Strang’s exploration of natural law as a justification of originalism is provocative and could move the debate in a new direction.
When America’s most sophisticated social scientist warns that America is on its last legs, it is time to start paying attention. Charles Murray has come to the conclusion that Donald Trump is “an expression of the legitimate anger that many Americans feel” about the state of the country.
The Trump phenomenon was to be predicted, writes Murray in a recent essay. “It is the endgame of a process that has been going on for a half-century: America’s divestment of its historic national identity.”
Forty years before, my book The Political Culture of the United States (1973) used extensive polling data to show the enduring strength of American identity and of the country’s political culture generally. It was published in the prestigious Little, Brown series, Analytic Studies in Comparative Politics. I recall the series editor warning that its conclusion of a widespread consensus on traditional American values—especially on the enormous importance of religion to Americans—would provoke serious antagonism. Yet, the academic reviews in a profession dominated by secular liberals uniformly supported the conclusion.
That consensus among the U.S. public and its major demographic subgroups is gone, or at least highly attenuated, today. What were the elements of the old consensus? A proud but not arrogant identification with the American nation; with limited government; with a division of legislative, executive, judicial, and regional power; with freedom, property, and markets; with moral equality and opportunity for all groups; with the value of education and work achievement; with God, religion, and traditional moral values generally.
Today these are fighting words between a divided Blue and Red nation.
Murray’s essay refers to Samuel Huntington’s last book, Who Are We? (2004), and selects two components of the nearly-bygone American identity as most important. “One is our Anglo-Protestant heritage,” he writes, but this aspect of the consensus had “inevitably faded in an America that is now home to many cultural and religious traditions.”
The other is “the very idea of America, something unique to us,” and this idea “may be summarized as egalitarianism, liberty and individualism.” In turn, from these flow “other familiar aspects of the national creed,” namely “equality before the law, equality of opportunity, freedom of speech and association, self-reliance, limited government, free-market economics, decentralized and devolved political authority.”
These creedal values echo those described in The Political Culture, but missing are the moral-religious values that the data showed were once very broadly supported by Americans, including those who were Catholic and Jewish as well as those who were Protestant.
Regardless of the precise content of the consensus, Murray insists the erosion of values has been due to the rise of a new phenomenon after the Second World War: the self-selection of an intermarrying elite that began to form when higher education became relatively democratized. For generations now, he says, “America’s elite universities have drawn the most talented people from all over the country, socialized them and often married them off to each other. Brains have become radically more valuable in the marketplace.” This elite, with its college degrees and often advanced degrees, has formed an upper class that “condescen[ds] to ordinary Americans.” And it is “something new under the American sun.”
Murray recalls that into the 1960s, almost all ordinary Americans were working or looking for work. They were married. But then labor force participation among the younger white working-class dropped from 96 percent to 79 percent and marriage rates fell from 86 percent to 52 percent. So that in working-class neighborhoods today,
about one out of five men in the prime of life isn’t even looking for work; they are living off girlfriends, siblings or parents, on disability, or else subsisting on off-the-books or criminal income. Almost half aren’t married, with all the collateral social problems that go with large numbers of unattached males.
Percentages for black Americans dropped almost as much, from lower bases.
These shifts in the country’s class structure were accompanied by “another sea change: large-scale ideological defection from the principles of liberty and individualism, two of the pillars of the American creed.”
The strange part is that the defection happened “in large measure because of the civil rights and feminist movements, both of which began as classic invocations of the creed, rightly demanding that America make good on its ideals for blacks and women.” It was “the success of both movements” that “soon produced policies that directly contradicted the creed. Affirmative action demanded that people be treated as groups. Equality of outcome trumped equality before the law. Group-based policies continued to multiply, with ever more policies embracing ever more groups.”
By the time Ronald Reagan reached the presidency, elite members of the Democratic Party “overwhelmingly subscribed to an ideology in open conflict with liberty and individualism as traditionally understood. This consolidated the Democratic Party’s longtime popularity with ethnic minorities, single women and low-income women, but it alienated another key Democratic constituency: the white working class.”
Murray’s concerns recall similar ones voiced by a giant of an earlier age, Walter Lippmann, who wrote about what he called the decline of America’s public philosophy of civility. Based upon essays begun in 1938, when fascism and communism directly challenged Western values and institutions, Lippmann emphasized the decline of belief in a natural law that had been almost universally thought necessary to legitimize the values of America’s public philosophy, which he identified with popular elections, majority rule, representative assemblies, free speech, loyalty, property, markets and voluntary association.
As Lippmann wrote in his Essays in the Public Philosophy (1955), the institutions still stood but no one was teaching their supporting values to the following generations. A half century later, the consensus was gone.
Lippmann identified natural law with Roman law but one that evolved and survived until 1500. The following social decay and dynastic-religious wars were incompletely resolved by the Treaty of Westphalia and the creation of the nation-state legitimized by divine right nationalism or the British class solution of civility, tolerance and freedom.
These worked reasonably well until the end of the 18th century, when neither could cope with the industrial revolution and the enfranchisement of the masses. A new populist natural law arose to deal with modern pluralism but this produced an out-of-control freedom in the French Revolution and its aftermaths of ideological nationalism, Hitler, communism and the alienated “anonymous masses” of the West.
The result after the Second World War was a “low capacity to believe in precepts that restrict and restrain private interests and desires,” wrote Lippmann. He argued that the “radical error of the modern democratic gospel is that it promises not the good life of this world but the perfect life of heaven.” It “confuses the two realms” of natural and the supernatural.
To Lippmann, Friedrich Nietzsche and Jean-Paul Sartre destroyed not only God but all law above the self. The problem is that society needs something higher than itself to protect it against raw power. The people cannot do it directly although they do need to give their assent. The Jacobin solutions of Rousseau and Calvin are actually a “Christian heresy” that looks for perfection but in this world. The alternative British solution required a contract/constitution to limit power and give it a popular legitimacy. Positing a literal original contract may be myth but implied assent can become social consent. Yet, even this requires a law of nature above both power and the self.
To recover natural law, Lippmann argued that it was necessary to demonstrate the “practical relevance” of the natural law and the public philosophy. We must in a way go back to Alexander the Great and Zeno to demonstrate that the need for a common culture is “acute” for a “good society under modern conditions.” The essence of this Stoic ideal is a requirement for “civility” and reason provides the only way. It happened in the past and is the only way back.
Murray, and Lippmann before him, sought to revitalize what Murray has called a “secular religion.” But London School of Economics Professor David Martin’s Religion and Power: No Logos Without Mythos (2014) suggests the difficulty of such a concept. The rational secular state needs a mythos to grant it legitimacy. Are Alexander and Zeno really alternatives today? Can a natural law without gods, spirits and life after death compete in intensity with secular religions of the Nazi or soviet or nationalistic types or with fundamentalist Islam? What higher law can then prevent the “heresy” of perfectionism?
Professor Martin first challenges the rationalistic assumption that secularization is the world’s future. Stoicism exists almost nowhere but Islam has persisted and even revitalized in the Middle East and revived in secular Turkey but also Orthodoxy has returned in Russia, Pentecostalism has risen in Latin America, Catholicism and Protestantism revived in Poland, Lithuania, Ukraine and even China, and it had hardly lost vitality in the U.S. and Korea. Secularisms such as Nazism, communism, and the administrative state all have had to appeal to their own romantic, nationalistic and pseudo-scientific myths to support their power institutions.
But religious mythos likewise needs reason’s power. Power clearly is dominant in the real world and religions that give absolute primacy to peace over power simply cannot survive. Zoroastrianism fell to militant Islam and Buddhism bent to various more warlike Asiatic powers. Christianity survived by making accommodations to warlike Rome and fierce Germanic tribalism.
Martin expresses the predicament powerfully:
How could Christianity, which in its foundation documents has no honor code and categorically rejects reciprocal violence, become implicated in what it most vehemently rejects? How could the Sermon on the Mount become the sacred Scripture of the crusaders without the evident contradiction sparking a social convulsion or the direct and unequivocal repudiation of Christianity by the principles and the powers? How could aristocracies based on blood ties and feudal obligations of service owed by serf to lord tolerate a liturgy that in the Magnificat daily promised “to put down the mighty from their seats and exalt the humble and meek.”
He stresses that without power, religion cannot survive physically, without myth power has no sustaining impetus. Secularism did succeed through the mythos of nationalism and its mythos of the land, and even of the masses, but that could not survive the secular religion of the self, keeping Christianity’s hope without its doctrines. Christianity (and Buddhism to some degree) could survive by accepting there was evil in the world that had to be accommodated less than perfectly but also by subtly trying to reform it. Pentecostalism’s gifts of the spirit to each individual, however, challenged that accommodation as immoral; creating a “spirituality of the self” that was subject to the same lack of higher law that Lippmann mourned.
At the end of the day the modern Western nation-state finds itself without much logos rationality or mythos spirituality. Charles Murray puts it well: “Historically, America has done a far better job than any other country of socializing people of many different ethnicities into displaying our national character. We will still be identifiably American for some time to come.” But “when faith in that secular religion is held only by fragments of the American people,” we “will have detached ourselves from the bedrock that has made us unique in the history of the world.”