In recent years, the Secret Constitution has come to assert itself in the opinions, particularly the dissenting opinions, of the Supreme Court. If we are to understand the impact of our implicit postbellum commitment to the ideas of nationhood, democracy, and equality, we cannot limit ourselves to the jurisprudence of the nine justices who happen to sit on the Court in Washington. The Secret Constitution has, in fact, a much deeper grounding in American political and legal culture, and it has come to express itself in diverse arenas. It spontaneously percolates through civil society. It shapes the process of constitutional amendment; indeed, virtually every constitutional amendment enacted since the Civil War expresses, in one way or another, the values of the Secret Constitution. This is true as well of the two leading proposed constitutional amendments that have gained a large political following in the last decade: the proposal to protect the flag against “desecration” and the movement to protect victims of crime. The values of the Secret Constitution have also found their way into subconstitutional federal legislation based, as a technical matter, on the Interstate Commerce Clause, granting Congress authority to regulate commerce “among the states.”1 The earlier defeat in the Supreme Court of the Civil Rights Act of 1866 meant that Congress had to find other means of bringing to bear the same set of values in the pursuit of equal treatment in public facilities and in the workplace. In order to see the resurgence of the three great ideas of the Secret Constitution—nationhood, democracy, and equality—we have to look afield, away from the courts, to these diverse areas that give birth to legal trends and define the bedrock of the American Constitution.2
Constitutional Amendments
Of all the arenas in which the Secret Constitution has come to the fore, none is more impressive than the process of constitutional amendment. All of the amendments adopted and ratified over the last 135 years reveal the traces of a shared understanding, an unconscious plan, of what American government should be like. This is a remarkable thesis, for the general tendency is to assume that the amendments consist in a hodgepodge of special responses to unrelated problems.
The dominant theme is the spread of the franchise and the fine-tuning of the system of democratic representation. But there are other strains from the Secret Constitution as well. As we work our way through the amendments, from the Thirteenth to the Twenty-Seventh, we shall also see a countervailing principle at work. Democracy stresses the responsibility of the people for their self-governance. The offsetting principle is that the government must be strong, well financed, and act with a sense of compassion for the weak and defenseless. Our postbellum commitment to democracy is well known. Less well appreciated is the deep American sense of concern for those who are not able to fend for themselves. The final implication, then, of the Secret Constitution is the commitment of government to the dignity and self-esteem of all its citizens.
If we think of the Civil War as a moral drama, we cannot but perceive a government at work that is committed to the dignity of all. The drama can be narrowly understood as an enormous sacrifice of human life to liberate people held in the most demeaning condition imaginable. The war snuffed out one life, one being created in the image of God, for every seven slaves freed. There might have been a less costly way of solving the problem. Simply waiting and negotiating, we might have seen the market itself render the keeping of slaves too costly an enterprise. Industrialization spreading South might have made “free labor” a more appealing alternative for those who profited from the system of slave labor. The end of plantation capitalism might have come as safely as the demise of communism in Europe. But these possible scenarios are beside the point. The sacrifice did occur. And we thought it was necessary, as Lincoln preached, to cleanse us of our “offences” and to give the nation a “new birth of freedom.” We could not have survived this drama with anything but a sense that government was capable of a great moral undertaking. Government was no longer instituted simply to keep the peace, deliver the mail, and protect us from foreign enemies but also to ensure that we not descend into the kind of evil that seared the soul of the first American Republic. The period of the Civil War witnessed legislative measures that had never been seen before in the United States—the beginning of a national banking system, the issuance of a national currency, a homestead act that distributed 160 acres to each settler, and land grants for building universities. We incorporated this new understanding of government into the Thirteenth Amendment, which declared boldly that the particular kind of evil that had led to war would never again exist in the United States. To prevent this reoccurrence, the federal government would have to be strong and vigilant. It would have to observe the transactions that occurred in the marketplace to ensure that they did not approach the danger zone of “involuntary servitude.” The war itself and this consequent postbellum policy of necessary vigilance laid the foundation for the later expressions of compassion for the weak and defenseless.
From the Thirteenth to the Fifteenth Amendment, however, from 1865 to 1870, we can sense a sharp decline in the moral energy of government. Section 1 of the Fourteenth Amendment contains, of course, the invocations of “privileges and immunities,” “due process,” and “equal protection” that have engaged the Supreme Court and its academic commentators. But implicit in this 1868 amendment is the resurgence of the states’ responsibility for the events that occur within their borders. And Sections 2, 3, and 4 of the amendment contain time-specific provisions designed to penalize the disloyal states and rebel soldiers and officials. These vengeful provisions have caused much mischief, as we have seen, by providing fodder today for those who prefer denying the franchise to convicted felons.3 Still, the equal protection clause was a breakthrough and supplied the anchor for a cardinal principle of the postbellum legal order. And the due process clause would prove to be the umbrella that would enable the Supreme Court, in the last half-century, to develop a jurisprudence of human rights that applies to the entire country.
The framing of the Fifteenth Amendment suffered from the loss of moral ambition. Congress could have drafted the amendment simply to require the franchise for all persons above the age of 21. But that would have required a clear rationale for the democratic franchise, a clear principle telling us who should vote and why. At the most, we had a vague commitment to the new idea of democracy for the entire nation of Americans. The women’s suffrage movement had begun but it had little support. And it was not at all clear that emancipated slaves would receive the vote. Democrats were naturally fearful that the newly enfranchised blacks would vote for the party that promoted their liberation. Republicans in Congress pressed both for the vote for former slaves and for the disenfranchisement of disloyal members of the Confederacy. A new coalition, they hoped, would break the power of the landed élite and bring about a social revolution in the South. President Johnson himself identified with the class of small white farmers in Tennessee, who felt threatened by the potential rise of black political power in the South.
These political considerations played themselves out against ambivalent sentiments about who constituted the “people” in “government of the people, by the people, for the people.” Yet, we should not underappreciate the radical step of granting the franchise to emancipated slaves on the same terms as it was available to the rest of the population. This transformation of a slave population was unique in the history of revolutionary wars. The concept of popular democracy was beginning to take root. We should not forget that despite pretensions of a democratic founding in 1787, the idea that more than a dominant élite should vote was as foreign to the mind of the late eighteenth century as were the terms “American nation” and “equality.” Rule by the demos or the nation was, like equality, still unfolding as a way of life. It had no guiding theory—no rationale and no historical model. It was not at all obvious that the uneducated, propertyless masses should govern the country.
The entire constitutional structure drafted in 1787 needed revamping but, without a compelling theory to guide them, the political powers in Congress settled for the modest demand in the Fifteenth Amendment that the states not deny the franchise “on account of race, color, or previous condition of servitude.” It is hard to imagine a lesser demand on the states, consistent with the policy of treating the emancipated slaves as members of the nation with equal political rights.
The ensuing amendments also pursue the principles latent in the Secret Constitution. The Sixteenth Amendment, ratified after a lapse of forty-five years, recognized the legitimacy of the income tax. The government had already experimented with the income tax during the Civil War, and enacted another tax in the 1890s. The Supreme Court initially upheld the imposition of an income tax,4 but then in 1895, the Court vetoed, five votes to four, the new aspirations of the federal government.5 The rationale for the Court’s intervention was an obscure provision on “direct” and “indirect” taxes in the Constitution of 1787 that had gotten in the way of the new vision of government.6
The Seventeenth Amendment brings us back to the process of developing a democratic system of government. Henceforth, senators would have to be elected not by state legislatures but directly by the people. The tone of the amendment remains deferential to the states’ control of the electoral process, even for national office. The text does not tell us that all people over the age of twenty-one should be entitled to vote but leaves it up to each state to decide who shall be able to vote “for the most numerous branch of the state legislature.” Whatever that standard happens to be will prevail as well for elections to the United States Senate.
The Eighteenth Amendment is the most significant of the lot, for once again we witness in action a government solicitous of the welfare of its people. The structure of this amendment is exactly the same as the Thirteenth. As the latter declares that a certain form of private relationship of subordination shall not exist in the United States, the Eighteenth Amendment tells us, analogously, that another private relationship shall not occur: “the manufacture, sale, or transportation of intoxicating liquors within . . . the United States . . . is hereby prohibited.” This much misunderstood amendment, ratified in 1919, expressed a collective concern for the dignity and welfare of all those whose lives were destroyed by drink. Of course, we know that it did not work, but the sentiment expressed was a noble one. It reflects a politics of mutual responsibility in a single nation, a concern for those who could easily get lost in the rough and tumble of capitalist America.
We encounter this noble motive at work and see its failure in our current policy toward the sale and use of narcotics. We deploy vast sums and personnel in an effort to halt the spread of drug usage, although it is hard to see any tangible payoff from our investment. The reason is simple. It is not easy for government to interdict the pleasures of those who can satisfy them through purely private transactions. The level of vigilance required exceeds the capacity of government in a society that also seeks to protect privacy and civil liberties.
In the case of liquor, in particular, Prohibition had the effect of making consumption tantalizing and exciting. The speak-easy, the drink on the sly, the home brew—all these brought extra pleasure to those who imbibed. The effect of Prohibition was much the same as in the case of flag burning. The law’s forbidding the act makes it more thrilling. The effect is just the opposite of that intended.
Therein lies a message for the politics of governmental intervention. There are times when we must rely on civil society to achieve our goals—sometimes with a slight nudge from government. Witness the turnaround that has occurred in the United States with regard to cigarette smoking. The government posted health warnings on cigarette packs, required airlines and governmental buildings to ban smoking, but did not try to follow the model of Prohibition or the drug laws. The policy of deferring to voluntary initiative has been more effective. A revolution in attitudes toward smoking has occurred, largely because people were free, in effect, to decide for themselves in their homes, offices, and other spheres of influence. They did not need the coercive force of government behind them.
For many, the limitations on governmental power represent a trivial and self-evident proposition. But those who believe in the power of government, as I do, should pay heed. And conservatives, who are generally skeptical of the power of government, would do well to ponder the analogies between Prohibition and the drive for prayer in the schools or the criminalization of flag burning. Of course, there are some areas, such as the protection of the victims of crime, where only the government can act. Of that problem there will be more to say later.
Allow me to take the Twenty-First Amendment out of order. After a decade of Prohibition, the country realized in 1933 that the government simply could not act upon its noble motives. The Constitution had to be amended once more, this time to countermand the Eighteenth Amendment. Some states, for example, Mississippi, retained Prohibition for many more years. As a colleague from ostensibly dry Mississippi once jibed, “Prohibition is better than no liquor at all.” The country as a whole finally decided, however, that a little liquor was more desirable than the costs to freedom in trying to achieve Prohibition.
The rest of the amendments, beginning with the Nineteenth, are all directed to the process of spreading the franchise and refining the mechanism of democratic representation. The Nineteenth (1920), the Twenty-Fourth (1964), and the Twenty-Sixth Amendments (1971) all serve the purpose of extending the franchise. The drafting style follows the Fifteenth Amendment by specifying the criterion on account of which the states may not limit or abridge the right to vote. By using this negative formulation, the first of the series finally extends suffrage to women, the second to those who have not paid a poll tax or any other tax required to vote, and the third, to all men and women over the age of 18. Also in this group is the Twenty-Third Amendment, which extends the right to vote for the president and vice president to citizens otherwise qualified in the District of Columbia.
These amendments bespeak the philosophical principles of the Secret Constitution. A clear commitment to a universal right to vote finally takes hold. The franchise attaches not to those with qualifications, education, wealth, age, or even the supposed superiority that, according to the attitudes of 1920, men enjoyed in practical affairs. The franchise belongs to all Americans and even to resident noncitizens who are capable of knowing, in the minimal theory of democratic voting, when “the shoe pinches.”7 Lincoln’s vision of government “by all the people” was becoming the law of the land.
Also, elections for the presidency begin to take on the quality of a national referendum in place of a compilation of preferences by the individual states. People started voting and expressing themselves as the voice of the nation. Thus, it came to be obvious that citizens of the country who did not reside in the states (namely, those in the federal district) must also have the right to vote for national offices. The Constitution nominally retained the electoral college as a way of giving lip service to the states, but it is clear that the popular vote expresses the will of the nation. This became clear in the presidential election of 2000, discussed in detail in the Afterword. On the basis of the results certified on November 26, Governor George W. Bush acquired a one vote majority in the electoral college. Vice President Gore’s persistent legal challenge to the certified result depended, in part, on the sense of legitimacy he acquired from winning the confidence of the nation in the popular vote.
The remaining constitutional amendments fine-tune the workings of Congress and the presidency. The Twentieth shortens the lameduck period between the November election and the change of leadership in the following year. Previously the inauguration was prescribed for the beginning of March, but the amendment moved up the date to January 3 for Congress and January 20 for the presidency. Although this amendment appears simply to address matters of the calendar, it came into play recently in the dispute about whether an outgoing lameduck House of Representatives could, in the period between election and going out of office, constitutionally impeach President Clinton. Bruce Ackerman shocked the Capital by testifying before the House that the newly seated Senate could not constitutionally try the president on an impeachment passed by the outgoing House.8 The amendment also authorizes Congress to prescribe a mode of succession to the presidency between elections.
The Twenty-Second Amendment (1951) limits the term of office of the president to two four-year terms plus a maximum of two years inherited from a predecessor unable to complete his term. And the Twenty-Fifth (1967) regulates in detail the problem of transition when the president is still alive but incapable of executing the office. The last amendment, the Twenty-Seventh, prohibits congressionally legislated pay raises from taking effect until another national election has taken place, and a new Congress is sworn in. This last revision of the national charter also testifies to the theme of improving the workings of popular democracy: the people must be consulted before their elected representatives should be allowed to raise their own salaries. The curious twist in this last addition to the Constitution is that although it was finally ratified by three-fourths of the states in 1993, it was originally proposed by James Madison two hundred years earlier. Its formal roots lie in the original Constitution of 1787.
The amendments to the original Constitution all bespeak the same pattern of realizing the implicit postbellum commitment to nationhood, democracy, and equality. The realization of these values in the amendments bespeaks the resurgence of the Secret Constitution.
Compassion for Victims
The structure of our basic rights favors those who act—those who speak, assemble, worship, carry guns, keep their homes private, or stretch their liberties to the point that the state charges them with criminal offenses. The attention paid to the rights of criminal defendants in the Bill of Rights is extraordinary. The Fourth, Fifth, Sixth, and Eighth Amendments address the rights of suspects, defendants, and those convicted of crime. Noticeably absent in this catalogue of rights is due regard for those who suffer from the constitutionally protected actions of others. Our liberties entail costs, but for some reason the human beings who bear these costs are left outside of the constitutional equation. The victims have no rights. They are mentioned nowhere.
Indifference toward the victim began to change with the Thirteenth Amendment. For the first time, the people who must bear the cross of involuntary servitude became the focus of attention. They would no longer suffer in the United States. The federal government had the duty to protect them. The government also asserted its duty to protect the weak in the Prohibition Amendment, but, alas, the duty to help others is not always easily realized. Yet, the idea that the government should protect the weak, that it should tender compassion for victims, became a mainstay of the Secret Constitution.
Of course, no one is constitutionally protected in the action of committing a crime. The rights attach to those suspected of crime. The purpose of the amendments is to insure both that innocent persons will not be convicted but just as critically to protect the dignity of every suspect as he or she falls under the investigative and prosecuting power of the state. For example, the privilege against self-incrimination goes beyond the protection of the innocent to speak to the dignity of the suspect who may remain silent. Similarly, the protection of the home and private papers often deters the efficiency of law enforcement, but only for the sake of promoting personal privacy. So long as we recognize that the constitutional provisions are interlaced with dignity concerns, then we cannot properly disregard the claims of victims to be treated in the same way. The victims’ rights movement focuses, therefore, on increasing the participation of victims in various stages of the process. Participation itself helps enhance the dignity of the victim by allowing him or her to be heard and to feel respected as a citizen.
The most common problem faced by victims is that they are not allowed to attend the trials of those who have allegedly assaulted or raped them or killed members of their families. The trial of Timothy McVeigh for bombing the Murrah Federal Building in Oklahoma City in 1995 and killing 168 people provides dramatic proof of indifference to discrimination against the interests of victims. First, federal Judge Richard Matsch changed the venue of the trial from Oklahoma City to Denver, which of course made it much more difficult for the murdered victims’ families to attend the trial. The nominal reason for the change of venue was that McVeigh was more likely to receive an unbiased jury in a city several hundred miles away. The likelihood of finding potential jurors, in Denver or anywhere else in the United States, unaffected by the intensive media coverage of the bombing was thought to be minimal. The other factor influencing the judge’s decision to relocate the trial in Denver was the politely undiscussed fact that he owned a ranch outside of Denver. It suited his personal interests to be close to home.
If the change of venue was not bad enough, Judge Matsch also banned the victims who braved the journey from sitting in the courtroom during the trial. Many courts require witnesses to wait outside if they are likely to be called later in the trial, but in this case the defense prevailed on the judge to bar the victims’ families on the ground that their very presence might induce an emotional response in the jury. This decision, we might say, represented the nadir of compassion for victims in the United States. Finally, Congress intervened to guarantee victims who have suffered direct physical, emotional, or financial harm the right to observe the trial by closed circuit television.9
A more compassionate approach to victims’ rights became evident in the famous O. J. Simpson case, which held the country’s rapt attention for more than a year in 1996 and 1997. In the pretrial skirmishes, the defense objected to the families of the two victims, Nicole Brown Simpson and Ron Goldman, remaining in the courtroom if they might later be called as witnesses. Marcia Clark won the argument in the name of the Brown and Goldman families, actually with some help from a book I had just published on victims’ rights. Whether his words did the trick or not, the author could not help but enjoy hearing them enter into the deliberations. As Clark read them in the debate: “The minimal task of the criminal trial is to stand by victims, to restore their dignity, to find a way for them to think of themselves, once again, as men and women equal to all others.”10 Judge Ito made the right decision to let the families stay in court. If they were later called as witnesses, the defense could adequately protect itself by cross-examining the witnesses about testimony previously heard.
European courts are also wary of allowing potential witnesses to hear the testimony of other witnesses before they testify (they put less faith in cross-examination), but they take strong measures to protect the interests of victims at trial. The typical pattern is to allow the victim to join the proceedings either as a civil plaintiff suing simultaneously for tort damages or as a coprosecutor arguing and presenting the case alongside the state prosecutor. American reformers want to improve the position of the victim at trial, but none of them dares go so far as to suggest reforms comparable to accepted practice on the Continent.
The American movement favoring compassion for victims of crime has found expression in a variety of low-visibility measures. The constitutional amendment, sponsored by Senators Jon Kyl of Arizona and Diane Feinstein of California, sought to introduce the following rights:
To be notified of the proceedings
To attend all public proceedings
To be heard at certain crucial stages in the process
To be notified of the offender’s release or escape
To consideration for a trial free from unreasonable delay
To an order of restitution
To have the safety of the victim considered in determining a release from custody
To be notified of these rights and to have standing to enforce them
So far as it goes, the proposed amendment makes sense. It expresses the spirit of compassion rooted in the Secret Constitution. It expresses the same sentiments that led to other initiatives to protect the weak and defenseless. Although each of the constitutional efforts to intervene on behalf of the powerless has a different impulse and a different agenda, they all spring from a root concern for those who are not strong enough to act for themselves. This is the common thread that begins in the Thirteenth Amendment, peaks, perhaps wrongly, in Prohibition, and issues today into the movement “to stand by victims, to restore their dignity, to find a way for them to think of themselves, once again, as men and women equal to all others.”
The opposition to victims’ rights stems from both prosecutors and defense counsel. The former do not want victims complicating the trial. They are surely opposed to my proposal that victims be able to veto plea bargains and insist on going to trial to vindicate their charges.11 Prosecutors generally like to have victims around at the sentencing phase. The suffering and rage of the victims, when expressed in court, tends to spike the punishment. Defense counsel are opposed for other reasons. They are afraid that empowering victims will distract from the rights of criminal defendants, but this is not necessarily the case.12 The victim’s interest is primarily in participating in the trial. He or she may communicate a desire for conviction but that parochial sentiment of interest will be readily discounted by the commonsense responses of the jury. The fact is that it is possible to strengthen the participatory rights of victims without unduly complicating the procedure or compromising the traditional rights of the defense.
Civil Society
The central question in any movement of compassion is whether the government is the best agency of reform. There are obviously some areas where we must rely on the government or on no one. Only the federal government could have waged the Civil War and emancipated the powerless. Only the federal government could secure the franchise to those who had no power on the local level. Only the federal courts can secure equal protection of the laws when the states decide to disfavor some of their citizens. But in other areas of life, the government can further its ends by staying its hand.
The U.S. government has sought to maintain the religious sensibility that brought forth the Declaration of Independence but was abandoned in the secular Constitution of 1787. Americans have become and remained one of the most religious nations on earth, and largely because the state has evolved toward a rigorous policy of symbolic support for religion, at the same time insisting that the religious culture either thrive or die on its own. The symbolic gestures include printing “IN GOD WE TRUST” on our money, celebrating two Christian holidays as national holidays, and using the Bible in oath-taking ceremonies. These are significant public gestures in a society that rigorously forbids the state’s spending money to support religious education. Amusingly, the Court even quotes the Great Maxim from the Secret Constitution—all men are created equal—to support the separation of Church and State.13 These postures seem to be the mirror opposite of European practices, where the state readily provides subsidies for religious schools, but would not consider using religious symbols on its money or even using the Bible in court to administer the oath to “tell the truth, the whole truth, and nothing but the truth.” Whether these differences in practice are determinative or not, it is clear that the United States has remained a more deeply religious country than Germany, France, or even Italy. For religious faith to remain strong, it might be better for the state to keep its distance.
The same could be said of devotion to the nation. The state must engage in some elementary gestures of national pride. It must define and disseminate a flag, a national anthem, and celebrate holidays such as the Fourth of July, Veterans’ Day, and the birthdays of great national leaders. Nations that fail to do these things have trouble melding their people into a single culture of national identity. A good example is Israel, which has yet to find a holiday that Jews and Arabs can celebrate together. We live in a time of national disintegration—witness Czechoslovakia, the Soviet Union, and the near-misses in Canada—and, therefore, the state is properly advised to cultivate a common identity and a sense of shared history and destiny.
Since the Civil War, the United States has hardly lacked a strong sense of national patriotism. But the state has had to do little to further it. In the 1890s, the Pledge of Allegiance, our secular prayer to the flag, spontaneously spread across the country and became a standard part of the socialization process for all American children. There was little national hesitation about our wars of national aggrandizement against militarily weak opponents in Cuba and Panama. And the country joined enthusiastically in sending our doughboys overseas, in President Wilson’s words, “to make the world safe for democracy.” The generation that fought and won World War II is still with us, infusing in both blacks and whites a strong sense of a national mission well executed. The war in Vietnam was undoubtedly a setback for the spirit of patriotism. A whole generation—my friends and students—became skeptical about the use of military power. Yet, to my surprise and somewhat to my chagrin,14 a new cohort took up the sentiments of their grandparents and enthusiastically supported the questionable goals of the government in the Gulf War. As we were bombing Iraq, the country erupted again in a spontaneous display of unity and patriotic enthusiasm. Yellow ribbons appeared everywhere. It reminded one of the pledge that burst out a hundred years earlier, a paean to the flag in school houses around the country.
Civil society is a powerful medium, and when the public takes up the cause either of religion or of patriotism, its strength overshadows the feeble efforts of government to manipulate its opinions. Yet, in both fields—religion and patriotism—we face a constant challenge from those who are unsatisfied with the successes of civil society. They want government to join the action. Nowhere is this more evident than in the politics of schooling. We worry constantly, perhaps with good reason, that the young in America are growing up with the wrong values. They supposedly suffer from all the mistakes of their elders who promote violence on television and have permitted the country to be flooded with guns, which, as everyone knows, enable teenagers who go on rampages to gain a few hours of prime time news coverage. One wonders, however, whether it is an effective response for government to require, as suggested in one Republican initiative, schools to post the Ten Commandments on schoolhouse walls. This drive toward governmental intervention in the field of value formation has been nowhere more evident—and questionable—than the recently revived push for a constitutional amendment to protect the flag against protestors who want to burn it.
The commitment to the flag has surely been one of the stable and recognized provisions of our sub rosa constitution. We do well to cultivate reverence toward the flag, which coupled with national rituals like the pledge, instills sentiments of national loyalty in our children. Although patriotic sentiments toward the flag antedate the Civil War, we begin to find, in the early twentieth century, a duty of reverence toward the Stars and Stripes formulated as a legal issue. In 1907, the Supreme Court upheld the conviction for flag desecration of a beer manufacturer who printed the flag on his cans. Appropriating the flag for commercial purposes was considered disrespectful.15
Our attitudes toward the flag were then so obeisant that we adopted religious language to describe acts of disrespect toward Old Glory. It would be difficult to say that piece of cloth on which the stars and stripes were printed was ever “consecrated” so that it could be “desecrated.” These terms imply the ritual use of an object exclusively for worshiping God. Despite the inappropriate use of religious language, the Supreme Court upheld this crime as a sensible expression of government’s instinct to protect the symbols of the nation.
But then the commitment to national pride ran into a contrary trend in American thought that had been in the process of emergence for over a century. The impulse to protect the flag against desecration confronted the rising devotion to the cardinal American value of free speech. Since World War I and the dissenting opinion of Justices Holmes and Brandeis,16 the American recognition of the primacy of free speech has been on an upward trajectory. The Supreme Court, including its most conservative justices, has consistently favored the primacy of speech over the interests of victims injured or offended by the rough and ready rumble of the “marketplace of ideas.”17
The collision was inevitable. Two American ideas—protecting the flag and celebrating freedom of speech—would eventually come into focus as contradictory ways of being American. It was a close battle, but in two sharply divided votes of the 1990s, the Supreme Court decided that freedom of expression must prevail.18 But this was hardly a defeat for the politics of national sentiment. Those who loved the flag still had recourse to civil society.19 The proponents of patriotic rituals, such as honoring the flag, could learn from the history of religious sensibility in the United States. The government cannot coerce religious observance without, as John Locke argued in his first Letter Concerning Toleration (1689), corrupting the act of faith into an empty gesture of external compliance. The opposite effect occurs when the government seeks to punish those who burn the flag. The punitive sanction enhances the communicative sting of flag burning. The simple act of destroying a piece of cloth becomes a major event watched closely by the police and the media. The subsequent trial of the flag burner gives him or her a platform for broadcasting the political views expressed in the illegal act. At one time, burning the flag was something like wearing a jacket in the courthouse blazoned with the words “Fuck the Draft.”20 But when flag burning becomes an acceptable and potentially routine event, it draws no more attention than the use of four-letter words at cocktail parties.
There is no doubt that free speech has its victims, and in most European societies and in Canada, the courts rush in to protect the victims against being offended. A good example is the way every major jurisdiction outside the United States treats Holocaust denial. Someone publishes a book saying that Auschwitz never happened, that it is a lie propagated by the Jews. This is a punishable act in Germany, France, Israel, the Netherlands, Canada—just about everywhere where people believe that the government must intervene in order to protect those who might be disturbed and offended by the obscene lie. By intervening and putting the Holocaust denier on trial, of course, they only broadcast the lie to a larger audience, and they convert the mad dissident into a martyr in his own circle.
The Supreme Court has remained remarkably unaffected by the academic swing toward support for hate speech legislation. In the R.A.V. case, for example, the Court struck down a municipal ordinance that punished the display of a symbol that one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”21 Academic critics of the decision stress the value of regulating speech that has the effect, it is argued, of silencing minorities.22 The overriding value, they claim, is the equality of those affected by hate speech. Only by restricting intimidating speech, the argument goes, can all potential participants in the democratic dialogue feel free to speak and to make their opinions known. In the courts, however, the ancien principles still reign. The primary value is not equality but freedom.
But the government’s staying its hand does not mean that hate speech goes unsanctioned. Civil society has it own spontaneous means of chastising those who veer too far from the acceptable range of discourse. The best remedy against the “Auschwitz lie,” as the Germans call it, is to ignore it. Deborah Lipstadt, in her book Denying the Holocaust, wrote that we should not publicly debate unacceptable as well as obviously false claims, and thus she advanced a remedy as powerful as governmental censorship. When civil society turns a deaf ear, crazy ideas lose their edge. The remedy disturbed one historian labeled a “denier” so much that in late 1999 he unsuccessfully sued Lipstadt for libel, primarily to force her to confront his claims.23
In other areas, where racist and sexist speech wounds, the spontaneous order of American society has been uncannily effective in changing patterns of speech. Consider the careful choice of words in this book. I do not write “Negro” or “colored,” as people were wont to do not long ago. “Black” and “African American” have become the norm, and it all happened without government’s uttering a sound. When governmental officials try to tell people how to talk, they look slightly ridiculous. Witness the French trying to outlaw the use of the word “cheeseburger” and other insidious harbingers of American culture. However strong the value of preserving the French language in all its purity, the task is not one for government. At a certain point we have to trust the unplanned, powerful forces of civil society.
Human Dignity
But civil society is not always to be trusted. Witness the drive toward a constitutional amendment to protect the flag against physical desecration. The amendment actually passed the House of Representatives in the summer of 1999, but it is not expected to command the necessary two-thirds vote in the Senate. When speech induces a sense of victimization in minorities and women, many academics in the United States and even more lawmakers abroad reach for the arsenal of legal remedies to show their compassion for victims. Two basic strategies present themselves. One technique trades heavily on the values of the Secret Constitution and the other, characteristic of German thought, relies heavily on the Kantian concept of human dignity. The general principle of equal treatment, as we have elaborated it, lends itself to the argument for limiting freedom of speech. The claim is that obscenity degrades women and, thus, fails to treat them equally with the men who are interested in consuming the obscene material. Similarly, hate speech systematically degrades its targets and, therefore, treats them as unworthy of equal status in society. These are good arguments that draw on a long tradition of concern in the theory of equality for protecting the weak and defenseless.
The alternative mode of compassionate jurisprudence relies on the concept of human dignity, elaborated in Article 1 of the German Basic Law of 1949. The term “human dignity” is not defined in the Basic Law and, therefore, the courts must rely on the basic Kantian principles that human dignity expresses the ultimate personhood of each individual. In my view, although we have never expressed a principle of human dignity in American constitutional law, the same principle underlies our commitment to the Great Maxim. Our notion of equality-in-creation derives from the view that we are all of ultimate value, an idea that can be expressed either by going back to the biblical idea of creation in the image of God or taking the secular alternative of human dignity beyond all price, as articulated in Kant’s moral theory.24
To see how the notion of human dignity operates in practice, let us take a look at the well-known Peep Show case decided in 1981 by the Federal Administrative Court [Bundesverwaltungsgericht] in Germany.25 The operators of a peep show were denied a business permit because their show supposedly violated the morals of the community. Their show displayed a naked woman on a circulating round stage, viewed by men in private booths equipped with one-way windows. The women could not see the men who were gawking at their genitalia and the men could not see each other. The Federal Administrative Court upheld the denial of the license on the ground that the show violated the “human dignity” of the women who chose to participate. That participation was voluntary was irrelevant, for the state had an absolute duty under Article 1 to “protect human dignity” whether the victims wanted the help or not.
The court’s rationale for the decision traded heavily on the Kantian principle that no one should ever use another person exclusively as a means to an end.26 The judges had no objection to strip-tease performances, which they regarded as a variation on dancing in front of an interactive public. But the one-way nature of the viewing in this case disturbed the court:
By contrast with a strip tease, the women in the peep show are subjected to a humiliating objectifying role, brought about by a number of factors: the automatic way in which the viewers pay for the opening of the “peep” window, in which the viewing of the naked woman resembles buying a product from a vending machine, the one-way windows that leave the women, without eye contact, as the isolated objects of salacious desire and the voyeurs relegated to their secret cabins.27
One has to think twice before rejecting this argument. This is not simple prudery. The fact is that the entire enterprise does degrade the participating women into mere objects, and though one could imagine a woman enjoying doing a strip-tease to an appreciative bunch of unruly sailors, the anonymity of private sexual gratification could leave one with a sense of humanity abandoned. Yet, there is obviously another point of view. The self-exposure of the woman on the rotating stage is not that much different from doing a strip-tease before a television camera. The audience is invisible; each viewer is in his little cubicle, called a living room. The danger in the argument of human dignity is that it carries the risk of dogmatism. In the face of the conviction that the peep show violates the dignity of the women who choose to participate, there is little one can say.
At least one German feminist favors the American approach of treating the problem in the Peep Show case as one of equality rather than human dignity.28 The participation of the woman may seem voluntary on the surface. But the mandate of equal justice for men and women requires that we inquire whether in light of the existing power structure, the participation of the women is really voluntary. Appearances deceive. The argument of dignity begins and ends with the question whether the work reduces women to the status of objects. The perspective of equality, by contrast, encourages a broader political inquiry into the relations between women and men in the arenas of sex and money. The feminist assumption, apparently, is that in a state of true equality, no one would agree to engage in this kind of self-humiliation for pay. To be sure, however, that the work is so degrading, we must make implicit judgments about the kinds of activities that allow our sense of humanity to flourish. We are invariably drawn back to the Kantian theory of human dignity.
Whether we approach the problem of sexual exploitation as a problem of dignity or of equality, we can see the politics of compassion at work. The society as a whole undertakes to protect the self-worth of those who fall prey to superior forces. We have made the transition from governmental intervention to prevent slavery to a collective responsibility for the welfare of each. Perhaps Americans would not interfere with the appearance of autonomy in the peep show. But we took aggressive measures during Prohibition to protect individuals against the self-degradation of alcoholism, and we intervene today in a mammoth and seemingly unproductive campaign to protect people against drug abuse.
The paradox of the American approach toward equality is that though we trail European societies in our concern about economic equality and wealth discrimination, we lead the world in other areas of egalitarian thinking. The Secret Constitution has emerged, with vigor, in our collective effort to curtail sexual harassment and discrimination against women in the work place. The movement has occurred at the level of federal law, particularly in the interpretation of Title VII of the 1964 Civil Rights Act.29 The public often forgets that the expansion of sexual harassment law is grounded in the simple commitment to overcome gender inequality in the workplace. The law has moved so quickly in this arena that most men and women no longer know when and how they can approach a coworker and make a compliment or request a date. President Clinton even paid a ransom of $850,000 to avoid an appeal in a sexual harassment dispute in which the law and the lower court judgment seemed clearly on his side.30 Whatever the merits of this body of law, there is little doubt that Americans stand responsible for exporting this vision of sexual equality on the job and even for the creation of a new vocabulary of sexuelle Belästigung and harcèlement sexuel necessary to discuss the problem.
The redress of sexual harassment should be understood, in part, as an expression of the egalitarian aspirations of the Secret Constitution. Yet, as a symptom of the times, sexual harassment also represents a new vision of government; it has developed against the background of growing skepticism about whether things really are what they seem.
Equality for Believers
and Nonbelievers
The values of the second constitution continue to collide with those of the first. The egalitarian approach toward freedom of religion dictates a leveling of two conflicting clauses in the First Amendment on freedom of religion. One clause prescribes “establishment of religion”; the other mandates “the free exercise of religion.” For the past thirty years or so, the tendency has been to read these two clauses together to prohibit both the state financing of religious activities and the state’s favoring one religion by granting to believers special exemptions from the laws applicable to everyone.31 The opposition claims that religious reasons warrant exceptional treatment, say, for refusing to work on one’s personal Sabbath,32 for using hallucinatory drugs,33 or for keeping one’s children out of school in violation of truancy laws.34 Again the conflict is between equality and freedom. Equality requires that all be treated alike—no exceptions for those motivated by fear of God. The faithful object and insist on the teaching found in Matthew 22:21: “Render therefore, unto Caesar the things which are Caesar’s; and unto God, the things that are God’s.”35 The constitutional right to “freedom of religion,” they argue, requires special exemptions for those who dissent, as a matter of conscience, from the laws applicable to others.
While the judicial proponents of freedom continue to hold the upper hand on free speech, the reigning approach to freedom of religion underscores the even-handedness of the law—the same rules should apply to religious and nonreligious alike. In 1990, in Oregon v. Smith, the majority of the Court held that this egalitarian approach to religion should govern the cases of some Native Americans who claimed the right to use peyote in their religious services. Their good-faith claim for exceptional treatment did not prevail in the face of the general prohibition against peyote as a drug perceived to be dangerous.36 In order to reach this conclusion, the Court had to push aside a line of precedents recognizing a policy of deference to any who refused, as a matter of religious conscience, to comply with the laws of the state.37
Congress responded to Smith’s egalitarian treatment of religion by enacting the Religious Freedom Restoration Act of 1993.38 The purpose was to restore the earlier jurisprudence of the Court and “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”39 The supposed ground for Congress’s overruling a constitutional decision of the Supreme Court was Section 5 of the Fourteenth Amendment.40 The proponents of the statute thus relied upon a provision of the second constitution to defend a conception of freedom rooted in the First Amendment and the first Constitution. When the case reached the Supreme Court, six justices found that Congress had exceeded its authority under the Fourteenth Amendment.41 The spirit of the decision dovetails well with the Court’s decision in 1883 to overturn the first civil rights acts as an excessive claim of congressional authority.
The decision reflects a general tendency of the Supreme Court to suppress the independent significance of the second constitution. If the postbellum constitutional order were taken seriously, as an independent source of constitutional law, its legislative provisions would be construed as liberally as the grants of legislative authority under the “interstate commerce” clause and the other provisions of Article I defining the power of Congress in the old Constitution. Yet, the Court’s attitude toward legislative authority under the Fourteenth Amendment begins on the assumption of fear. Congress should be able to implement the “due process” and “equal protection” clauses but not engage in imaginative interpretations of what these clauses should mean in practice. In defense of the current Supreme Court, however, we should note the extraordinary claim that Congress should have the authority—wherever it might be located—explicitly to overrule a constitutional decision of the Supreme Court. Recognizing congressional authority for this purpose would destabilize the structure of judicial review, as it has evolved since the early nineteenth century, and therefore the conservative inclination of the Court has much to commend it.
One cannot but be impressed by the “postmodern” style of the Court’s resolution of this constitutional crisis about freedom of religion. The Supreme Court relies on egalitarian thinking—a value drawn from the second constitution—to develop an approach to the conflicting clauses on religion in the First Amendment. Congress seeks to return to an interpretation of religious liberty attributed to the first Constitution, but grounds its authority in the Fourteenth Amendment, the cornerstone of the second constitution. The Court parries in the name of equality by cabining and curtailing the legislative authority that could be used to further the egalitarian values of the Fourteenth Amendment.
