This column is part of an ongoing series of essays examining and applying the timeless principles and truths of the Federalist Papers to the political events of our day.
“Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
Supreme Court Justice Antonin Scalia’s somber dissent in last week’s United States v. Windsor opinion, which overturned the Defense of Marriage Act, contrasts sharply with the Independence Day celebrations to take place across these United States over the next few days, and prompts us for a moment to step away from the festivities to consider what honest victories and fair defeats have to do with the use, abuse, and health of our Union, 237 years after its creation.
Everyone understands that politics involves clashes over competing definitions of justice, between advocates of continuity and advocates of change–and the sensible, at least, also understand that victories and defeats are almost never total or final. Consider John Adams’s two letters to his beloved wife Abigail on July 3, 1776. In the morning, he described the momentous vote taken the day before, asserting, before God and all the world, the independence of “these United Colonies.”
After a day spent deliberating on Jefferson’s draft of the Declaration of Independence, he wrote again, predicting that a heavy price would have to be paid in “toil, and blood, and treasure” “to maintain this declaration.” The Revolutionary War–the War for Independence, after July 2, 1776–was just as costly as Adams feared. When it was over, Americans had secured international recognition for their Union, and that Union had secured the allegiance of almost all Americans.
In the Founders’ world of sober optimism, however, they recognized that maintaining both would be a perpetual struggle. In Adams’s first letter, he wrote of a “plan of confederation” that would be “taken up in a few days.” This was the first draft of what became the Articles of Confederation, which, contrary to the expectations of the patriots of ‘76, had itself become a danger to the Union by 1787–projecting a fatal weakness abroad and all-but-dissolving the political bands connecting the thirteen states.
By the time John Jay wrote his early series of Federalist essays, it seemed that respectable opinion had begun to waver on whether the Union was even worth securing. The founding-era argument against Union can be put in terms that speak very naturally to our contemporary divisions. The north, the south, and the west have decidedly different cultures and political visions. Why not let each people have their own nation? Red states in one country; blue in another. Pro-choice, anti-gun, gay-marriage states over there; pro-life, pro-gun, traditional marriage states over here.
The problem, as Jay points out in Federalist 5, is that there is no way to keep the other guy over there. Multiple nations sharing common borders will fight. They’ll fight because one nation grows more powerful and is tempted to “gather honey in the blooming fields” of its weaker neighbors. They’ll fight because the weaker neighbors combine to pull down the strong one. They’ll fight because one allies with country A and another allies with its enemy, country B–and for myriad other reasons.
This, of course, is the history of Western Europe almost down to the present day. It is what led many Western political thinkers to advocate and, after World War II, Western politicians to bring about a radical re-ordering of politics on the European continent such that political differentiation would be made inconsequential through the creation of a homogeneous European state. In the newly established European Union, war, victory, and defeat would be made impossible on the continent by binding its nations ever closer together.
Yet as French political philosopher Pierre Manent has argued, since the people of these nations have not been so eager to be homogenized, the process has become increasingly undemocratic–or, rather, anti-democratic (“a kratos without a demos”), characterized by cynical efforts to delegitimize all moral distinctions in politics: “Since every significant collective difference puts human unity in danger, one must render every difference insignificant. Thus, aspects of the most barbarous past become elements of an infinitely respectable ‘culture,’ since the only truly evil thing today is to think and act according to the idea that one form of life is better than another.” In essence, where once Europeans distinguished the civilized from the barbarous, today they distinguish the unifying from the dividing, as dictated by its transnational ruling class.
The American ruling class would lead us in the same direction–as was demonstrated by Justice Kennedy’s majority opinion in U.S. v. Windsor. Following its “reasoning” in the 1996 case, Romer v. Evans, the court majority assumed that only “animus” against homosexuals could explain the Defense of Marriage Act, defining marriage as the union of one man and one woman for federal purposes. That should make short work of the marriage debate. As Justice Scalia put it: “Hate your neighbor or come along with us.” Fourteen months ago, President Obama was against gay marriage, but today that’s only for bigots. Forward!
The room allowed for dissent from ruling class orthodoxy is rapidly shrinking. Obamacare regulations attempt to force organizations led by Roman Catholics and evangelicals to abandon their positions on abortion and contraception; the IRS actively suppresses the political activity of conservatives; media elites, now joined by the Supreme Court, attempt to shame and silence those with moral objections to homosexuality or gay marriage.
Disunion, in some sense, seems the most promising way out. One can personally “secede” by withdrawing from the public square, keeping one’s head down, and more or less staying out of the way. At perhaps the other extreme, one can join movements attempting to nullify federal laws or organize the actual secession of certain states or regions. Neither of these approaches is adequate to the challenge we face, however.
The sphere of private action is shrinking as rapidly as the space for dissent. Since Progressivism acknowledges no ultimate limits to the realm of politics, there is no place beyond its claims of sovereignty. The practical barriers to the full exercise of this sovereignty–some political, some technological, some economic–are all provisional and, it seems, increasingly weak.
Radical state-level resistance is equally problematic. The actual division of the United States would bring with it all the calamities for peace that Jay and the rest of the Founders feared and that Americans experienced during the Civil War–a recipe for lots of “accident and force,” not “good government from reflection and choice.” Nullification of federal laws or other assertions of “state rights” concedes too much to the Progressive argument–asserting no-less-dangerous local force against national (or transnational) force. Trading President Obama for Mayor Bloomberg doesn’t do much for individual liberty.
Union–real union–is the Founders’ answer to the Progressive homogenizers: a union under law, with a government able to protect the people, a public square characterized by robust debate, “honest” victories, and “fair” defeats, and a vast realm untouched by both, where citizens pursue happiness through all sorts of private associations.
On July 4, 1776, after warnings of the perils of revolution went unheeded by the British, the members of the Continental Congress mutually committed “our lives, our fortunes, and our sacred honor” to establishing such a Union. The clock is ticking on its preservation through true reflection and choice. May we profit from their example.