,@ notes Charles Taylor, or Aoperate
a system of courts, run a bureaucratic state apparatus and the like, we need
millions who can communicate without difficulty in a context-free fashion.@
One could do all this without a common culture, but only at far greater
expense, for culture permits us to economize on the scarcest of resources--the
higher consciousness of deliberation and reflection.
The third defense of nationalism is
that it is one of the particularistic emotions, like love of family and
friends, that bind us to others, and that constitute the sense of solidarity
or community that is one of the most basic human goods. Solidarity is not only
an instrumental good, useful in permitting the parties in exploiting
opportunities for gain, but also an ultimate good. Ignoring such bonds drains
life and ideals of the particular content that alone gives them point.
Because
local loyalties--Burke=s
Alittle
platoons@--
are normally stronger than more encompassing ones, it might be thought that
nationalism perversely weakens the sense of solidarity by loosening
sub-national allegiances. What this forgets is that, in a federal state,
different levels of government call for a different kind of allegiance. Ties
to one=s city are doubtless important, but one does
not pay parking tickets out of a sense of urban loyalty. Where loyalty to a
state matters most is in wartime, when the highest personal sacrifices are
asked of one, and since the responsibility for national defense is efficiently
assigned to the national government, central governments have a special need
for the loyalty of their citizens.
The
fourth defense is that, by bonding us
more closely to our fellows, nationalism increases altruistic impulses and
reduces free riding.
We are more willing to perform acts for the general good--serving in the
military, contributing to charity--when we feel a kinship to those around one.
This promotes the trust that is the
cement of our society. Without trust our friendships would becomes affairs of
momentary convenience, on which no plans, no projects for future cooperation,
could be formed. We rely so often upon friends and associates that we often
forget we are doing so. We scatter our promises about, without paying much
attention to what we are doing. We make seemingly trivial promises, to meet
for lunch or to return a call, on whose performance deep friendships depend.
And we make unspoken promises that are the foundation of trust: I will take
your side; I will not betray you.
The
need for trust is obvious in social and family promises. Less obviously, trust
is of crucial importance in business dealings that cannot be reduced to a
single contract. Consider the relationship between a large law firm and one of
its major clients that generates millions of dollars a year for the firm.
There is no formal long-term arrangement between them, however, but only a
series of repeated one-shot retainer agreements. On any day, the size of these
billings is dwarfed by the expected value of future business dealings, since
clients seldom transfer their business from one firm to another. What gives
the relationship stability is not the individual retainers but rather the
personal relationships and trust built up over the years between firm and
client.
To
the extent that nationalism promotes trust amongst co-nationals, it may be
uniquely valuable in highly mobile societies such as the United States. In
several empirical studies I have found that personal bankruptcy and divorce
rates are paradoxically higher in politically conservative Sunbelt states.
The most plausible explanation is that these are high migration states, and
that the social stigma of promise-breaking is weaker when one is not rooted in
a community. Thus the sense that Americans have that they are all members of a
more encompassing nation, and that this binds them to each other, might
usefully promote trust.
In response, the anti-nationalist
might object that the nationalist=s
heightened sense of loyalty to his nation comes at the cost of reducing his
allegiance to more encompassing groups, such as Canada (in the case of the québécois),
the Austro-Hungarian Empire or mankind in general. One kind of solidarity
waxes, the other wanes. But this objection rests on two questionable premises.
The first is in thinking that the most remote and universal ties always
outweigh local ones. The alternative to national bonds is often not universal
bonds but no bonds at all. Nationalism might have unpleasant side effects,
such as trade barriers with Third World countries. But the abandonment of
nationalism is less likely to result in free trade with Africa than the
erection of trade barriers between Virginia and Maryland. The second
difficulty is in thinking that solidarity may exist without rivalry.
I root for the local high school, and against the other team. I choose one
religion in preference to another. Without religious preferences, I am simply
irreligious. It is a mistake to think that only the most encompassing
communities count, and that local allegiances are suspect because they treat
the outsider as an alien. What this forgets, in a world of natural rivalries,
is that we cannot take the side of one community without taking sides against
another.
D. The Objection from
Impossibility
Let
us assume that nationalism is benign. More precisely, let us assume that it is
the cooperative solution to a Prisoners= Dilemma (or PD) Game. If we had a choice,
however, would we choose to be
patriotic?
Perhaps not, since the patriot bears risks that the non-patriot conveniently
shirks. The patriot enlists in the services to defend his country; the
non-patriot nimbly avoids doing so. Yet we might all be better off if we live
in a society of patriotic people.
On
this view, anti-nationalists are defectors who seek the special payoffs
available to those who live in nationalistic societies without being
nationalists themselves. Such people benefit from the patriotic sacrifices of
others, without bearing the private costs of patriotism. A convenient
cosmopolitanism may sometimes look smug and self-serving. Yet if
anti-nationalism is an individually rational strategy, why is anyone
patriotic?
There
are at least two ways in which socially benign emotions of patriotism might
take hold. First, we might have improperly characterized the nature of the
game. The payoffs might not resemble a PD game; instead, it might turn out to
be a game of ABi-product
Mutualism@
in which cooperation dominates defection for all parties: whatever the other
party does, it is always better to cooperate. Bi-Product Mutualism is the game of the
Invisible Hand, in which the search for private advantage is socially
beneficial and cooperative gains are a spillover benefit of
individually-rational behavior. The temptation to defect disappears, and with
it the fear that nationalist sentiments will be under-produced. This might
happen when the private benefits associated with membership in a national
community (such as ease of communication) cannot be exploited without a
substantial human capital investment in the culture, and feelings of
patriotism follow as a bi-product.
These results are modeled in the following diagrams.
Diagram
1
The Patriot=s
Dilemma
How
efficient nationalism might fail to take hold because cosmopolitanism is
individually rational
Player
2
Player 1
|
|
Nationalism
|
Cosmopolitanism
|
|
Nationalism
|
3,3
|
-5,4
|
|
Cosmopolitanism
|
4,-5
|
0,
0
|
Diagram
2 Bi-product Mutualism
How
nationalism might be both efficient and individually rational
Player 2
Player
1
|
|
Nationalism
|
Cosmopolitanism
|
|
Nationalism
|
5, 5
|
1, 1
|
|
Cosmopolitanism
|
1, 1
|
1, 1
|
The
second way in which nationalist sentiments might take hold is through a change
in the payoff structure of the game when nationalist sentiments can be
credibly signaled. When nationalism can be identified, cosmopolitanism can be
detected and punished, and this may eliminate the temptation to defect. In
Israel, for example, top civilian jobs are apparently denied to those who
refused to serve in their country=s
armed forced.
And non-patriots were formerly handed a badge of shame, like the white
feathers of the Great War. The strategic
structure of the game might then change to one of Bi-product Mutualism, in
which a cooperative nationalism is individually rational for all players.
As Michael Spence has shown,
private information might be credibly signaled by the willingness to bear a
cost.
The costs are easy enough to spot when war is declared and the patriot is
called on to defend his country. But how does one signal patriotism before
that time?
A
bare statement that one is a nationalist will not suffice because the
non-patriot can costlessly mimic the signal, and will do so as long as people
are rewarded for their nationalism. Signaling gains will then disappear: no
signal will be believed and no one will bother to signal.
Nevertheless,
the patriot might credibly pre-commit to make sacrifices for his country
before wartime through a deep and lasting emotional commitment to his country.
Ernest Gellner reported that tears came to his eyes when he heard Czech folk
songs, and the American nationalist might similarly be affected by his country=s
flag or national anthem.
In addition, an instinctive and emotional defense of constitutional liberties
is also a badge of American nationalism. The patriot=s
defense of national American liberties is an affair of the heart as well as
the mind, and this helps to explain the passion with which the ACulture Wars@ are fought.
Signaling theories are generally
speculative, in the absence of hard empirical evidence. The
informational content of the signal might weaken in two ways. First, when the
patriot regards his country=s
constitutional rights as flawed, he might reject them as patriotic symbols.
Second, the nationalist might fear that misbehaving politicians will
manipulate his patriotism. Today a person might wish to become a prudent
nationalist; but he knows that becoming patriotic will change his preferences
and lead him tomorrow to behave in ways that today he thinks foolhardy. Today
he can distinguish between just wars and jingoistic adventures; tomorrow it
might not be so easy. He is like the man who signals a credible romantic
commitment by letting himself fall in love, all the while knowing that there
is a positive probability that he will be jilted. Where the risk is worth
running, the emotional commitment is rational, for it helps to persuade his
lover that she may trust him; but where the risk is excessive it is more
sensible to keep one=s emotions in check. So too, a prudent
cosmopolitanism will commend itself when the agency costs of political
misbehavior are high.
In all of these ways, the signal might unwind.
The
simplest response to these objections is that, as a matter of fact, people in
general (and Americans in particular) are patriotic, and are willing to make
sacrifices for their country. As such we need not trouble ourselves unduly
with the argument from impossibility.
E.
The Objection from Indeterminacy
One of the difficulties of the
argument from nationalism is its apparent vagueness. Even if nationalism
matters, and constitutional liberties are a national symbol, how can one tell
national rights apart from lesser rights that are left for the states to
prescribe? In the Slaughter-House Cases, Justice Miller described
national rights as those which Aowe their existence to the Federal government [and] its
National character.@
But which are these? And if one cannot tell the two kinds of rights apart, how
can the idea of nationalism assist in constitutional analysis?
The simplest response to this
objection is a tu quoque: as vague as nationalism standards might be,
they would seem as clear as other constitutional principles that courts and
constitutional scholars have applied or suggested. Privacy standards are no
more certain in their application, and Public Choice theories of competitive
federalism have been raised in defense of very different welfare law policies
(as we saw in Part I). There is a lengthy literature on the Takings Clause of
the Constitution in which the empiricist will search in vain for testable
propositions.
Secondly, even if the argument from
nationalism is speculative, it is wrong to dismiss it out of hand when
anti-nationalist claims are equally speculative. What it comes down to is
weighing of the external costs of weakening nationalist bonds. Those who
reject the nationalist=s
arguments must be taken to argue that, as a matter of fact, nationalist
concerns impose trivial costs. This is an empirical claim, and it is no less
speculative than that of the nationalist. The liberal nationalist asserts that
downgrading constitutional liberties would impose positive spillover costs in
weakening a national symbol; the anti-nationalist assigns a zero weight to
such costs. In principle, there is no reason to award the palm arbitrarily to
the anti-nationalist or to insist that the nationalist bears the sole burden
of proof.
Thirdly, nationalism standards are
not devoid of content, as it happens. They have a clear application to
mobility rights and usefully inform the analysis of broader constitutional
issues. However, a nationalist perspective cannot be narrowly legal. Lawyers
cannot prescribe national symbols. They cannot define a particular right as
constitutive of the American identity. They must be sympathetic listeners, and
not dogmatic teachers. They must know that their decisions affect a national
symbol, and that constitutional rules that embitter a large number of fellow
citizens may impose a substantial cost in weakening the bonds of national
allegiance. As I shall argue in the next Part, this argues for prudence in
constitutional design, and those who believe that Supreme Court decisions in
recent decades have not been notable for their prudence might consider
nationalism a powerful analytical tool.
In
sum, a variety of objection might be made to my account of constitutional
liberties as an American nationalist icon. However, these arguments are
speculative, and none of them deliver the kind of knock-down blow that renders
the nationalist account of the Privileges or Immunities Clause implausible. In
the next Part, I ask what the implications of this might be, as a matter of
constitutional interpretation.
IV. The Constitutional Implications
A nationalist understanding of the
Privileges or Immunities Clause has four implications for constitutional
interpretation. First, it suggests that the mobility rights the Saenz court
upheld deserve a very high degree of protection. Second, it assists in
understanding cases where the Supreme Court has been faulted for offering
insufficient protection for national symbols such as the flag. Third, it
suggests that constitutional liberties deserve protection at the national
level, and should not be entirely turned over to the states. Otherwise, a
strong case could be made for a very thin set of national constitutional
liberties, or even for state opt-out rights on the model of the ANotwithstanding@
clause of the Canadian Charter of Rights. Fourth, it suggests a further need
for caution in turning contentious political questions into constitutional
rights. In politics, there are only winners and losers, and there is no great
shame in being a loser; but in American constitutional law the losers can be
faulted for a want of loyalty to core American values, and this will weaken
nationalist sentiments.
A.
Mobility Rights
The constitutional Privilege most
directly implicated in Saenz was the right of Americans to travel from
one state to another. But while the Court accorded a very high degree of
protection to mobility rights, it is clear that every state has implicit
migration policies. In adopting a piece of domestic legislation, they not
infrequently have an eye to its effect in migration markets, and will seek to
attract desirable and repel undesirable migrants. Some of these policies are
efficient; other not. It would be impossible to proscribe all such laws, nor
would one wish to do so.
State migration policies are of two
kinds. First, fiscal and welfare policies may
attract or repel migrants, depending on their income levels. A high-tax and
high-welfare state will attract welfare seekers and (given progressive tax
policies) repel high income earners. A low-tax and low-welfare state, by
contrast, will repel welfare seekers and attract high income earners. In this
way state clientele effects might develop, in which liberal and conservative
states trade off voters in the manner of Mr. and Mrs. Jack Spratt at table.
The second form that state
migration policies might take is non-fiscal private or public law rules. For
example, many states fashion their education policies with an eye to their
effect on migration. Bad schools mean fewer citizens and reduced income and
property tax revenues. A state might also adopt non-fiscal laws to repel
unwanted migrants, for example by tough sentencing policies for criminals. In
all these ways, a state=s
domestic laws might be shaped by the competition for migrants.
Diagram
3
Non-Fiscal State Migration Policies
|
|
Efficient
|
Inefficient
|
|
Laws that attract migrants
|
Frontier Thesis
|
The market for deadbeats
|
|
Laws that repel migrants
|
Efficient criminal laws
|
Laws that weaken nationalism
|
State migration policies that seek
to attract migrants might be either efficient or inefficient. The leading
account of an efficient competition for migrants is Frederick Jackson Turner=s
Frontier Thesis.
Turner described a process in which
western states, with fewer geographical advantages, competed for people
through liberal laws and democratic institutions. Faced with the loss of
valuable natives, eastern states responded by adopting similar legal regimes;
and the process, said Turner, reached back into the Old World, which
liberalized its laws to reduce emigration by valuable subjects. Unlike Paul
Peterson=s
account of a race to the bottom, this is distinctly a race to the top, won by
states that offer the most benign set of laws.
In
other respects, however, the race might be to the bottom.
I have elsewhere noted how states might inefficiently seek to attract Adeadbeat@
migrants through laws that permit them to discharge legitimate obligation owed
to exit-state creditors.
The entry-state gets more migrants; and they are wealthier since they have
left their creditors behind them. The resultant competition for laxity in
insolvency or divorce law is a race for the bottom, won by the state with the
most generous discharge policy.
The efficiency consequences of
state policies that repel migrants might also be mixed. To the extent that
efficient criminal sanctions in an entry state deter criminal migrants who
live in exit states with excessively lax sentencing laws, the tougher laws of
the entry state might usefully impose an added cost on wrongdoing. But
barriers to entry might also be value-decreasing, and one way in which this
might happen is by weakening nationalist sentiments. The example I have in
mind is Québec=s
restrictive 1977 language legislation, Bill 101. The law provided that
anglophones who were raised in a province outside Québec and who moved there
had to send their children to an all-French school, even if they were in high
school. The denial of linguistic rights was largely symbolic, since there was
substantial net anglophone out-migration at the time. Few anglophones from the
rest of Canada wished to move to a province that sought to curtail their
rights and secede from their country. As such, one might have expected that
few non-Quebeckers would object to this restriction. Yet it was greatly
resented. The Alberta farmer who had not the slightest intention of visiting
Québec understood that he was not wanted there, and the thought rankled. The
lingering bitterness over Bill 101 helps to explain the defeat of the Meech
Lake constitutional accord and the present constitutional impasse in that
country. To say that the issue is largely of symbolic importance is to miss
the point, for symbols of nationhood are prized public goods, and the
weakening of Canadian nationalism has imposed enormous financial costs on the
country.
On a nationalist understanding of
rights, mobility rights are of paramount importance. A country with internal
border guards is not a nation, and even implicit barriers to interstate travel
weaken the sense of national identity that keeps a country together. That is
why the Canadian Charter=s
Notwithstanding Clause does not extend to mobility rights: a province cannot
derogate from the right of a Canadian citizen to enter into, reside or gain a
livelihood in any province. Moreover, s. 23 of the Canadian Charter--the ACanada
Clause@--trumped
Bill 101 by providing that anglophones who move to Québec from another
province have the right to send their children to English-speaking schools. As
Canadian provinces enjoy a remarkable degree of autonomy from federal
legislation, these restrictions stand out, as a recognition of the fundamental
importance of the bonds of nationhood.
The strict interpretation that Saenz
gave to mobility rights, in striking down a two-tier plan, should also be
understood from a nationalist perspective. State laws that discriminate
between long time residents and new arrivals might in some respects be
sensible (like California=s
two-tier welfare plan), but nevertheless come at a cost. Like Bill 101, they
weaken national bonds, and therefore deserve the strict scrutiny they received
by the Saenz court.
A nationalist perspective explains
the contours of the Saenz court=s
interpretation of mobility rights. While the Privileges or Immunities Clause
protects the rights of U.S. citizens, the question in Saenz was when a
person becomes a state citizen, and it does not follow that a state
must be denied the power to legislate on that issue through reasonable
residency requirements. As the Saenz court noted, Athe
right to travel embraces the citizen=s
right to be treated equally in her new state of residence.@
But that leaves open when he becomes a citizen of the new state. Similarly, in
the Slaughter-House Cases itself, Justice Miller suggested that one of
the privileges under the Privileges or Immunities Clause Ais
that a citizen of the United States can, of his own volition, become a citizen
of any State of the Union by a bona fide residence therein, with the same
rights as other citizens of the State.@
He did not, in short, suggest that the question of bona fides must be resolved
solely by absolute federal standards, but instead invited a nuanced
examination of locational choice in which a measure of discretion might be
granted to state legislatures. From a nationalist perspective, however, the Saenz
court=s
insistence on federal paramountcy is eminently sensible. It is the federal and
not the state government that must call upon the loyalty of its citizens in
times of national crisis; and it is the federal government that is chiefly
concerned with the preservation of the sense of national identity that unites
Americans and fosters their nationalism.
This also explains why a lesser
degree of federal scrutiny is imposed when states deny benefits to temporary
visitors, with state residency requirement upheld when they condition
university tuition breaks,
standing to sue for divorce,
and voting in primary elections.
These laws do not trench on a sense of national identity. Virginia may impose
an out-of-state tuition premium on Marylanders who attend a Virginia
university without sending a signal that they are second-class citizens.
Barriers to permanent visitors, that persist after the decision to settle in
Virginia, are however another matter.
Like all rules that impose
bright-line solutions to nebulous problems, the Saenz court=s
distinction between temporary and permanent visitors may be under- and
over-inclusive. A one-year residency requirement for in-state tuition benefits
might impose a penalty on the mature adult who seeks to settle in the new
state as well as the seventeen year old freshmen, and a constitutional rule
that permits this result might be under-inclusive. The ban on California=s
two-tier welfare plan might also seem be excessive, as I argued three years
ago,
and the Saenz result over-inclusive. But a bright line rule might be
the best one can hope for, if nebulous standards would prove impracticable. In
such a case, the only question is whether the benefits of enforcement outweigh
the costs of under- and over-inclusiveness, and this must depend on the
importance of the interest to be protected. I have argued that American
nationalism, while overlooked by the constitutional scholar, is of enormous
importance. If so, the Saenz court=s
defense of American citizenship and the new life it gave to the Privileges or
Immunities Clause might seem a prudent response to a national concern.
B. The Protection of
National Symbols
Seeing
constitutional freedoms as a national American symbol assists in understanding
Supreme Court decisions that have been faulted for offering
insufficient protection to the symbols of national unity and patriotism,
In Texas v. Johnson,
a Texas statute that criminalized flag-burning was found to violate First
Amendment guarantees of free speech. However, it is a mistake to think that
the Court was insensitive to national symbols, for First Amendment rights,
stated in the broadest possible fashion, are themselves a symbol of the
nation. AIf
there is a bedrock principle underlying the First Amendment,@ said the Court, Ait is that the government may not prohibit the expression
of an idea simply because society finds the idea itself offensive or
disagreeable.@
For support, the Johnson
court turned to West
Virginia Board of Education v. Barnette, where Justice Jackson stated AIf
there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein.@
In Barnette, decided in the middle of World War II, the Supreme Court
held that a Jehovah=s
Witness could not be compelled to salute the flag. This too was more a
vindication than a denial of American symbols, since the defense of liberty
was the greatest of American symbols.
Such cases feature a clash of
symbols in which an abstract fundamental symbol--the Bill of Rights--takes
priority over a concrete and less central icon--the flag or the Pledge of
Allegiance. Behind
this clash are more fundamental differences in outlook, between the
rationalist and the romantic, Whig and Tory, and Protestant and Catholic. From
one perspective, the destruction of images might look like mere iconoclasm,
but what this misses is the struggle (not without religious significance)
between competing icons.
C. The Limits of Devolution
The
principle of nationalism also has bite in the allocation of responsibilities
between the federal and state governments. But for nationalism concerns, a
persuasive case may be made for letting each state set its own policies with
respect to such matters as free speech, gun control and religious expression.
This might happen through a return to the constitutional vision that prevailed
in and after the Slaughter-House Cases, where federal civil rights law
was relatively thin and the Fourteenth Amendment did not incorporate any part
of the Bill of Rights.
Recent Supreme Court decisions,
such as Printz
and Lopez, suggest that principles of
federalism must be accorded new respect. Nevertheless,
a devolutionary vision of civil rights runs strongly against the grain for
most Americans. AStates=
Rights,@
secession and John C. Calhoun=s
Nullification doctrine are thought to have been left on the dustbin of
history, fatally linked to highly illiberal racial policies. It is therefore
useful to note that other countries have maintained a liberal tradition
without an American-style set of substantive national civil rights. The
American liberal=s
claim that any move towards devolution in civil rights will lead down a
slippery slope to moral tyranny betrays a profound ignorance of comparative
constitutional law.
Of
all countries, Canada affords the most useful comparison for the American
constitutional lawyer. With America, Canada shares a common border and legal
heritage, and both have federal systems of government. Yet the two countries
are leagues apart when it comes to constitutional liberties. Prior to 1982,
the Canadian Constitution did not
enshrine a Charter of Rights, and when the Charter was enacted in that year
its rights were made subject Ato
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.@
The phrase (which recalls the proviso of Justice Washington that we saw above)
was designed with the express purpose of excluding the civil rights absolutism
that characterizes American constitutional law. In addition, the Charter=s
Notwithstanding Clause (s. 33) permits a province to declare that a piece of
legislation is valid even though it contravenes the Charter=s
Fundamental Freedoms, Legal Rights or Equality Rights. By countenancing an
opt-out of its rights, the Canadian Charter more closely resembles the
Nullification doctrine and John C. Calhoun=s
constitution than the modern American version. In addition, the implicit
recognition of provincial secession rights in Canada has not had a parallel in
American constitutional law for at least 135 years.
There
is a lengthy debate in the Public Choice literature on the optimal division of
powers in a federal state. Such studies have examined whether the
responsibility over such matters as welfare, corporate and environmental law
is more efficiently assigned to the federal or state governments. However, the
question of which level of government should have the power to enact
substantive civil rights laws has received very little attention.
This omission is surprising, since the devolutionary Canadian regime would
appear superior to the centralized American one on abstract principles of
Public Choice.
There
are three reasons why the power to protect basic rights might more plausibly
be assigned to state than to national governments. First, diverse laws would
permit Americans to settle in jurisdictions whose policies match their
preferences. Where preferences are non-homogenous, the diversity of outcomes
means that migrants can sort themselves out by voting with their feet, and
this would increase preference satisfaction. Capital punishment supporters can
settle in Virginia, opponents in Maryland. Where migration is costless, and
there are no constraints on state opt-out rights, Charles Tiebout has shown
that the exit option of migration results in optimal government services.
Second,
state competition in the provision of basic rights might usefully signal which
set of rights is superior, as seen in Frederick Jackson Turner=s
Frontier Thesis.
We might therefore expect states to compete for valuable migrants through
their civil rights laws. States that indulge in a taste for discrimination
would likely be punished on migration markets, and states with superior laws
rewarded, as they were in Turner=s time. This may yield valuable information
about the best set of basic liberties. The stock of American constitutional
liberties today includes such sharply contested issues as school choice, where
reasonable men can and do differ. Once one abandons the assumption that the
best set of liberties can be determined through abstract ratiocination by an
academic clerisy, it becomes important to look for evidence as to optimal
laws. Locational choices made by citizens who vote with their feet provides
one of the best sources of evidence about the relative merit of differential
state laws, and this evidence is lost when rights are nationalized.
The
third reason why basic liberties should be a state law matter, on theories of
Public Choice, is that legislative authority should be assigned to the level
of government that captures all of the benefits and bears all of the costs of
its laws. On this basis, the power to raise an
army to defend the country should be assigned to the national government.
But the benefits and burdens of basic civil rights would seem at first glance
to be felt primarily by in-state residents. Whether Virginia subsidizes
parochial schools will matter a great deal to Virginia parents, and much less
to Californians. Thus the arguments for assigning the responsibility for
enacting such laws to the state level would appear as strong here as they are
for basic contract law.
There
is nevertheless one cost to the devolution of basic rights which has almost
entirely been forgotten, and this is the weakening of nationalist bonds.
Nationalism is a public good, whose benefits spill across state lines to reach
national borders. When constitutional rights are a national symbol, and where
there are substantial regional differences in civil rights law, this may
impose the external costs of weakening nationalist sentiments.
Lincoln
understood this, for he felt the strains
that slavery placed upon the loyalty sentiments of abolitionist Whigs in
antebellum America. In a letter to James Speed he wrote:
I
confess that I hate to see [slaves] hunted down, and caught, and carried back
to their stripes, and unrewarded toils; but I bite my lip and keep quiet. In
1841 you and I had together a tedious low-water trip, on a Steam Boat from
Louisville to St. Louis. You may remember, as I well do, that from Louisville
to the mouth of the Ohio there were, on board, ten or a dozen slaves, shackled
together with irons. That sight was a continual torment to me; and I see
something like it every time I touch the Ohio, or any other slave-border. It
is hardly fair for you to assume, that I have no interest in a thing which
has, and continually exercises, the power of making me miserable. You ought
rather to appreciate how much the great body of the Northern people do crucify
their feelings, in order to maintain their loyalty to the Constitution and the
Union.
When
the differences in civil rights are profound, as Lincoln noted famously, the
nation is a house divided that cannot stand. But even where the differences
are less great, the sense of common nationhood might weaken when devolution
results in a checkerboard of basic rights and the vision of a national icon is
blurred. Like Canadian provinces, American
states might refrain from effecting broad changes in basic rights, since
liberal norms are deeply embedded in every region of the country. However, the
threat to a national symbol argues for prudence in the devolution of
constitutional rights.
D.
Leaving Politics for the Legislatures
When basic rights are accorded
constitutional protection, courts sometimes succumb to the temptation to
expand their scope, arrogating greater authority to themselves and shrinking
the boundary of the political. Many scholars have suggested that American
courts have overstepped the bounds of their competence, judicializing what are
essentially political questions. Courts stand above democratic debate, and
might clumsily choke off public deliberation on an issue. Once cast as a
constitutional right, a legal result is ossified and not so readily corrected
as a legislative mistake. Legislatures also have far greater ability than
courts to marshal information about the likely effects of a legal rule.
All of this argues for prudence
before constitutionalizing a political issue. In addition, when constitutional
rights are a national symbol, there is a further cost.
Charles Taylor has noted the corrosive effect of constitutional debates that
turn into cultural wars. Losers find themselves marginalized, their deepest
beliefs dismissed as irrelevant or even un-American. Though an outsider,
Taylor sympathized with their frustration:
I
suspect that a good part of the anger comes not from the measures themselves,
but from what they see as the attitudes lying behind these measures. That is
because they identify the Aliberal@
philosophy which has dictated these measures as in its very essence
dismissive, and even sometimes contemptuous of what their lives are centered
on. They are not only being asked to make a sacrifice, they are being told
that they are barbarians even to see this as a sacrifice.
In Lincoln=s
time, the corrosive issue was slavery; in our time it is problems of abortion
and church and state. If those on the losing side of the constitutional debate
are seen as Aun-American,@
their sense of patriotism may waiver and national bonds may weaken.
The argument from nationalism may therefore be seen to cut both ways.
It suggests a prudential limit to devolutionary trends, and thus might appeal
to liberals; but it also suggests the desirability of a thinner set of basic
rights and the need to maintain a wall of separation between the
constitutional and the political, and this will appeal to conservatives.
V. The Strange Death of Liberal
Nationalism
The
Saenz decision suggests that academic lawyers might usefully reconsider
their understanding of American constitutional rights. Such rights are
ordinarily seen from a universalist perspective, as a statement of the rights
that all individuals should be granted, without regard to their nationality. I
have argued for a narrower conception of constitutional privileges and
immunities, as patriotic icons particular to this country. Americans would
appear to reserve their deepest feelings of loyalty not to pure symbols, such
as the flag, but to their understanding of constitutional rights and to the
belief that their country has a unique commitment to their protection.
This analysis of national rights
has four implications for the contours of constitutional freedoms. First, it
suggests that the mobility rights the Saenz court upheld deserve the
high degree of protection they received in that case. Second, it assists in
understanding cases where the Supreme Court has been faulted for offering
insufficient protection for national symbols such as the flag. Third, it
suggests that basic liberties should enjoy constitutional protection at the
national level and that there is a prudential limit to current devolutionary
trends. Fourth, it suggests a need for caution in turning contentious
political questions into constitutional rights. In politics, there are only
winners and losers, and there is no great shame in being a loser; but in
American constitutional law the losers can be faulted for a want of loyalty to
core American values, and this would plausibly weaken the bonds of allegiance.
Nationalist
principles were deeply ingrained in a previous generation of constitutional
scholars. In the modern academy, however, the nationalist voice is stilled, and
the liberal nationalism of Washington, Hamilton, Lincoln and Theodore and
Franklin Roosevelt forgotten. On the left, nationalism conflicts with preferred
modes of discourse, which are abstract and universalist, and is seen as burdened
with questionable political baggage. On the right, the emphasis on quantitative
methods darkens windows that open only to qualitative judgement. Not everything
that counts can be counted, said Einstein, but this warning is often ignored.
Matthew Arnold made a similar point. There are many things we do not understand,
he observed, unless we understand that they are beautiful. So too, in the study
of constitutional law, there are things we do not understand unless we
understand that they are loved.
F.H. Buckley & Margaret F. Brinig, Welfare Magnets: The Race for
the Top, 5 Sup. Ct. Econ. Rev. 141 (1997).
526 U.S. 489, 143 L. Ed. 2d 689, 119 S. Ct. 1518 (May 17, 1999).
83 U.S. 36, 21 L. Ed. 394 (1873).
While I use Apatriotism@
and Anationalism@
interchangeably, they mean different things. Patriotism is the virtue of an
individual, and nationalism more the popular sentiment of a group. In
addition, patriotism refers to a state and nationalism to a culture or
nation-state. One may be a patriotic Canadian and still subscribe to the deux
nations view of the country. Nationalism also refers to a belief in the
right of national self-determination. See Michael Ignatieff, Blood and
Belonging: Journeys into the New Nationalism 145 (New York: Farrar, Straus
& Giroux, 1993). For the purposes of this article, however, it seems to
me more confusing to distinguish than to conflate the two terms.
Michael Lind, The Next American Nation: The New Nationalism and the
Fourth American Revolution 6 (New York: Free Press, 1995). For an
introduction to the place of nationalism in the American intellectual
tradition, see Michael Lind, Hamilton's Republic: Readings in the American
Democratic Nationalist Tradition (New York: Free Press, 1997).
Americans are reported to be amongst the most patriotic people in the
world. Seymour Martin Lipset, American Exceptionalism 20, 51-52 (New York:
Norton, 1996).
For studies that stress the uniqueness of American nationalism=s
identification with constitutional ideals of liberty, see Seymour Martin
Lipset, American Exceptionalism 20-21 (New York: Norton, 1996); Liah
Greenfield, Nationalism: Five Roads to Modernity 401-23, 484 (Cambridge:
Harvard, 1992); Yehoshua Arieli, Individualism and Nationalism in American
Ideology (Cambridge: Harvard, 1966). See further text at notes XX-XX. On the
unique place of the Constitution in American popular culture, see Michael
Kammen, A Machine That Would Go of Itself: The Constitution in American
Culture (New York: St. Martin=s,
1994).
Pauline Maier, American Scripture: Making the Declaration of
Independence (New York: Vintage, 1997).
ANo
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States....@
Margaret F. Brinig & F.H. Buckley, The Market for Deadbeats, 25
J. Legal Stud. 201 (1996) reported a significant welfare predictor for both
in-migration (positive) and out-migration (negative), with a non-trivial
elasticity in both cases. See also Rebecca M. Blank, The Impact of State
Economic Differentials on Household Welfare and Labor Force Behavior, 28 J.
Pub. Econ. 25 (1985); Robert Moffitt, Incentive Effects of the U.S. Welfare
System: A Review, 30 J. Econ. Litt. 1 (1992).
Paul E. Peterson, The Price of Federalism 108-28 (New York: Twentieth
Century Fund, 1995); Paul E. Petersen & Mark C. Rom, Welfare Magnets: A
New Case for a National Standard (Washington: Brookings, 1990).
Supra note X. Studies that report the contrary have serious design
flaws. Id.
Green v. Anderson, 811 F.Supp. 516 (E.D. Ca. 1993).
Anderson v. Green, 513 U.S. 557, 130 L.Ed. 2d 1050, 115 S. Ct. 1059
(1995).
One of the issues for determination, which I do not consider in this
Article, was whether Congressional action cured the constitutional problem.
The Court held that it did not.
394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969).
Edwards v. California, 314 U.S. 160, 86 L. Ed. 119, 62 S. Ct. 164
(1941).
Lest this be thought a necessary feature of all federal regimes, one
should note that the federal government that most closely resembles the
United States gives one province--Québec--a substantial say in the choice
of immigrants who express a desire to settle in that province. See F.H.
Buckley, AThe
Market for Migrants,@ in J.S. Bhandari and A.O. Sikes, Economic Dimensions in International
Law: Comparative and Empirical Perspectives 405, 440 (Cambridge: Cambridge,
1997).
Robert H. Bork, The Tempting of America: The Political Seduction of
the Law 166 (New York: Touchstone, 1990).
83 U.S. 36, 21 L. Ed. 394 (1873).
As all such rights might properly belong to citizens under Art. IV=s
Comity Clause, however, it is not clear what the Privileges or Immunities
Clause added. For an argument that the Slaughter-House Cases wholly
emasculated the Privileges or Immunities Clause, see Charles L. Black Jr., A
New Birth of Freedom 65-66 (1997). For a contrary view, see K.C. Newsom,
Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House
Cases, 109 Yale L.J. 643 (2000).
Colgate v. Harvey, 296 U.S. 404, 56 S. Ct. 252, 80 L. Ed. 2998
(1935); overruled in Madden v. Kentucky, 309 U.S. 83, 60 S. Ct. 406, 84 L.
Ed. 590 (1940).
Id. See further Jacobus tenBroek, Equal Under Law 189-90 (New York:
Collier 1965); Amar, supra, 178-79; Michael Kent Curtis, No State Shall
Abridge (Durham: Duke, 1986); John Hart Ely, Democracy and Distrust: A
Theory of Judicial Review 28 (Cambridge: Harvard, 1980); Laurence H. Tribe,
Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the
Future--Or Reveal the Structure of the Present, 113 Harv. L. Rev. 120, 184
(1999); Kimberly C. Shankman & Roger Pilon, Rethinking the Privileges or
Immunities Clause To Redress the Balance Amongst States, Individuals, and
the Federal Government, 3 Tex. Rev. Law & Pol. 1 (1998); Richard L.
Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J.
57 (1993).
119 S. Ct. at 1526 (quoting 75 U.S. 168, 180).
Id. at 1530 (quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511,
523 (1935)).
Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill
of Rights?, 2 Stan. L. Rev. 5 (1949). More recently, John Harrison has
argued that the Privileges and Immunities Clause should be confined to
antidiscrimination norms. John Harrison, Reconstructing the Privileges and
Immunities Clause, 101 Yale L.J. 1385 (1992). See also Raoul Berger, The
Fourteenth Amendment and the Bill of Rights (Norman: Oklahoma, 1989); James
E. Bond, The Original Understanding of the Fourteenth Amendment in Illinois,
Ohio, and Pennsylvania, 18 Akron L. Rev. 435 (1985).
The number of Civil War dead remains greater than the number of
Americans killed in all prior and subsequent wars. The Union lost 360,000
men out of a population of 20 million; Southern losses were proportionately
higher still. Ten percent of the North=s
citizens served in the Union forces. Union veterans organized themselves as AThe
Grand Army of the Republic@
to preserve the memory of the fallen and the ideals of freedom for which
they had striven, and by the 1866 Congressional elections they were a
powerful national force. Cecelia O=Leary, To Die For: The Paradox of American Patriotism 28-41 (Princeton:
Princeton, 1999).
A review of letters from the field concludes that, to a remarkable
extent, Union soldiers saw the defense of liberty as a central purpose of
the War. James M. McPherson, What the Fought For 1861-65 (Baton Rouge: LSU,
1994); James M. McPherson, For Cause and Comrades: Why Men Fought the Civil
War 19-21, 105-06 (New York, 1997). See also Karl J. Hess, Liberty, Virtue,
and Progress: Northerners and Their War for the Union (New York: NYU, 1988).
Eric Foner, The Story of American Freedom 106 (New York: Norton,
1998).
Congressional Globe, 39th Cong, 1st Sess. 1090 (Feb. 28, 1866). See
also Charles Sumner, Are We a Nation?, in 16 Collected Works 7-65 (Boston:
Lee and Shepard, 1870-83) [1865].
Congressional Globe, 39th Cong, 1st Sess. 1089 (Feb. 28, 1866).
83 U.S. at 116 per Bradley J.
Quoted in Alfred Avins, The Reconstruction Amendments= Debates 177-78 (Richmond: Virginia Commission on Constitutional
Government, 1967).
Congressional Globe, 39th Cong, 1st Sess. 1093 (Feb. 28, 1866) (Sen.
Bingham).
Along with his more radical colleagues, Sen. Bingham argued that the
Privileges or Immunities Clause would derogate from state powers and give
Congress the power to enforce the Bill of Rights in the states. See Cong.
Globe, 39th Cong., 1st Sess. 1089-90 (Feb. 28, 1866); Cong. Globe, 39th
Cong., 1st Sess. 2542 (May 10, 1866).
For a balanced overview of the framers=
intentions, see Earl M. Maltz, Civil Rights, the Constitution, and Congress,
1863-1869 93-120 (Lawrence: Kansas, 1990); for a less balanced view that
emphasizes their conservatism, see Berger, supra note X.
Joseph James, The Framing of the Fourteenth Amendment 167 (Urbana:
Illinois, 1965).
For a compelling account of the power of libertarian rhetoric during
the War, see Foner, supra note X, at 219-40. The change in the balance of
power between state and federal governments began before the Second World
War. During the Progressive Era and the Great Depression, it became
fashionable to favor Ascientific
planning@
of the economy by the national government. Yet a strong current of support
for States=
Rights remained until World War II. See Michael Kammen, Sovereignty and
Liberty: Constitutional Discourse in American Culture 157-88 (Madison:
Wisconsin, 1988).
Hans Kohn, American Nationalism: An Interpretive Essay 8 (New York:
Macmillan, 1957).
Robert Penn Warren, The Legacy of the Civil War: Meditations on the
Centennial 78 (New York: Random House, 1961).
Wendell L. Willkie, One World 192 (New York: Simon & Schuster,
1943).
See Everett C. Ladd, The Ladd Report 149-51 (New York: Free
Press,1999).
The phrase is Yael Tamir=s.
See Yael Tamir, Liberal Nationalism (Princeton: Princeton, 1993).
Gellner, Nationalism at 74. Charles Taylor is broadly sympathetic to
Gellner=s
functionalism. Charles Taylor, ANationalism
and Modernity,@
in John A. Hall (ed.), The State of the Nation 191 (Cambridge: Cambridge,
1998).
A particularist rule is agent-relative and not agent-neutral, as
those terms are used by Derek Parfit. An agent-neutral duty is not
contingent with respect to time or place; an agent-relative rule imposes
different duties on different people. Derek Parfit, Reasons and Persons 55
(Oxford: Oxford, 1984). From a utilitarian perspective, agent-relative rules
like the special duty to support one=s
family or country are morally binding if abandoning such rules can be
expected to diminish social welfare. One way of thinking about this is to
ask whether it is a good thing that we have the predisposition to favor our
nation over other countries, a subject I take up in the next Section.
Charles L. Black, Jr., A New Birth of Freedom: Human Rights, Named
and Unnamed 156 (New York: Grosset / Putnam, 1997).
Michael Walzer defends this understanding of fidelity to national
rights in Spheres of Justice: A Defense of Pluralism and Equality 313-14
(New York: Basic, 1983
Jeremy Waldron, Particular Values and Critical Morality, 77 Calif. L.
Rev. 561, 576 (1989).
The motto of Action Française, Charles Maurras=
royalist journal.
Ernest Gellner, Nations and Nationalism 18 (Ithaca: Cornell, 1983).
Peter Brimelow, Alien Nation: Common Sense about America=s
Immigration Disaster (New York: Random House, 1995). Though the prescription
might vary, the desire to preserve America=s
cultural heritage as the cement of national unity cuts across traditional
political lines. Arthur M. Schlesinger Jr., The Disuniting of America:
Reflections on a Multicultural Society (New York: Norton, 1992).
Will Kymlicka, Liberalism, Community and Culture (Oxford: Oxford,
1989); Tamir, supra note X. It might also justify balancing an open-door
immigration policy with strong efforts to assimilate immigrants in a
national melting pot. AIt
is one of history=s little ironies that no polyglot empire of the old world has dared to
be so ruthless in imposing a single language upon its whole population as
was the liberal republic >dedicated
to the proposition that all men are created equal=.@
Gerald Johnson, Our English Heritage 119 (Westport: Greenwood, 1973).
Michael Walzer, Spheres of Justice: A Defense of Pluralism and
Equality 40 (New York: Basic, 1983).
One of the ironies of the conservative position is that cultural
conservatives have often been the fiercest critics of American culture. See
Robert M. Crunden (ed.), The Superfluous Men: Conservative Critics of
American Culture 1900-1945 (Wilmigton: ISI, 2d ed. 1999); or see any issue
of The New Criterion.
The celebrated phrase is that of Benedict Anderson, Imagined
Communities (London: Verso, rev. ed. 1991). A[T]he
essence of a nation,@
said Renan, Ais
that all of the individuals have much in common, and also that they have all
forgotten many things.@
Ernest Renan, AQu=est-ce
qu=une
nation?@
reprinted in Homi K. Bhabha (ed.), Nation and Narration 8, 11 (New York:
Routledge, 1990).
6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1825).
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 169
(New Haven: Yale, 1998).
Here, as elsewhere, political labels may mislead. The conservative
imperialist will also object to nationalism (better Franz-Joseph than either
Tito or Milosovitch), as will the traditionalist such as Christopher Dawson
who regrets the loss of European or Christian unity. Nevertheless, the
labels are useful, for the rise of nationalism can be seen as a conservative
counter-revolution against the Enlightenment project and eighteenth century
universal ethics. See Isaiah Berlin, The Roots of Romanticism (Princeton:
Princeton, 1999); Ernest Gellner, Nationalism (New York: NYU Press, 1997).
For statements of the anti-nationalist position. see Martha C.
Nussbaum, APatriotism
and Cosmopolitanism,@
in Joshua Cohen (ed.), For Love of Country: Debating the Limits of
Patriotism 3, 15 (Boston: Beacon, 1996); Paul Gomberg, Patriotism Is Like
Racism, 101 Ethics 144 (1990).
Robert E. Goodin & Philip Pettit, AIntroduction,@
in A Companion to Contemporary Political Philosophy 1, 3 (Oxford: Blackwell,
1993). For an amusing review of the the Goodin-Petit book, see John Gray,
Notes toward a definition of the political thought of Tlön,@
in Enlightenment=s
Wake: Politics and Culture at the Close of the Modern Age 11 (London:
Routledge, 1995) (likening the academic liberal=s list of pressing political problems to those of an imaginary world).
The example is taken from Alasdair MacIntyre, Is Patriotism a Virtue
3 (Lindley Lecture, University of Kansas, 1984).
From
the perspective of the political leader, this might be seen as a
self-binding device that elicits stronger loyalty from his citizens because
they have less reason to fear that their nationalism will be manipulated. George
Fletcher notes that, on the return to civilian rule in 1983, Argentina=s
new leaders replaced the military=s
oath of allegiance. Formerly they swore their loyalty to their country;
afterwards they swore to uphold the country=s
liberal constitution. George P. Fletcher, Loyalty: An Essay in the Morality
of Relationships 62-63 (New York: Oxford, 1993).
George Orwell, AWhat
Has Kept England on its Feet?,@
in The Penguin Essays of George Orwell (London: Harmondsworth, 1984).
Big
brains are very expensive organs, relative to the rest of our body.
They
take 22 times as much energy as an equivalent amount of muscle requires when
at rest. Steven Mithen, The Prehistory of the Mind: A Search for the Origins
of Art, Religion, and Science 11 (London: Thames and Hudson, 1996). At rest,
the nervous system consumes about 20% of the body=s oxygen system, but only 2% of the body=s
mass. Paul M. Churchland, Matter and Consciousness: A Contemporary
Introduction to the Philosophy of Mind 36-37 (Cambridge: MIT Press, 1986).
Sir Isaiah Berlin, The Crooked Timber of Humanity 245 (Princeton:
Princeton, 1990).
This
resembles the third defense of nationalism, for both regard ties of
solidarity to fellow-citizens as beneficial. The difference is that the
third defense saw solidarity as an ultimate human good, while the fourth
defense sees it as an instrumental good, and valuable insofar as it permits
co-nationals to exploit opportunities for gain.
Margaret F. Brinig & F.H. Buckley, No-Fault Laws and At-Fault
People, 18 Int. Rev. Law & Econ. 325 (1998); F.H. Buckley & Margaret
F. Brinig, The Bankruptcy Puzzle, 7 J. Legal Stud. 187 (1998).
The reference is to Robert H. Frank, If Homo Economicus Could Choose
His Own Utility Function, Would He Want One with a Conscience?, 77 Am. Econ.
Rev. 593 (1987).
See Lee
A. Dugatkin, Cooperation Among Animals: An Evolutionary Perspective 33 (New
York: Oxford, 1997)
Which raises the question why our emotions are structured in such a
way that we cannot receive nationalism=s
benefits (shared language and customs) without also incurring its burdens
(the willingness to defend one=s
nation). However, the revival of group selection
theories in evolutionary biology suggests an explanation for a
benefits-and-burdens view of nationalism. ANew@
or trait group selection theories model how cooperative norms might evolve
when the increased productivity of groups with many cooperators outweighs
the private benefit to being selfish. Such theories are very tentative and
have yet to be tested, but nevertheless suggest a way in which cooperative
emotions such as nationalism might take hold. See Lee Alan Dugatkin,
Cooperation among Animals: An Evolutionary Perspective 165 (New York:
Oxford, 1997); David S. Wilson and E. Sober, Re-introducing Group Selection
to the Human Behavioral Sciences, 17 Behav. and Brain Sci. 585-654 (1994).
See Yael Tamir, APro
Patria Mori: Death and the State,@
in Robert McKim & Jeff McMahan (eds.), The Morality of Nationalism 227,
239 (New York: Oxford, 1997).
Suppose
that, for whatever reason, it is costly to reveal information, and suppose
further that these signaling costs are differentially born by true and false
signalers: signaling is costly for both, but much more costly for the false
signaler. Where these costs exceed his expected gains from signaling, he has
no incentive to signal. However, it may be otherwise for true signalers who
have lower signaling costs and whose signaling gains might exceed signaling
costs. Game theorists call this a separating equilibrium: only the
true signaler has an incentive to signal, and his signal is therefore
credible. In a pooling equilibrium, by contrast, true and false
signalers have the same signaling incentives and cannot be told apart on the
basis of their signaling decision. See
Michael A. Spence, Job Market Signaling, 87 Quarterly Journal of Economics
355 (1973). See Eric Rasmusen, Games and Information: An Introduction to
Game Theory 205-11 (Cambridge: Blackwell, 2d ed. 1994).
The
principal manner by which emotions are signaled is through facial
expressions. Facial signals reveal our deepest feelings to others, and
permit them to make reliable inferences about our future behavior. The
pioneer work on facial signaling was done by Charles Darwin in The
Expression of the Emotions in Man and Animals 202 (New York: Oxford, 1998)
[1872]. See also Paul Ekman & Erika L. Rosenberg, What the Face Reveals
201 (New York: Oxford, 1997); Paul Ekman, Telling Lies: Clues to Deceit in
the Marketplace, Politics, and Marriage (New York: Norton, 1985).
As
Eric Posner notes, there are a variety of possible equilibria. Eric A.
Posner, Social Norms, Social Meaning, and the Economic Analysis of Law, 27
J. Legal Stud. 765 (1998). This is particularly so when we allow for
differential abilities to signal falsely. One possible equilibrium is a
society formed of a large majority of
true signalers and a small minority of Aexceptionally
good liars.@
The former will specialize in lie-detection and the latter in false
signaling. Where the payoffs from the two strategies are the same, the
parties are in equilibrium, since no one has an incentive to switch from one
strategy to the other. For evidence about differing abilities to hide one=s
emotions, see Robert J. Edelmann, The Psychology of Embarrassment
(Chichester, UK: Wiley, 1987).
This
analysis resembles the Becker-Murphy model of Arational
addiction.@
See Gary Becker & Kevin Murphy, A Theory of Rational Addiction, 96 J.
Pol. Econ. 675 (1988), reprinted in Gary Becker,
Accounting for Tastes (Cambridge: Harvard, 1996). As in Becker-Murphy, past consumption of nationalism
increases the instantaneous marginal utility of new nationalist
experiences, without producing the negative internalities where past
consumption decreases the instantaneous total utility from current
consumption. In this sense, the addiction is Abenign.@
The
signaling costs of allegiance to constitutional liberties might also be
socially wasteful, in the sense that such costs exceed the social benefits
of signaling. Suppose that the gains from promoting nationalism are exceeded
by the costs that result from an inefficient constitutional right. In that
case, all parties are better off if they move to a pooling equilibrium, in
which allegiance to a flawed set of rights is not taken to signal
patriotism. However, the parties might be unable to coordinate around a
pooling solution, since the private payoff from supporting the
constitutional rights might exceed the private benefits of abandoning them.
See Sam Rea, Arm-breaking, Consumer Credit, and Personal Bankruptcy, 22
Econ. Inquiry 188 (1984). These costs are described as Aself-censorship@
by Timur Kuran, who notes that an oppressive regime is more likely to
survive when no individual is willing to voice political criticism. Timur
Kuran, Private Truths, Public Lies (Cambridge: Harvard, 1995). The costs of
the House of Windsor as a signaling device might then seem a bargain, when
compared to the costs of excessive constitutional protections.
See F.H. Buckley, AThe
Market for Migrants,@ in J.S. Bhandari & Alan O. Sykes, Economic Dimensions in
International Law: Comparative and Empirical Perspectives 405 (Cambridge:
Cambridge, 1997).
Frederick Jackson Turner, The Frontier in American History (reprint
1986) [1893].
Margaret F. Brinig & F.H. Buckley, The Market for Deadbeats, 25
J. Legal Stud. 201 (1996); F.H. Buckley, The American Fresh Start, 4 S. Cal.
Interdisciplinary L.J. 67 (1994).
Of course, a Québec nationalist would have a very different
perspective on Bill 101 and the Charter.
Starns v. Malkerson, 401 U.S. 985, 28 L. Ed. 2d 527, 91 S. Ct. 1231
(1971); Sturgis v. Washington, 414 U.S. 1057, 38 L. Ed. 2d 464, 94 S. Ct.
563.
Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975).
Rosario v. Rockefeller, 410 U.S. 752, 36 L. Ed. 2d 1, 93 S. Ct. 1245
(1973).
Eric Rasmusen, The Economics of Desecration: Flag Burning and Related
Activities, 27 J. Legal Stud. 245 (1998).
Texas v. Johnson, 491 U.S. 397 (1989).
Printz v. United States, 521 U.S. 898 (1997) (striking down portions
of the Brady Handgun Violence Protection Act that required state government
officers to assist in enforcing the federal law).
United States v. Lopez, 514 U.S. 549 (striking down the Gun Free Zone
Act of 1990).
Canadian Charter of Rights and Freedoms, s. 1, Constitution Act, S.
Can. 1982, enacted as Canada Act, 1982, 31 Eliz. II, c. 11 (U.K.). In recent
decisions, an activist Canadian Supreme Court has called into question the
weight that will be accorded to this clause. For example, the Court held
that the Alberta Human Rights Code should be deemed to ban discrimination on
the basis of sexual preference, even though both the Code and the Charter
were silent on the matter. Vriend v. Alberta, Ca. Sup. Ct. LEXIS 19, April
2, 1998.
For a notable exception, see Nelson Lund, Federalism and Civil
Liberties, 45 U. Kansas L. Rev. 1045 (1997).
As
Madison understood, in Federalist No. 45. Of course, constitutions should
not be erected on abstract principles. A country=s
history matters, and the American experience with civil rights must give the
devolutionist pause before he recommends a Canadian solution. Yet the
assumption that a Supreme Court will invariably get it right, and that state
legislatures have a built-in disposition to enact illiberal laws, seems
facile and naive. Virtually all state civil rights legislation would likely
fall within general liberal bounds. The Canadian experience since 1982
(where the Notwithstanding Clause has been invoked only twice) suggests that
state opt-outs in America would not be
the fearsome thing today that they were in the time of Senator Calhoun.
See P.W. Hogg & A.A. Bushell, The Charter Dialogue Between Courts and
Legislatures (Or Perhaps The Charter Of Rights Isn't Such A Bad Thing After
All), 35 Osgoode Hall L.J. 75 (1997). To the extent that differences might
arise, states could be expected to fall on both sides of the mean, with some
states taking the more liberal position on such issues as gun control and
the death penalty.
The modern theory of voting with one=s
feet dates from C.M. Tiebout, A Pure Theory of Local expenditures, 64 J.
Pol. Econ. 416 (1956). For a review of more recent scholarship, see Dennis
C. Mueller, Public Choice II 154-70 (1989). Migration flows are substantial
in the United States. In the 1990 census, about 40% of Americans were living
in a state other than the one in which they were born. Kristin A. Hansen,
1990 Selected Place of Birth and Migration Statistics for States, Table 1
(Bureau of the Census, 1991).
Supra text at notes XX-XX.
See Albert Breton & Anthony Scott, The Economic Constitution of
Federal States 37-39 (Toronto: Toronto, 1978).
A point that John Marshall realized as an officer in an underfunded
Revolutionary army. Marshall=s
federalism was born of the conviction that Astate
particularism and national weakness were as deadly as British musket fire.@ R.
Kent Newmyer, AJohn
Marshall, Political Parties, and the Origins of Modern Federalism,@
in Harry N. Scheiber (ed.), Federalism: Studies in History, Law, and Public
Policy 19 (Berkeley: Institute of Intergovernmental Studies, 1988).
Quoted in Edmund Wilson, Patriotic Gore: Studies in the Literature of
the American Civil War 110 (New York: Norton, 1994) [1962].
For statements of prudential objections to judicial activism, see
Alexander Bickel, The Supreme Court and the Idea of Progress 175 (New York:
Harper & Row, 1970); Robert H. Bork, The Tempting of America: The
Political Seduction of the Law 187-206 (New York: Simon & Shuster,
1990); James Buchanan, Book Review, Good Economics -- Bad Law, 60 Va. L.
Rev. 483 (1974).
Charles Taylor, ALiving
with Difference,@ in Anita L. Allen & Milton C. Reagan, Debating Democracy=s
Discontent: Essays on American Politics, Law, and Public Philosophy 212, 216
(Oxford: Oxford, 1998)
Jay Silberman, Wrong Fix for D.C. Public Schools, Wash. Post, June
11, 1995, at C8; Mario Caruso, AUn-American@,
Chicago Tribune, March 8, 1991 at C22.