Resisting the Sovereign

The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty
By Stephen L. Carter
Harvard University Press. 167 pp. $19.95

This spring the American media gave considerable attention to critics of the Vatican statement on the Holocaust, “We Remember.” A conspicuous line of criticism was that the Vatican, by opting for quiet diplomacy and covert aid to some Jews, was complicitous in the unjust acts of the fascist governments. Pope Pius XII’s failure of conscience was in his refusal to publicly disobey. A New York Times Magazine article on the subject went so far as to question what Karol Wojtyla was doing in Krakow during the Nazi occupation. Was he too quiet in the face of injustice?

The same week that the Sunday Times ran the article on the need for papal atonement for not defying the German government, a Times editorial gave at least mild approval to the criminal conviction of pro-life leaders under the Racketeer Influenced and Corrupt Organizations Act (RICO). The pro-lifers were found guilty of conspiratorial networking to threaten property and to attempt extortion. The federal court rejected the defendants’ defense that they acted on a “moral imperative” to protect the rights of innocent third parties. They were not seen as mere civil disobedients, perhaps to be punished for having broken laws in the name of conscience, but were deemed racketeers, gangsters, terrorists.

What lesson can we draw? Had Pius XII defied the government, and been hanged by the Gestapo, he would be esteemed a hero of conscience. Today, were one of the bishops to take the much less radical step of inciting protests against abortion clinics––not for the purpose of defying the regime, but of challenging the law––he could be considered a gangster. So could Martin Luther King and the SCLC, whose sit-ins and strikes made small businesses in the South pay an economic price for racial discrimination.

In Dissent of the Governed, Stephen Carter points out that Americans do not believe in political trials. So, what is to be done with religious dissenters who protest the sovereign’s understanding of the social contract? We cannot treat them as traitors and political subversives because that would come uncomfortably close to political trials. On the other hand, they cannot be regarded by analogy to the civil rights movement, because that would leave open the possibility that the sovereign is wrong. Nor does it seem quite right to say, “America––Love it or Leave It,” which of course triggers some unwelcome memories. The current response is, according to Carter: “Get some new laws! RICO ‘em!” He contends that the rough treatment of pro-life activists is but one example of the increasingly serious conflict between religious conscience and “liberal constitutionalism.” Dissent of the Governed covers some of the same ground as the author’s earlier book, The Culture of Disbelief (1993), where Carter showed how the governing class misunderstands and, at law, misrepresents religion as one lifestyle option among others. Carter argued that we cannot understand why the framers of either the federal or state constitutions would have troubled themselves to recognize special rights of religion were it put on the same level with, let’s say, alpine hiking or massage therapy. The new book explores what happens when that misunderstanding prevails and believers are put into the position of dissent.

The new book is based on a set of lectures given at Harvard during President Clinton’s first term. Carter explains that the immediate background was the Branch Davidian debacle at Waco, the bombing at Oklahoma City, the militia movement, and the 1994 midterm congressional election. For his Cambridge audience, Carter wants to give an ominous report from the front: “I worry that the country is in the throes of a massive act of disallegiance, of which the 1994 elections were but the merest spasm.” Given the political hibernation of the body politic since those headlines, the warnings about angry disobedience now seem a bit silly. But Carter’s argument transcends the headlines.

The three lectures––Allegiance, Disobedience, Interpretation––are organized around a proposal and then a question. The proposal is drawn from the Declaration of Independence, where we find the principle not only of the consent of governed, but also the dissent of the governed: “We have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.” Here, the colonists were not merely waxing philosophical, but were making a specific charge against the government: by answering the colonists’ petitions for redress of grievance with further injury (more taxes, interference with legislatures, and ultimately the criminalization of dissent), the Crown justly lost the allegiance of the governed.

Carter proposes that one important measure of the legitimacy of our regime is how it treats dissenters. Imagine now that we are speaking of the Court rather than the Crown. Are petitions for redress, he asks, met with further governmental acts and laws that have the effect, if not the purpose, of silencing the voice of dissent? Carter answers, yes. Liberal constitutionalism has evolved in a way such that the government again answers petitions with further injury, and with new rules that put the dissenter outside the bounds of permissible political debate and action. Carter argues that the law of the “liberal sovereign” tends to be “totalizing,” becoming a kind of “fundamentalism” that hears no voice but its own. We shouldn’t be surprised, he points out, that religion would end up on the wrong side of this development.

Carter traces the problematic development of liberal constitutionalism to two things, neither of which pertains immediately to religious issues. First, the U.S. government has evolved into a government of general jurisdiction, its powers limited chiefly by judicial interpretations of the Bill of Rights and the Fourteenth Amendment. Carter notes that “the liberal constitutional project has effectively stripped local political sovereigns of the structural ability to resist the national sovereign’s decrees.” Thus, a group that thinks it is getting a raw deal from the government has few options. As Albert Hirschman pointed out in Exit, Voice, Loyalty (1970), institutions respond to complaints insofar as critics have either exit or voice. Exit is especially effective. In the economic market, one can buy a different product; in politics, one can move to a different jurisdiction, or join a different party. But when the opportunity for exit is restricted, voice becomes all the more important.

This brings us to Carter’s second point. Our liberal polity has evolved in such a way that “voice” is funneled into one set of ears-the federal courts. The problem with this kind of constitutional politics is that the loser loses everything. Once one side wins the power of having its view embedded in the social contract, arguments to the contrary need not be answered on their merit; one already has a reason for dismissing critics on constitutional grounds, even when these decisions involve controversial matters of civil liberties. Just mounting a complaint betokens a bad will which, when tested, invites the courts to tighten and extend the grip of the law in further decisions.

Carter speculates that Americans are not more sympathetic to losers in this game because they believe the myth that the courts are not the sovereign. Everyone acknowledges that executive and legislative branches are organs of governing, but courts are usually thought to be a check upon the government––the rule of law is thought to check the power of the sovereign.

Carter punctures this myth by recalling the conflict between civil rights leaders of the 1960s and the courts. When Martin Luther King was writing from Birmingham Jail, he was incarcerated for having violated an ex parte court order; many otherwise sympathetic clergy were scandalized by his defiance of a court. When he appealed to the Supreme Court, complaining that he was denied the right to make a defense showing the law itself to be unconstitutional, the Court brusquely responded that “respect for judicial process... alone can give abiding meaning to constitutional freedom.” King rejected this doctrine of sola fide with respect to what courts deem the rule of law.

What has this to do with religion? If, as Ronald Dworkin says, the courts are the capitals of law’s empire and the judges its princes, America has become an empire that knows “nothing of Joseph” and his former services. While few wish to admit the fact, the voice of religion has been written out of its traditional role in American democracy, at least for now. Carter correctly points out that when disaffected religious citizens are told to take their case on abortion, school prayer, family planning, or whatever to the public forum, the recommendation is not sincere because liberal constitutionalism holds both in theory and practice that these things “should be outside the realm of politics.” Increasingly, believers retain their right of free exercise only when they repackage their claims in terms of free speech or privacy. And, as pro-life activists have been reminded, the sovereign will not necessarily think that suppressing protests against abortion constitutes a “chilling effect” upon speech. The question, then, is how the regime will treat the losers, and how the losers will comport themselves in their defeat.

Carter is surprisingly––I think, refreshingly––blunt in spelling out the problem. But when he turns to practical recommendations, his effort droops. At one point he says “we must find ways to clasp our many unruly yet nonviolent disobedients to our hearts, even as we disagree, sometimes vehemently, with the causes they espouse.” This strikes me as an invitation to further privatize the problem. For the courts, he recommends being more mindful of politics, especially with respect to the losers: “This implies a judicial duty to give a degree of consideration to the public reception of their work, a perhaps heretical claim in this era of judicial popularity, but a perfectly sensible one if one believes that courts, too, govern.” Actually, this is not a bad idea, but some readers will surely be troubled by the fact that Carter offers Casey as an example of the judiciary being sensitive to public opinion.

Perhaps due to its brevity, the book is soft on distinctions and analysis. Throughout the book, Carter distinguishes “disobedience” from “disallegiance,” arguing that a democracy like ours ought to accommodate more of the former while trying to discourage the latter. But Carter does not treat the acts that fall between those two poles. Is it “disobedient,” for example, to violate a law for the purpose of convincing a court to rule that the law was unconstitutional? If that counts as disobedience, then much of our constitutional law is a result of civil disobedience. The judge-made law of privacy leading to Roe was fashioned in response to physicians and activists who broke state anti-contraceptive laws in order to make a federal case of the issue. They did not admit guilt, but contended that the law was unconstitutional. Dr. King took the same position in Birmingham. Some clergy thought King was breaking the law only to make a moral point rather than a constitutional one. When they praised the police for “moderation” in dealing with the protestors, King angrily responded that it was the police, not the marchers, who acted illegally.

One wishes that Carter had discussed the different ways people might operate on the borderline of the law in petitioning for redress of grievance. Carter also does not dwell enough on the position of many religious believers that they are not making specifically theological arguments when they complain about the sovereign’s rulings, even its rulings on religion. A major complaint today is that the embargo on “religion” has come to include an embargo on conventional moral argument, not least the principles found in the Declaration of Independence.

These defects should not make anyone hesitate to read Dissent of the Governed. Looking at these issues from the standpoint of dissent gives a fresh perspective. For many readers, however, it will be far from obvious that the tables have been turned so decisively against religion as to justify treating disaffected believers as dissenters, and I suspect that most believers are not very eager to view themselves in that light. Partisans of liberal constitutionalism (as wrought by the courts) will be inclined to think that there is a principled, impartial reason why religion loses its contests with the sovereign. It will be difficult for the secular liberal to imagine that traditional religion is now the little guy being pounded by the system.

For similar reasons, it will be difficult for some conservatives to accept what Carter is suggesting. For one thing, the so-called “religious right” would seem to be fairly successful, maybe too successful, in bringing its agenda before the public. Some Republicans might ask themselves, where is the lack of “voice” for religious conservatives? For their part, the churches do not like to think of themselves as dissenters, and they usually try to convince political leaders that there exists a silent majority supporting their pro-religious policies and laws.

It is tricky business playing both sides, one rhetoric suggesting the role of a majority and another the role of marginalized dissenters. Pro-lifers, for example, can’t understand why the public at large refuses to see the analogy between their cause and the civil rights movement, but it could be argued that they don’t act like the civil rights movement. Dr. King understood that the majority was not on board, and he took considerable risks in the mode of dissent to win it over. Since there is almost nothing favorable to be said about civil disobedience from conservative quarters, where the inability to prosecute flag burners is a major issue, Carter’s touching on that subject will be alarming. Each of these occasions for arguing with Carter is a good reason for reading The Dissent of the Governed.

Russell Hittinger is the Warren Professor and Research Professor of Law at the University of Tulsa.