Guest: Carter, Stephen L.
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Stephen Carter
Title: The Dissent of the Governed
I’m Richard Heffner, your host on The Open Mind. And the last time Stephen L. Carter, Yale University’s noted William Nelson Cromwell Professor of Law, joined me at this table, it was to discuss Civility, his wonderfully perceptive study of manners, morals and the etiquette of democracy. But now I want to give equal time to his The Dissent of the Governed, which Professor Carter characterizes as “a meditation on law, religion and loyalty.”
And first I would like to ask him: Why a meditation?
CARTER: Well, it’s a meditation in part because I’m not in this book trying to put forth one of those theories that says, “I’ve got it. This is the answer. I’m right.” I’m trying to begin a process of thinking about the interaction among some things we don’t always think about drawing together: the interaction between dissent, which is a very important part of American history and of democracy generally; religion, which has been one of the great forces of dissent in American history, and also special and different from other forces of dissent because religion often involves a separate claim of sovereignty, if you will; and then the idea of loyalty itself, that is, what does it mean to say, “I am a loyal citizen of the United States, but I’m also fully Christian, fully Jewish, fully Muslim,” whatever else it may be. Is there a tug there that creates a tension? That’s what I’m trying to look at without fully resolving it, raising some of the questions that occur.
HEFFNER: Disallegiance, what role does it play in our lives?
CARTER: You know, most of us don’t think a lot about our allegiance to the United States. I mean, there’s the Pledge of Allegiance in the school, but there’s not a moment when you have to say, “I now make a mature commitment. I am now an American citizen, I take upon myself certain obligations.” Immigrants have to say that, but people who grew up here don’t have to say that. And maybe we lose something when not all the people say that, because we don’t think enough about allegiance, where it comes from, why we obey. We don’t think much about disallegiance. We don’t think about how that tie of allegiance can be broken.
So one of the things I’m trying to look at is: What are some of the kinds of forces that can operate in people’s lives that can make them feel, “You know what? The bond that creates my allegiance to this country has been broken somehow. And what’s the consequence of that?” One of the consequences is what I call “disallegiance”: the sense that the country is losing my loyalty because I can’t depend on it anymore, for whatever reason may be.
HEFFNER: You seem to think that that is indeed what is happening.
CARTER: I think it’s happening to a lot of people. I think there are a lot of Americans who feel deeply disaffected from the nation for a variety of different reasons. There are groups that have always felt this effect in America. African-Americans, for example, my own ethnic background. But, for example, a lot of very, I guess one call very traditional or conservative Christians, feel very disaffected, and feel somehow as though their lifestyle is one that is separating them more and more from America. And there are a lot of people, I think, who also feel that just, whatever their political views may be, whatever their religious background may be, whatever their ethnicity may be, feel that government is growing distant, they somehow can’t touch it the way they think they ought to be able to, they can’t reach it, which is one reason I think the rhetoric of what used to be called “devolution” played so well, the idea of giving authority back, not only to the states, but I would say to local communities, plays well because people want to think of government of being at a level where they can reach it. Unfortunately, a lot of liberals tend to take the view that devolution was just a kind of conservative plot to break up various social programs, and maybe for some conservatives it was. But I also think that one has to look at it in the context of people really wanting to be able to reach out and touch a level at which governmental decisions that affect them are made.
HEFFNER: Well, how serious do you find this disaffection?
CARTER: Well, depends on how you want to measure it. I mean, certainly there’s a lot of alienation in things like the decline of voter turnout…
CARTER: …and things of that nature. And that’s a very serious challenge in a democracy, how we get people to feel they have enough invested in the society and in the outcome of elections that they then actually want to go out and do the hard work of voting. It is hard work because you’ve got to inform yourself about the candidates, and so on and so on. So, measured that way, it’s a significant problem. And also measured in the kind of casual anti-government rhetoric, and here the conservatives are largely at fault for having done so much in the ’80s and early ’90s to make government the enemy somehow, that the nation accepts in an almost casual way now if someone wants to say, “The Internal Revenue Service is a monster,” everybody will agree with that instantly because we’ve created this reflexive anti-government-itis which I think can make this alienation work. That’s not to deny that any alienation is real. But I think that when government actors themselves get involved in the bashing of their own institution, they can do a lot of damage.
HEFFNER: You think that damage has been done?
CARTER: I think it has been done, and some of it is the fault of people who have bashed the government, and some of it is the fault of people who have seen government as simply a way to push their own ideological programs where the most people like them are. Now, there’s plenty of blame to go around for this. The interesting question of what we’re going to do about it. And the particular focus of my work here is how are we to look at and think about and ultimately how are we to deal with legally people whose sense of dissatisfaction and distance have become so strong that in some sense they do begin to break that chain of allegiance.
HEFFNER: Well, in your early discussion in The Dissent of the Governed, in your discussion of the Declaration of Independence, you make the point quite clearly that our concerns must be voiced, and we must be heard. Do you think that that is what is happening today, that the dissents are being heard, and therefore may not be dissipated, but will not take this active form that you’re concerned about?
CARTER: I’m glad you mentioned the Declaration of Independence, because I do think, as I say in the book, this is a much misunderstood document in an important way. The people tend to quote Jefferson’s famous language, and so they say, “Well, the Declaration of Independence is really about the consent of the governed,” because that’s the language, “Deriving the just powers from the consent of the governed.” But if you go down the long list of complaints that are listed there, the things that they call us actually say, “These are the reasons we are leaving British rule,” they really are not about consent. What they’re really saying is, “We have repeatedly — repeatedly — petitioned the Crown to listen to our concerns about taxes, representation, about impressment into the armed forces, and so on, and our repeated petitions have been repeatedly ignored. And that, the Declaration says at the end, that’s why the Revolution. It’s not because we’ve complained, it’s not because the king has done wrong; it’s because our repeated complaints have been repeatedly ignored. And there’s a point at which, if they’re ignored enough, the Declaration says, You’ve got to take a stand and say, ‘Well, fine then. If you won’t listen to anything I have to say, then I don’t acknowledge your authority over me.'” And what it is I want to argue is that that actually is a very honorable stance and holds a very important place in our political history.
But, unfortunately, what tends to happen in America is, whoever has power, whether they’re on the right or the left, what they prefer to do is to suppress dissent. If you’re dissenting from the policies of whoever is in power, that’s treated as un-American. So back in the 1960s, people who opposed the War in Vietnam for a long time were dismissed somehow as somehow un-America. “America, love it or leave it” was the great slogan. Just as nowadays a variety of conservative groups are dismissed as threatening our fundamental rights, which basically is the same code; there’s something vaguely un-American about the kind of activism. And in both cases what it really means is you are threatening the ideological program of those who happen to be in charge of this moment, and that’s what makes you un-American.
HEFFNER: You seem to be saying the cry is, “Listen…
CARTER: Oh, yeah.
HEFFNER: “Listen to me, and reply.” Now, in a nation of 260 million plus Americans, what happens to the assent of the governed? Is it possible to maintain? You talked about devolution before. How much devolution can there be in this kind of governmental structure? And you write here, refer constantly to the building of power and the assumption that power must come from the center, and you deplore that.
HEFFNER: But what opportunity is there to reverse that?
CARTER: Well, look, of course, with a nation of our size, you can never have direct democracy, can never have a plebiscite on every issue, and it wouldn’t be a good idea if you could do it. But at the same time, there is a tendency in America to have all the political fights be over possession of the governmental apparatus at the top. And the reason for that is that that apparatus has so much power, affects so many aspects of American life, that the temptation for the activist is, “Instead of spending resources to go into people’s living rooms, sit down, and try to persuade them that I’m right, I’ll just capture the central apparatus, and I’ll make them do what I want them to do.” And when you run the nation that way, people are naturally going to feel disaffected. They’re going to say, “You know what? Nobody cares about anything I have to say; what they care about is telling me what to do, and dumping on me if I disagree.” And that’s not, it seems to me, a prescription for the maintenance of loyalty.
HEFFNER: But “prescription for the maintenance of loyalty”; interesting. As I read The Dissent of the Governed, I was thinking about, not that I know anything about it or know how even to get into it, the Internet.
HEFFNER: And I was thinking about the chatrooms. And I was thinking about all the ways now so many more people can be heard or read. Now, what the impact of this is, or the affect of that is, I don’t know. But aren’t they here for the first time able to give expression and work on the assumption that someone is listening?
CARTER: Well, I think that last part always had, the “someone is listening” point is really it. Because, on the Internet, there are a lot of conversations going on between strangers. But at least to have the satisfaction of knowing somebody has heard what I’m trying to say. It may not be somebody in power, but at least I have somebody to talk to who has listened about this issue. But I worry that actually that may make people feel more disaffected instead of less, because…
HEFFNER: Groups of people?
CARTER: Yeah, groups of people, as they flock more and more to the margins, to marginal conversation, and as they spend less and less time in the company of other people, and more and more time on these other debates, it’s possible, it’s not certain, but it’s possible the Internet then will lead to greater political fracturing, less of a sense of allegiance to some larger national idea. I think it’s crucial for the future of our democracy that we build the idea that there is something that America stands for, there’s an American core, and this is what we can give allegiance to, whether we think it’s a set of values, or a way of understanding the world, something that most Americans can share.
HEFFNER: But isn’t that where religion here, and the concept of meditation, in this book, The Dissent of the Governed, comes together with your emphasis on religious values, or values based upon religious concepts, in civility? Isn’t that where you bring these ideas together?
CARTER: There’s no question there’s a connection there. And religion plays a couple of different functions in our consideration of the role of dissent. On the one hand, religion can be, in some sense, a unifying force. Not in the sense that everybody has to share the same religion; but rather that, in a multi-religious country like this one, if we take religion seriously and look at it seriously, we discover a lot of common values that are held across a lot of the nation’s different religions. And that may begin to give us a core.
At the same time, religion plays another important function in dissent, and that is that religion is what often supplies a different understanding of the world from the understanding of the majority, and a different understanding may be exactly what motivates the Abolitionist, or the civil-rights activist to stand up and say, “I believe something different. I stand for something different. And this is my dissent. And, like the writers of the Declaration of Independence, I demand to be listened to, and I demand to be taken seriously and answered.”
HEFFNER: But, you know, you mentioned the Abolitionists, and you mentioned the Civil Rights Movement. You mention them again and again, both of them, in the two books. What other positive dissent, movement of dissent or disobedience, can you point to?
CARTER: That was religiously based?
HEFFNER: That has values that you respect at their base.
CARTER: Well, think about the labor movement, for example, which began as a great dissenting movement, trying to alter the character of American society. The Women’s Suffrage Movement, very similar. If we’ll go back, especially to the Nineteenth Century, and the deep connection of that movement to fundamental American values, and, I might add, to a lot of fundamental Christian values, as well. A lot of the work of the Progressive Movement is very similar that way. There have been a lot of times in American history when dissenting movements have changed the nation in ways that are good.
HEFFNER: Yes, but each example you offer is, if you put it, each one, on the political spectrum, it’s over on the left. Doesn’t that concern you?
CARTER: Well, you know, you can look at today if you want.
CARTER: There are a lot of dissent who would say, look for example at the Pro-life Movement today which is very much in this tradition. People may agree with it or disagree with it as they can disagree or agree with these other movements, but it’s certainly very strongly in the mainstream of dissenting movements, and it has changed America in important ways. That is, abortion rights are certainly narrower now than they were when the Pro-life Movement got started a quarter-century ago. So there are a lot of these movements on either side. I think one of the reasons you find a lot of them historically on the left is precisely that it’s the left that, in the first century and a half of America, tend to be chipping away at what was seen as a rather conservative edifice. I say “seen as” because I think the right way to look at it is that there was a status quo, and the movement that’s going to be dissenting is always challenging the status quo. And it’s only recently, it’s only in the post-war America that we’ve seen the kind of ascendancy of what’s viewed as a liberal vision of society.
HEFFNER: So the status quo today is liberal.
CARTER: Exactly. And so today you see the conservatives dissenting. Well, that’s a new phenomenon in history only because there was no liberal status quo against which they could dissent.
HEFFNER: How far do you think it will go?
CARTER: Well, I don’t know. I think these pendulums swing. I do believe in the cyclical view of history in certaincertain ways. And so I think that there is never going to be a permanent domination of American life by one part of the political spectrum.
HEFFNER: I didn’t quite mean that.
CARTER: Oh, I’m sorry.
HEFFNER: I meant… No, I can understand why you would think I meant that. How far do you think the dissent, the movement, will go now, now that it is right against left?
CARTER: Well, I worry about violence. I worry about that a lot. A few years ago, the World, not the World Trade Center bombing, a few years ago you had the bombing of the Federal Building in Oklahoma, and that was a terrifying moment. And so I do worry that sometimes people who are disaffected can become extremely violent. We see this with young kids shooting other kids in schoolyards. That, very much is, what very disaffected kids do. What happens when you have whole groups of adults who feel disaffection or when they begin to retreat into the mountain compounds and so on, or the survivalists and the Aryan Nation movement and so on, will they be violent, more violent as well? I think that’s athat’s a genuine danger. And the one thing I do think is important to do, as much as we have to respect and I think encourage dissent, one has to draw a line. And I would draw a line at violence. There are political philosophers who would not draw the line at violence, but I…
HEFFNER: But, now, wait a minute. In your book, you say, “Now draw the line at violence. John Brown?”
CARTER: Fair enough. Draw the line at violence looking at America today. That’s right. Historically, I do think there have been problems in America so great that violence was an understandable and sometimes necessary means. And certainly slavery was one of those. Not only the violence of John Brown and of the slaves who revolted, but the violence of war itself. I don’t believe myself that in America today that there are deep-seated injustices that only violence can overcome. I recognize there are people who disagree with that, but I think that, while we’re a long way from being a perfect republic, we’ve got a lot of big problems, I don’t think it’s the case that we have the kind of problems, the kind of institutionalized oppression that leads to justifiable violence by the people who are oppressed.
HEFFNER: If you take dissent, and you take disobedience, civil disobedience, how do you weigh them? How do you evaluate them? Do you approve of civil disobedience?
CARTER: I actually like civil disobedience. What I like about it is the aspect of civil disobedience in which the person who is being disobedient is willing to accept the justice that that society metes out. And so Martin Luther King goes to jail in Birmingham, and he writes Letter from Birmingham City Jail, a great document of American history, but he does that because he’s willing to go to jail. If he’s not in jail, he doesn’t write the letter. I am much less impressed with the kind of disobedience where people want to break the law to make their point but also figure they shouldn’t have to suffer in any way. I think that one of the things that helps show us the integrity of a cause is precisely the willingness of the people backing that cause to suffer. It doesn’t mean they’re right just because they suffer, but it does give us enormous evidence of their sincerity. And if a lot of our co-equal citizens are sufficiently sincere and persuaded of their cause they’re willing to go to jail for it, we have to at least look at the cause very seriously even if in the end we decide that they were wrong.
HEFFNER: Well, that’s the signal then, you’re saying, that we must take them seriously.
CARTER: It’s a signal, it’s a part of the dialogue itself. The dialogue is not on disobedience; the dialogue is in saying, “Now that I’ve disobeyed, I’m willing to face your punishment. That’s how sure I am that I’m right. And my doing that should persuade you that maybe I am right.”
HEFFNER: Before we went on the air this time, I was talking about Abe Fortas’s little book, Dissent and Civil Disobedience, that came out back during the time of the troubles on the campus…
HEFFNER: …the troubles in Vietnam, etcetera. And I made the point that my students at Rutgers frequently refuse to read it when I assigned it because there was this great villain who was sitting though on the Supreme Court at Lyndon Johnson’s right hand advocating more and more troops sent to Vietnam. He said– Fortas said–, it was so interesting, civil disobedience, if it meant destroying this nation, if that was the objective, something he couldn’t accept, because we weren’t that bad, dissent, yes, and he wrote that he hoped that, had he lived in Hitler’s Germany, he would have been civilly disobedient and tried to tear down the nation. And you’re saying you think too, I believe, that there is nothing that bad about America at the end of the century.
CARTER: That is what I believe. And I think the distinction is a sensible one. That, to the extent that one believes the government apparatus itself, the state apparatus, is unjust, then it makes sense to avoid punishment, avoid capture, it makes sense to use all possible means to get rid of that unjust state, including probably violence. To the extent that one believes that the government apparatus itself is essentially just, that the state is essentially just, and you’re trying to reform it instead of overthrowing it, you’re trying to show it the error of its ways, then civil disobedience is a kind of conversation, and makes a lot of sense in that context.
HEFFNER: How do you explain, as I have never been able to explain to my own satisfaction, that the disaffected in this country have not been sufficiently disaffected to come to the conclusion that you’re just referring to?
CARTER: Well, one possibility is what you stated in the question: that, as disaffected as people are, they’re not disaffected enough to do that. But I don’t know. There have been a lot of times in American history when there have been upswings of violence, for example. In the late Eighteenth or early Nineteenth Centuries there was fairly common of little violent revolts here and there around the country. On the other hand, it’s funny in a way that we’ve built such a powerful government apparatus it’s very hard now to really contemplate, I think, a kind of genuine upswing of violent dissent. When I was in college back in the early ’70s, people used to talk a lot, you know, this mythical, the revolution was going to come, revolution was going to come, everybody thought. Of course, the revolution was never anywhere near coming, and one reason why people weren’t disaffected enough. Another reason might be because they’re so disaffected they don’t think anything will matter. A third possible reason is, even if they are disaffected enough, they look at the power of the state as the power they have, and they don’t want to take that chance.
HEFFNER: You think that’s a major factor.
CARTER: I think it’s a possible factor. Like you, I don’t know what the answer is. I do think though, as I said, that… I do think there are lot of people in America who suffer greatly, but I don’t think the suffering is part of the kind of systematic oppression, systematic, legally designed and operated oppression that creates the, that can lead us to the legitimate conclusion that the government itself is unjust and needs to be overthrown.
HEFFNER: Now, where does religion fit in, in the three minutes that we have left?
CARTER: Well, as I was mentioning a couple minutes ago, I think that religion has been one of the great sources of dissenting power in American history. And to the extent that we try, as we occasionally do, to design a public dialogue in which religion is absent, we lose a lot of dissenting power. I also think that if religion is going to continue to play its role in dissenting power, that does require two important changes in the way we do business. One is we have to have deep respect then for the authority of families to raise their children in their religion without state interference, and that may require enormous change in the way we do the schools, and we don’t have time to go into that in the time that we have. The other thing that we have to then bear in mind is that if religion is going to be this kind of source of setting power, religions themselves have to shy away from trying to grasp for political power. Because if you have political power, you don’t have dissenting power. I think religions at their best stand outside of politics and offer a moral critique of what is going on, as opposed to trying to take over politics and force everybody to do the right thing.
HEFFNER: Yes, but de Tocqueville himself would have indicated that that’s really essentially impossible in America, we are such a political people.
CARTER: Well, when I say “stand outside,” I don’t mean that religions have no political involvement. By virtue of being a religious person, one is different than one would always be, and that makes a political difference. What I mean is that the religions should try to avoid trying to get formal political power, that religions should never fall into the trap of being the arm of a particular political party. That’s when they begin to lose the ability to stand outside and dissent, and when they compromise their best sides.
HEFFNER: Do you see that happening now?
CARTER: Well, it happens a little bit, I think. I think that some Evangelical Christians have gotten too involved in the idea of Republican partisan politics, which requires compromise and give and take, as opposed to standing outside and offering what’s often a very useful moral critique of what we’re doing.
HEFFNER: Stephen Carter, I want so much to thank you for joining me today. And, in fact, there’s so much left that we have to talk about, that you’ve got to promise you’ll come back soon.
CARTER: I always enjoy this. I would be absolutely delighted.
HEFFNER: Thank you so much.
And thanks too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.
Meanwhile, as another old friend used to say, “Good night, and good luck.”
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.