Editor's Note: Five years ago, at Barack Obama's church in Chicago, the Reverend Jeremiah Wright declared: "No, no, no, not God bless America, God damn America, that's in the Bible, for killing innocent people, God damn America, for treating her citizens as less than human. God damn America for as long as she acts like she is God and she is supreme." Shall we sing "God Bless America" or "God Damn America" then? Because Senator Barack Obama aspires to be America's president, and because his spiritual mentor happens to be Rev. Wright, the senator was obliged to make a speech in answer to this question. The speech was properly ambitious. It attempted to relate God, the Declaration of Independence, the Constitution, race, slavery, and the American cause. We offer here an alternative to the reverend's diatribes and the senator's speech.
The principles upon which this nation was founded are those upon which its survival, no less than its prosperity, depend. These are the principles upon which we believe our freedom and prosperity as individuals, and that of our children depend. These principles are simple and familiar enough for anyone to understand who wishes to understand. Selfish motives, miseducation, or ideological blindness may lead some to deny or disparage them. But nothing can obscure their shining truth.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Lincoln at Gettysburg said that the nation, at its birth, had been dedicated to the proposition that all men are created equal. Earlier, Lincoln had said that the proposition of equality was the "central idea" of the founding, from which all its minor thoughts emanated.
The American Proposition
It just came to me within the past few weeks, y'all, why so many folks are hating on Barack Obama. He doesn't fit the model. He ain't white, he ain't rich, and he ain't privileged. Hillary fits the mold. Europeans fit the mold.... Rich white men fit the mold.... Barack knows what it means to be a black man living in a country and a culture that is controlled by rich white people.
—Reverend Jeremiah Wright
Trinity United Church of Christ, Chicago
December 25, 2007
What exactly did these words, of both the Declaration of Independence and the Gettysburg Address, mean? They meant that there was no difference, between one human being, and another human being, that made one the master and the other the servant. As Jefferson once put it, some men are not born with saddles on their backs, nor are others born booted and spurred to ride them. That a man or woman rides a horse corresponds with the difference in their natures. No injustice is done to the horse! That an ox should pull a plow, while a man walks behind, is according to nature. In these cases, servitude follows from the laws of nature. But these same laws of nature tell us that when a human being is subjected to other human beings as if he were a horse or an ox, the laws of nature are violated. All human beings are accordingly equal in their right not to be enslaved, and in their right to be in secure possession of their lives, liberties, and property. To this end they have a right to be governed only by laws to which they have consented.
That all men are created equal does not mean that human beings are the same, or equal, in size, strength, beauty, virtue, or intelligence. There are obviously great differences in individual aptitudes and talents in sports, music, mathematics, speaking, and writing. They are also unequal in the virtues, among them courage, temperance, and justice. But as Jefferson once said, the fact that Sir Isaac Newton may be the most intelligent of living human beings does not give him any right whatever to my person or my property.
If there is no natural authority of any human being over any other—leaving aside the temporary authority of parents over children—how does lawful authority arise? In the words of the Massachusetts Constitution of 1780, "The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good."
It cannot be too greatly emphasized that the political community is a voluntary association. In obeying the law, we are obeying ourselves. In obeying the law we seek to provide a greater security for the rights which we have from God and nature, but which rights we cannot provide for by ourselves alone. The "just powers of government" arise for no other purpose than the protection of those rights which are antecedent to government. Governments exist to protect these rights; the rights themselves do not come from government. In the protection of these rights, no citizen is entitled to greater, or to less protection, than any other. Here is the original meaning of the equal protection of the laws. No one is entitled to greater protection than any of his fellow citizens, because of his wealth, birth, or intelligence. Nor is any one entitled to exemption from taxation or from service in the common defense, because of any claim of superior personal worth.
Once the political community comes into being as a result of the unanimous consent of those who form it, this community must have a government capable of acting. It cannot, however, act by unanimous consent. Such government must, at first, be by majority rule. It must be understood, however, that the authority of the majority is bounded and limited by the purposes for which unanimous consent had originally been given. The majority represents the community in determining how the rights of everyone, minority no less than majority, are to be served. It is to spell out the boundaries of majority rule, and to assert the indefeasible rights of minorities, that constitutions are peculiarly necessary.
In the government of the political community, officers in all its branches will have lawful powers, by which they can give lawful orders. The president as commander-in-chief of the armed services has unique authority to command the use of force in the execution of the laws. We do not however suppose his person to be endowed with rights greater than those of anyone else. We the people have endowed him with powers necessary for our protection. The powers which he enjoys under the Constitution are for our benefit, not his. Thus civic or political inequality arises necessarily from original equality and is consistent with it.
A free society, so far as possible, has a level playing field. But within the human family, there is a great variety of talents, and of energy, and of ambition. Equality of opportunity leads necessarily to inequality of results. Equality of rights leads necessarily to inequality of wealth. A war against wealth is a denial of the equality of rights. James Madison, in the tenth Federalist, observed that there is a "diversity in the faculties of men from which the rights of property originate." The equal protection of unequal faculties of acquiring property is "the first object of government." As Abraham Lincoln wrote: "that some should be rich shows that others may become rich, and hence is just encouragement to industry and enterprise." It is the encouragement to industry and enterprise, arising from the recognition of human equality, which makes a free society more productive, with more wealth, more widely distributed, than any other form of human society.
Slavery and the Human Story
Racism is how this country was founded and how this country is still run! ...We [in the U.S.] believe in white supremacy and black inferiority and believe it more than we believe in God.
—Reverend Jeremiah Wright
sermon at Howard University's Andrew Rankin Memorial Chapel, Washington, D.C.
January 15, 2006
But one may ask, how is it that slavery, or any other form of invidious discrimination, has played so great a role in American history? How could a nation, dedicated at its birth to the proposition that all men are created equal, have tolerated slavery and its effects so long? If we look to the long history of mankind, however, we will ask a different question. Slavery was lawful in every one of the original thirteen states. There was accordingly nothing remarkable in the fact that slavery was not abolished immediately on independence. What is remarkable is that a slave-owning nation would declare that all men are created equal, and thereby make the abolition of slavery a moral and political necessity. To accomplish that task would not be easy. We need to see the dimensions of that task to appreciate its difficulty.
Let us contemplate two epochal events in the long human story. One is the annunciation of the unity of God at Mt. Sinai. That same God was said to have made man, alone among living beings, in His image. Implicit in the unity of God was the corresponding unity of the human race. But it was only after more than three thousand years, that the Declaration of this unity was made in Philadelphia. One need not believe in direct divine intervention to think that it has been the peculiar mission of the American people to testify to the unity on earth of God, and of man. Such testimony could take no more evident form than in the denunciation of chattel slavery in the founding itself. That denunciation is prominent beyond doubt or denial, in the documents of the founding. Men of reason can agree with men of faith, that neither God nor man could have devised a more dramatic event than our founding to demonstrate to the world the meaning inherent in this unity.
Slavery in the British colonies of North America was more than a century-and-a-half old before independence. It was roundly condemned, at one time or another, by nearly all the important political personages of the Revolution. I know of no instance in which any of these personages contradicted the doctrine of the Declaration, or maintained that slavery was a positive good. We must recognize, however, that slavery next to the family was perhaps the oldest institution of civilized mankind. Its origin in the ancient world came with the discovery that it was more profitable to enslave an enemy defeated in war than to kill him. The ancient law of the ancient city may be seen in the Bible. When the Israelites conquered Jericho, they put to the sword everyone in the city—men and women, young and old, sheep, oxen, and asses. Only Rahab the harlot and her family were spared, since they had given shelter to the Israelite spies. Later, in the custom of ancient warfare, the males of a defeated people would all be killed, but the women and children would be carried into slavery. Eventually the entire population of a defeated people would be enslaved. Such are the steps in the human story. That defeat in war meant slavery was the rule for many thousands of years.
Slavery came to the English colonies in North America in the 17th century because the colonists found themselves in possession of a vast continent, needing only cultivation to make it the homes of millions of free, prosperous, God-fearing human beings. Those who came from Europe would be refugees from the tyranny and oppression of feudalism, divine right monarchy, and religious intolerance. But converting this vast wilderness into cultivated lands required labor. It was nearly inevitable that someone would turn to tribal Africa for some, at least, of this labor. It is paradoxical but true that a large measure of the labor that turned America into a sanctuary for freedom came from slavery. The slave trade that developed between North America and the west coast of Africa is one of the great horror stories of Western civilization. It resulted also from the unlimited greed of the African chiefs who enslaved their brother Africans, and then sold them to white slave traders. They in turn sold them, for vast profits, into the new world.
The events of this story are morally indefensible. But the greed that motivated the human actors—excluding of course the slaves themselves—was so overwhelming as to be irresistible. It is impossible for us today who condemn the slave trade to imagine any effective opposition to it in the 17th century. A parallel in our time would be the unstoppable trade in narcotics. We can't stop the supply because we can't stop the demand. To the limitless demand for labor in the new world the slave trade was a limitless response. Like drugs today, laws against it were powerless, because the profits were so great. Opposition to the slave trade did come in time, in the principles of the American Revolution, but not before slavery had formed deep roots in the economy and polity of the United States. The foreign slave trade was outlawed by the United States in 1808, and it was made a capital crime in 1820, but the trade continued right up until the Civil War. It is good however to remind ourselves that no black slave was sold to a white slave trader, on the west coast of Africa, who had not already been enslaved by a black African. Slavery was an equal opportunity employer!
Slavery and the American Cause
The profound mistake of Reverend Wright's sermons is not that he spoke about racism in our society. It's that he spoke as if our society was static; as if no progress has been made.... But what we know—what we have seen—is that America can change. That is the true genius of this nation. What we have already achieved gives us hope—the audacity to hope—for what we can and must achieve tomorrow.
—Senator Barack Obama
speech at the National Constitution Center, Philadelphia
March 18, 2008
The "Declaration of the Causes and Necessity of Taking up Arms," on July 6, 1775, was the very first occasion for the American people to speak to the world with a single voice. In its first sentence, the Second Continental Congress affirmed without equivocation that the idea of the ownership of some human beings by other human beings was an utter absurdity, and that to think otherwise was incompatible with reason or revelation. Thus from the outset—a year before the Declaration of Independence—the American people were committed to the antislavery cause, and to the inseparability of personal freedom and free government. The American people knew from the outset that the cause of their own freedom and that of the slaves was inseparable. This would become the message that Abraham Lincoln would bring to the American people, and to the world, for all time. In the decade from the Declaration to the Constitution every state north of the Mason Dixon line, and north of the Ohio River, either abolished slavery or adopted measures leading to abolition. But in 1793 the cotton gin was invented, shortly after the power loom in England. This was the onset of the industrial revolution. Almost overnight, a new industry or rather a series of new industries, proliferating worldwide, was born. It began with the growing of cotton but was followed by its manufacture into a wide variety of products, especially cotton cloth and cotton clothing. Suddenly, slave labor became vastly more profitable. In the decade before the Civil War, the value of slaves doubled. Once again, greed overwhelmed all other motives. From being regarded as a temporary evil, as it was at the founding, slavery came to be regarded as a positive—and permanent—good.
This changed attitude toward slavery was, however, part of a changed attitude toward morality in general that was sweeping over Western civilization. This change was marked by the apotheosis of "change" itself. What had heretofore been regarded as moral absolutes came to be regarded as merely relative to a particular time and place—to History or Progress—with no enduring claim upon our consciences. Lincoln praised Jefferson for embodying in the Declaration "an abstract truth applicable to all men and all times." But the idea of such truth, and of the correlation of such truth with justice, was increasingly repudiated by the most educated and influential minds in the Western world. Representative of this triumph of historicism and moral relativism was historian Carl Becker's assertion in a landmark 20th-century work that "To ask whether the natural rights philosophy of the Declaration of Independence is true or false is essentially a meaningless question."
To ask whether what the American people in the Declaration of Independence had affirmed as truth was in fact truth, was now said to be meaningless. But if History or Progress or "change" is to be our guide, if the truth of relativism is to replace the truth of the Declaration, then the cause for which the nation fought at its birth, and in the Civil War, was meaningless, too. White power, black power, the Nazis, the Ku Klux Klan, Hitler, Stalin, Mao, Pol Pot, are as justifiable as Jefferson, Lincoln, or the doctrine of the equal natural rights of all human beings. We may understand how the Rev. Jeremiah Wright could so awfully misunderstand the American political tradition, inasmuch as it has been so very misunderstood for so long in circles from whom a better understanding could be expected. But this misunderstanding is a cancer which can in the end prove fatal, not only to a political campaign but to our country.
If we are to have a foundation upon which to continue to build a more perfect union, we must return unequivocally, as Lincoln returned, to the source of our greatness in the American Founding.
Wednesday, September 10, 2008
The American Founding as the Best Regime -Harry Jaffa-July 4, 2007
In the great journal of things happening under the sun, we, the American people, find our account running, under date of the nineteenth century of the Christian era. We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate. We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tell us.
— Abraham Lincoln January 27, 1838
The Preamble of the Constitution crowns its enumeration of the ends of the Constitution by declaring its purpose to "secure the blessings of liberty to ourselves and our posterity." No words of the Constitution reveal the intention of the Constitution more profoundly than these. The Preamble is the statement of the Constitution's purposes, and this culminating purpose embraces and transcends those that have gone before. Alone among the ends of the Constitution, to secure liberty is called a securing of "blessings." What is a blessing is what is good in the eyes of God. It is a good whose possession—by the common understanding of mankind—belongs properly only to those who deserve it. We remember that the final paragraph of the Declaration of Independence appeals to "the Supreme Judge of the World for the rectitude of our intentions." It is by "the authority of the good people of these colonies" that independence is declared. It is because of this assurance of their rectitude that this good people, and their representatives, placed "a firm reliance on the protection of Divine Providence." We commonly call blessed those who enjoy in great measure wealth and health and freedom. And so it is that men pray for these things. Yet the sufferings of the innocent and the flourishing of the wicked—especially the great tyrants—teach us that to be blessed is not the same thing as to be in the enjoyment of worldly goods, of what Aristotle calls external goods. It is an element of the natural theology of mankind—that is partly implicit and partly explicit in the Declaration of Independence—that the compensations, both of evil and of good, are not altogether those visible in the natural order. Hence Aristotle says that what men should pray for is that these external goods be good for them. When men are poor, they seem to wish only for wealth. When they are ill, for health. When they are enslaved, they long only for freedom. This is altogether understandable.
Nevertheless, reflection teaches us that the possession of health, wealth, and freedom are not the ultimate measure of human well-being. We know that there have been human beings who, being in the full possession of health, wealth, and freedom, have yet committed suicide. Health, wealth, and freedom must be combined with something else before they become ingredients of the human good, before they become blessings, properly so called. Aristotle says that no man, even with all the other goods for which men pray, would wish to live without friends. And—although they are usually surrounded by flatterers—tyrants do not have friends, certainly not the kind of friends who make life worth living. The Virginia Bill of Rights of June 12, 1776, affirmed a fundamental principle of the Revolution and of the Founding—providing by anticipation a gloss upon the words of the Preamble—when it declared that:
…no free government, or the blessings of liberty,can be preserved to any people, but by a firmadherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles.
The idea of liberty—or the liberty which is a blessing—being an emancipation of the passions from moral restraint had no place in the constitutional doctrine of the novus ordo seclorum. The liberty which is a blessing must be good for the one who possesses it. It must therefore be a good in the sight of God, who is the source of blessings. Such a good must point to felicity, whether in this world or the next, as its consummation. By calling the advantages of liberty "blessings," the Constitution, which in certain respects makes perhaps the most radical break in all human history with all that has gone before it, nonetheless, in its understanding of the connection between happiness and virtue, aligns itself decisively with traditional moral philosophy and moral theology.
* * *
The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all, given hope to all, and, by consequence, enterprise and industry to all. To a degree hitherto unimagined as possible, it has lifted the burden of unjust inequality—"the oppressor's wrong, the proud man's contumely"—from the backs of the common people. As the Virginia Bill of Rights shows, the Framers never conceived the blessings of liberty in nonmoral terms. They never imagined it to encompass the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers. The people are the source of the authority of the Constitution—of all lawful authority. In Jefferson's words, the people "are inherently independent of all but moral law" (letter to Spenser Roane, September 6, 1819) Let us not, however, forget, that "but." Absent the moral law, a people becomes a mob. And mobs give rise not to free government, but to despotism. That is the theme of Lincoln's Lyceum speech in 1838.
* * *
In the beginning of the Lyceum speech, Lincoln speaks of our political institutions "conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us." Speaking thus has become so idiomatic that it is difficult to recapture the novelty it once possessed. The first amendment, in a single sentence—divided, however, by a semicolon—joins together its civil and religious guarantees. Although it is customary to speak of "civil" before "religious," the first amendment actually reverses this order. This is not accidental. Without the establishment of religious Liberty—without the removal from the political process of sectarian religious questions—a regime combining majority rule with minority rights is not a feasible enterprise. The problem of democratic constitutionalism was expressed succinctly by Jefferson in his inaugural address.
All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
It is clear from the foregoing that "rightfulness" and "reasonableness," being restraints upon the will of the majority, are not themselves mere expressions of will. Here Jefferson is not only saying what the Constitution is, but why it is what it is. In truth, the "what" of the Constitution is inseparable from its "why," and the attempt to understand the former without the latter is—all but the simplest cases—vain. Yet this is precisely what Chief Justice of the Supreme Court William Rehnquist attempts when he writes, for example, that constitutional "safeguards for individual liberty" are grounded neither in "intrinsic worth" nor in "someone's idea of natural justice," but simply in the fact that "they have been incorporated in a constitution by the people." The Framers' ideas of natural justice were the very ground and origin of their intent. To appeal to the conception of "original intent" in interpreting the Constitution—as do Justices Rehnquist and Antonin Scalia and Judge Robert Bork—while denying the ideas of natural justice which formed the "why" of the Constitution, is to go to the uttermost limit of self-contradiction.
James Madison, in his essay on "Sovereignty," written near the end of his life, restated the theoretical arguments that had guided both him and Jefferson in their long political careers. The occasion, of course, was his bitter struggle against Nullification—the South Carolina doctrine whose principal author and exponent was John C. Calhoun. And the necessary condition for Calhoun's entire teaching was the rejection (like Justice Rehnquist) of the idea of natural equality—and natural justice—that had animated the Founding. Legitimate political authority, according to Madison, always arises from an agreement ("compact is the basis of all free government") made between men who are by nature—or originally—equal, none having more authority over another than the other has over him. It is the primordial fact "that all men are created equal" which is the ground both of majority rule and of minority rights. Hence it is that Lincoln would call this proposition "an abstract truth, applicable to all men and all times," and why he would, at Gettysburg, rededicate the nation to it.
Sovereignty, then, has its ground in the natural right to rule oneself that every human being possesses. Sovereignty in the political sense—what we ordinarily call sovereignty—arises when men transfer their right to rule themselves to a civil society, which can do for them what they cannot do for themselves. Civil society, according to Madison, is constituted by the unanimous consent of its constituent members. But civil society is ruled by the majority. The majority is the surrogate for that unanimity which brought the polity into being, but which cannot be the continuing basis for the decisions required by governments if they are to answer the purposes for which they are instituted. That the will of the majority should prevail is a "sacred principle" because the authority of the majority is derived from those natural rights with which all men have been equally "endowed by their Creator." A civil society is perfectly formed, to the extent that each and all of the contracting parties recognize in each other that equality of rights—and of right—which makes the will of the majority "sacred." For the majority, being the substitute or surrogate for the whole, must represent the minority as well as itself. The majority must understand that it is acting on behalf of the people as a whole, and hence the minority no less than the majority. And the minority must look upon the majority as governing in the interests of all, however much it may disagree with the particular measures adopted by the majority. We all recognize this when we speak, for example, of the representative from our congressional district as "our" representative whether we voted for him or against him. And we all recognize that the President of the United States is equally the President of every citizen of the United States. Majority and minority are then essentially divided only by the questions of what means ought to be adopted, for the sake of the ends which are common to all. Hence the Declaration of Independence proclaims "that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it…." The Declaration is speaking here of the people as a whole, but this whole is constituted by its contracting individuals. The right to "alter or abolish" belongs to any majority faced with a will external to itself—as in the case of the King and Parliament of Great Britain. But it also belongs to any minority faced with a majority that ceases, as Jefferson says, to be "reasonable," and which passes laws which violate the "equal rights" of their fellow citizens. Madison, in his essay on "Sovereignty," defines the limits of the authority of the majority by reference to whatever might be done rightfully and by unanimity. The qualification of unanimity refers back to the original constitutive principle of the polity. Unanimous consent is, however, the necessary but not the sufficient condition of government that is nondespotic. The community of Jonestown apparently committed suicide by unanimous consent. Unanimity did not make that action reasonable, or even nondespotic—surely not for the hundreds of children who were put to death by their consenting but deluded parents. Rightfulness implies moral understanding, that "rectitude" upon which the "good people" of the colonies relied in submitting their consciences to "the Supreme Judge of the world." It implies, to repeat, that "moral law" mentioned by Jefferson, without which the authority of the people itself fails. For the rights set forth in the second paragraph of the Declaration of Independence, the rights to "life, liberty, and the pursuit of happiness," are not unconditional justifications for idiosyncratic behavior. They are rights under the "laws of nature and of nature's God." They are not rights authorizing actions which, by those laws, are wrongs. Slavery was, from the outset, no mere paradox in a land of freedom. It was a contradiction of every right to which the American people had themselves appealed when asserting their own right to nondespotic government.
* * *
The constitutionalism of our Founding is inseparable from its moral realism and its natural theology. Tocqueville praised the effect of disestablishment in America and called religion the first of our political institutions precisely because of it. By removing theological differences from the political arena, men could worship God freely according to the dictates of their consciences. But however differently they might conceive of the divine attributes, or however different the forms of worship which in their eyes were pleasing to God, there was a common understanding of morality underlying—or transcending—religious differences. This common understanding was strengthened by all the churches, just by the fact that it was not called into question by their theological differences. By strengthening this moral consensus, disestablishment promoted confidence and even friendship among the citizens. By doing so, it promoted a regime in which the rule of the majority might be consistent with the rights of the minority. But the practical achievement of such a regime was a hard one nonetheless. Without the doctrine of disestablishment and religious freedom it would have been impossible.
The obstacle to Union that arose over slavery could never have been surmounted had not the bonds of Union been sowed in the idea of religious freedom, for the idea of religious freedom encompasses and promotes moral law independently of any particular dogmas of revealed religion. Equally important, it lays the foundation for the idea of limited government in its full extent, and not only with reference to the question of religion. Why this is so, we shall presently say. First, in attempting to define the nature of its limits, let us take note of the crucial tests in the early years of the Constitution—tests it could never have survived had not the doctrine of religious liberty placed the religious question outside its boundaries.
* * *
In the election of 1800, the control of the government of the United States passed substantially from the hands of the Federalists to that of the Republicans. To the best of my knowledge, this was the first time in human history that any such change in the offices of government had ever occurred on the basis of a free popular election. No such election happened in England until well into the nineteenth century. It was not until long after the American Revolution that the King—who could not be constitutionally replaced by any electoral process—ceased to be the executive head of government. Ministers were responsible to the Crown, not to the Parliament. The King secured his majorities in Parliament, not by calling elections, but by manipulating the patronage. That is what Alexander Hamilton had in mind when he said that without corruption the British Constitution was unworkable. And, of course, not until after 1832 could there be said to be anything like a popular election even for the House of Commons.
During the 1790s in France, in the course of the French Revolution, something like ministerial responsibility to the elected Assembly did occur, anticipating the future course of parliamentary democracy. Unfortunately, the special ceremony for outgoing ministers made it impossible for them to form a loyal opposition or to contest future elections. The election of 1800 in the United States was the the first time that the losers gave up their offices peacefully and the winners did not proscribe their defeated opponents by death, imprisonment, loss of property, exile, or even the loss of civil or political rights.
Exactly what contested elections were to mean under the new Constitution was an unresolved question until 1800. The presidency of George Washington happily postponed many such questions, while the new government gained stability and strength under the shelter of Washington's towering prestige. The election of 1796, while hotly contested, returned the party in power to office. The fact that the Constitution of 1787 called for each elector to cast two ballots for President—with the vice-presidency going to the runner-up—showed that the Framers did not anticipate the kind of partisan contests that actually developed. When Jefferson and Burr received the same electoral vote in 1800, the Constitution had to be amended so that electors henceforth distinguished their votes for President and Vice President. The Alien and Sedition Acts of 1798 revealed profound uncertainties as to what a regime of liberty meant in the face of fierce party contests for control of the government.
It cannot be emphasized too strongly, however, that America was forging the principles of modern democracy for all humanity, and doing so with no precedents to guide her. The party contests of the 1790s were the bitterest in American history—more so, even, than those that preceded the Civil War. In part, this was because the very idea of settling such deeply felt differences by free elections was an idea struggling to be born. And we must never forget that that idea required a rebirth—a new birth of freedom—before it was in any sense finally accepted, for the achievement of the election of 1800 did not survive 1860. That year, the party that lost the decision of the vote withdrew from the government rather than accept that decision.
It was Lincoln's genius to explain more lucidly and compellingly than ever before the inner connection between the great proposition of human equality and the necessity and propriety of free elections. It was Lincoln's fate to explain—in the presence of a gigantic rebellion against the decision of the polls—why the decision of the ballots might not be reversed by bullets. And it was Lincoln's fate to explain why, in the end, the war to defend the sanctity of the ballot box and the war to end slavery had to become one and the same.
But Jefferson was Lincoln's teacher. And Jefferson, who in the electoral contest of 1800 had not been lax in the invidiousness of his description of his political opponents, nonetheless declared, in his inaugural address, that:
…every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.
Jefferson did not mean by this that the electoral process was indifferent to differences of principle.
If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
To tolerate error is not to be indifferent to error. Jefferson did not suppose that free government could survive in the absence of sufficient and authoritative opinion in its favor. To worship God according to the dictates of one's own conscience, and not to suffer any civil disability for doing so, is not a matter of tolerance. It is a matter of right. Nor does Jefferson think that there is a right either to dissolve the Union or to change its republican form. Those who would do so merit toleration, but only because of the "safety" with which such toleration may be extended. Yet the day came when it was no longer safe to repeat Jefferson's own condemnation of slavery in many states of the Union. The day came when those states, rather than tolerate anti-slavery speech or contemplate its political consequences, attempted to dissolve the Union. Then it was that Jefferson's confidence in the power of the truth to prevail was put to a supreme test.
* * *
As we have noted, in the single sentence that is the first amendment, the religious guarantees come first. The guarantees after the semicolon—speech, press, assembly, petition—are all active elements in the political process and are intended to provide for its integrity. Freedom of religion is understood to be necessary for the integrity of the political process in the negative sense that such questions as what religion should be established would be an intolerable burden upon that process. Civil and religious liberty are distinct, yet it is good that we regard them as inseparable. Their "bonding" (to use a currently fashionable phrase) is, in a peculiar sense, the achievement of the United States of America.
Consider the status of religious liberty in England—deemed by all the Founding Fathers as the freest government to precede our own, and the model for many of its features. Let us recall Lord Macaulay's celebrated passage on the Toleration Act of 1689, a constitutional pillar of the Glorious Revolution:
The sound principle undoubtedly is, that mere theological error ought not to be punished by the civil magistrate. This principle the Toleration Act not only does not recognize, but positively disclaims…. Persecution continues to be the general rule. Toleration is the exception…. That the provisions…are cumbrous, puerile, inconsistent with each other, inconsistent with the true theory of religious liberty, must be acknowledged. All that can be said in their defense is this: that they removed a vast mass of evil without shocking a vast mass of prejudice….
It was wonderful that such a vast mass of evil was removed by this great law. It was wise of the Parliament not to attempt to assert "the true theory of religious liberty" in the face of such "a vast mass of prejudice." We are reminded that a nation can proceed upon the ground of a "true theory" in the face of such prejudice only by imposing upon the nation a will external to the nation itself. This alternative was known to our Founding Fathers as "enlightened despotism," but they rejected it on the ground that the enlightened consent of the governed was the only durable foundation for free or good government. But the necessity for enlightenment in the consent of the governed was never far from their thoughts. Free government was never possible apart from it. The foundations of American government, wrote Washington in 1783,
were not laid in the gloomy ages of ignorance and superstition, but at an epoch when the rights of mankind were better understood and more clearly defined than at any other period.
And wrote Jefferson in 1816:
If a nation expects to be ignorant and free in a. state of civilization, it expects what never was and never will be.
The American Revolution and the American Constitution became possible only because the rights of man as man—the rights of an enlightened humanity under the moral order of the laws of nature and of nature's God—defined the ground of civic friendship, subordinating the ancient distinctions, not only of religion but of ethnicity and race. Among the most remarkable but least-remarked features of the Declaration of Independence is the passage in which, after assigning a measure of responsibility to "our British brethren" for the tyrannical acts of their government, the Americans "hold them, as we hold the rest of mankind, enemies in war, in peace friends." The ancient distinctions of Greek and barbarian, of Jew and Gentile, of Christian and infidel, here disappear as the ground of human friendship and therewith of civic association.
It is true that the distinction is made, within the Declaration, between civilization on the one hand, and barbarism and savagery on the other. The distinction between the first and the latter two is the distinction between those who do and those who do not respect the rights of others, under the laws of nature. Of course, the necessary ground for such respect is enlightenment: One cannot act on principles of which one is ignorant. As I have often written, the United States is the first nation in the world to declare its independence, not because of any particular qualities or merits of its own, but because of rights which it shared with all men everywhere. In so doing, it declared the ground of "government of the people, by the people, for the people" in a sense absolutely unprecedented. In so doing, it laid an equally unprecedented claim to the character of the best regime of Western civilization.
This latter claim cannot be understood in the light of the doctrine of the best regime as it is found, for example, in Plato and Aristotle. For them, the best regime was that of "the examined life" as defined by Socratic skepticism. Moral virtue, although necessary for human happiness, did not represent in itself the highest of all possible ends: that was to be found in purely contemplative activity. Biblical religion, however, found not the examined life, but the life of obedient love of the living God, to be the highest of all possible ends of human existence. Like classical philosophy, biblical religion finds that man's highest end transcends morality. For man's highest end, his relationship with God, is a transmoral end. Biblical religion presupposes a living God whose existence is primarily and essentially a matter of faith. Whatever demonstrations unassisted reason might make of God's existence and attributes may complement or supplement the teachings of faith. But they can never supplant faith as the ground of belief.
Philosophy, the way of life grounded upon the powers of unassisted human reason, can never refute the existence of the biblical God or the possibility that the best way of life is not that of the examined life. The skepticism that is the core of philosophy, the honest skepticism that must always be distinguished from dogmatic skepticism, always leaves philosophy open to the challenge of revelation. It always leaves philosophers open to the undeniable fact that the claims of autonomous human reason cannot be fully vindicated by that reason. It always leaves philosophers open to the possibility that the fully consistent life—the life that the philosopher himself longs for above all others—is possible only on the basis of revelation.
What we call Western civilization is to be found primarily and essentially in the confluence of the autonomous rationalism of classical philosophy and the faith of biblical religion. As Leo Strauss has said, the vitality—and the glory—of Western civilization is to be found above all in the "mutual influence" of these two irrefutable, irreducible principles of human life. The dynamic of Western civilization is the dynamic of their interaction. The triumph of Western civilization is to be found in the evidence, supplied by both philosophy and revelation, that the human soul, no less by the questions it asks than by the answers it believes it has discovered, participates in a reality that transcends all time and change. The tragedy of Western civilization has been the unfettered attempt, by political means, to vindicate claims whose very nature excludes the possibility that they can be vindicated by political means. To attempt to overcome the skepticism that is the ground of philosophy is like trying to jump over one's own shadow. To attempt to remove the necessity of the free and unconstrained faith that is the ground of the Bible and of biblical religion is like denying the existence of the shadow by jumping only in the dark—or with one's eyes shut!
The unprecedented character of the American Founding is that it provided for the coexistence of the claims of reason and of revelation in all their forms, without requiring or permitting any political decisions concerning them. It refused to make unassisted human reason the arbiter of the claims of revelation, and it refused to make revelation the judge of the claims of reason. It is the first regime in Western civilization to do this, and for that reason it is, in its principles or speech (leaving aside the question of its practice or deeds), the best regime.
But the virtue of the American Founding rests not only upon its defusing of the tension between reason and revelation, but upon their fundamental agreement on a moral code which can guide human life both privately and publicly. This moral code is the work both of "Nature's God"—reason—and the "Creator"—revelation. Religious freedom properly understood is a principle which emancipates political life not only from sectarian religious conflict, but from the far profounder conflict between reason and revelation. Indeed, it makes reason and revelation—for the first time—open friends and allies on the political level. For they are, to repeat, agreed upon the nature and role of morality in the good society.
But radical modernity is the enemy equally of autonomous human reason and of biblical revelation. The core of radical modernity is radical skepticism, a dogmatic skepticism that denies that we do have, or can have, any genuine knowledge of the external world. This dogmatic skepticism denies that either philosophy or revelation in the traditional understanding are possible. It denies that either Socrates or the prophets could ever have distinguished, as Thomas Hobbes put it, whether God had spoken to them in dreams or they had dreamed that God had spoken to them. Hobbes was the precursor of modern scientific positivism, which regards all knowledge as essentially hypothetical and experimental. Its core conviction is that we know only what we make. In constructing a world from hypotheses, we ourselves are the source of all creativity: there is neither need nor room for God. In constructing a world from hypotheses, we have a priori perfect knowledge of that world: there is neither need nor room for philosophy.
Since there is no a priori knowledge in nature or of nature (no "self-evident" truths) to guide the human will, the human will must itself be the a priori source of all knowledge. Unfettered will is the ground, then, of all morality. That is why National Socialism—which understood itself as "The Triumph of the Will"—is the prototypical modern regime. Long before Hitler, though, it was Marx who wrote: "The philosophers have hitherto only interpreted the world. The point, however, is to change it." Marx meant by this that traditional philosophy—an attempt to interpret or understand the world—was illusory. He believed that genuine knowledge of the world was possible only by changes in the world that originated in one's will. Hence the highest form of intellectual activity—of philosophy—was to be found not in speculation or theory, but in practice or revolution. The supreme revolutionary is the supreme philosopher. The outcome of the most radical revolution is therefore the highest form of wisdom. Hence "the inner truth and greatness" of Hitler's revolution and of Stalin's is one and the same. As such it is beyond skepticism. To doubt becomes treason and is punishable as such, for the aim or purpose of radical modernity—of modern philosophy in its final form—is the elimination of skepticism from human life, the transcendence of the opposition between reason and revelation by the abolition of both.
Dogmatic skepticism leads, then, to a scientism, of which totalitarian regimes are the natural and culminating manifestations. But the scientism of dogmatic skepticism is today endemic to the universities of the free world. This dogmatic skepticism is typically expressed as "value relativism," and is found in the writings of the Chief Justice of the United States as well as those of nearly all the so-called philosophers and social scientists of our universities. "Value relativism" is commonly but mistakenly associated with toleration of different opinions. In fact, it denies the rational or divine foundation of any virtue, including that of tolerance. But if there is no human or divine reason to prefer one opinion to another, neither is there any such reason to prefer one regime to another. If knowledge is power, the most powerful opinion is the best opinion. And there is no reason why the most powerful opinion—from which any skepticism concerning its own truth has been eliminated—should give place to any less powerful opinion. Relativism thus undermines the confidence that free government once had in its own truth, the kind of confidence with which the United States in 1776 proclaimed its right to an equal station among the powers of the earth. Relativism thus leads ultimately but inevitably toward the worst forms of tyranny.
It is sometimes said that the American Founding, as an expression of modern (notably Lockean) political philosophy, lowers the ends of human life in order to make them more easily attainable. For Americans, comfortable self-preservation, implemented by free-market economics and the scientific enhancement of man's productive powers, replaces eternal salvation or contemplation as the end of man. Whatever may be true of the thought of John Locke, this is not the way in which the American Founding understood itself. The American Founding limited the ends of government. It did not limit the ends of man. The ends of the regime, considered as ends of government, were lowered. But the ends both of reason and revelation served by the regime, in and through the limitations on government, were understood to enhance, not to diminish, the intrinsic possibility of human excellence. As long as the idea of human excellence itself survived, as understood by the great tradition of Western civilization—the civilization of the Bible and of classical philosophy—the dignity of the American Founding remained that of man's highest ends. It is the outright denial—within the very citadels of learning, the universities—of the dignity of reason and of revelation that threatens the eclipse of the American Founding, and therewith of Western civilization itself.
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We have noted Macaulay's reference to "the true theory of religious liberty." This theory has its classic affirmation in the Virginia Statute of Religious Liberty of 1786, whose author was Thomas Jefferson. It is often said, and correctly, that Jefferson wrote with Locke's Letters on Toleration before him. But Jefferson, in writing that "our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry," was more absolute and categorical than Locke. Jefferson allowed no exceptions for Jews, Catholics, or atheists. (This, incidentally, did not mean that he was an atheist any more than it meant that he was a Jew or a Catholic!) If "the true theory of religious liberty" was not recognized by the laws of England in the seventeenth or eighteenth centuries, neither was it recognized in the public laws of any other government before the American Founding. Indeed, it could not be so recognized as long as the ground of political authority was understood to originate in divine law. In the American Founding, the social contract theory of the Declaration of Independence and the doctrine of religious liberty in the Virginia Statute—both authored by Jefferson—are two sides of one coin. The rights with which all men are by nature equally endowed qualify any man to enter into an agreement with any other man (who is willing to agree with him) to form a civil society.
Political obligations are obligations flowing from such an agreement, and obeying the law is simply keeping one's promise. The authority of government is collective promise-keeping of all the parties to the social contract. Such a contract, by its nature, excludes religious stipulations, since any such stipulations or reservations would be inconsistent with the equality which is the foundation or condition of the contract. Moreover, the sovereignty of the individual who is the party to the social contract means that the government arising from this contract is limited government. This follows from the intrinsic nature of contract itself. A contract can only be made between equals, and can obligate no further than the intentions of the contracting parties.
Here we reflect upon the radical novelty, two hundred years ago, of the idea of limited government based upon the social contract of men created equal. The ancient city understood itself altogether as a creation of divine law. We are familiar, from the Old Testament, with the ancient Mosaic polity. We read it for the story of God's covenant with Israel and the origins of the Messianic promise which Christians believe was fulfilled in Jesus. However unique the Bible is in these respects, in others it is typical. The conception of political obligation—as set forth in the Declaration of Independence—simply did not exist for ancient man.
Plato's Laws begins with the Athenian Stranger asking the Cretan and the Spartan, "A god, is it, or some human being, who is credited with laying down your laws?" The Cretan answers for both himself and the Spartan, "A god, Stranger, a god." Ancient man obeyed the laws because they were of divine, not human origin. If a city was defeated in war, that meant its gods were defeated by stronger gods, and men might, without any sense of disloyalty, transfer their allegiance to the gods of their masters. Here the Jews were different in that by holding that their God alone was God, they would not admit that their God could be defeated—nor that they could have any just reason to be faithless to him.
The conception of religion, as we understand it, was as unknown to Socrates as it was unknown to Moses or to Jesus, for we distinguish religious from nonreligious spheres of life, just as we distinguish church from state, state from society, and society from government. In denying the charge of impiety, it seems never to have occurred to Socrates to deny that impiety was a crime. In defending his philosophical mission, he did so by discovering its origin in a command of the oracle of Delphi—a god recognized by the city of Athens. He insisted that it would be impious for him to disobey that command. The worship of the golden calf was a revolt against the authority of Moses—and of God. There was no ground for distinguishing the infidelity of the rebelling Israelites from their lawlessness, since there was no other source of law than God. In this, however, we see the principle of every ancient city, and not of Israel alone.
The laws of Moses regulated all aspects of human life, mental as well as physical, private as well as public. If we think of orthodox Judaism today, we think of freely chosen personal obligations. But in ancient Israel, these laws were inescapable. We have recently had something of a glimpse of the ancient city in the Islamic republicanism of the Ayatollah Khomeini and in the exhortations of Meir Kahane. How typical of the ancient city were the laws of Moses, however, we may glean from Aristotle's dictum: "Whatever the laws do not permit, they forbid." It took one of the greatest revolutions in human consciousness to change that to "Whatever the laws do not forbid, they permit."
In the New Testament, we see ancient Israel not as an independent polity, but as a conquered province of the Roman empire. When Jesus said to render to Caesar the things that were Caesar's and to God what was God's, he was making an eminently prudent statement. Contrary to a common opinion, he was not distinguishing between church and state, private and public, or religion and government. Jews had to pay tribute because the Roman legions were there to enforce payment—and to crucify anyone who resisted the authority of Rome. But the Romans were interested only in collecting tribute, and were content to let the peoples they had conquered live under their own laws and gods—these being indistinguishable. Had Jesus lived at the time of Moses or Joshua or David or Solomon, he would never have distinguished, as he did, between God and Caesar. Hence Jesus never meant to characterize all political authority as that of Caesar. When he spoke of "Caesar" he was not speaking symbolically; he meant the conqueror of his people, whose regime rested upon force alone. Government deriving its just powers from the consent of the governed is no more properly characterized as "Caesar" than is the government of ancient Israel under the laws of Moses. Nevertheless, it was the transformation of the Rome of the Caesars into the Holy Roman Empire that ended the ancient world and created the distinction—and opposition—of church and state.
The ancient world—the world of the ancient city—may be said to have come to an end when, in the third century of the Christian era, the Roman emperors extended Roman citizenship to the provinces. This, we observe, represented less of an elevation of the provinces than it did a leveling of Rome. Rome had become an imperial military despotism. The emperor's horse—or perhaps merely the latter half of his horse—could become a Senator. The self-governing institutions of republican Rome were dead. Rome was the administrative center of a regime that had no political center, because "the government of men had been replaced by the administration of things." The heart of the process whereby politics is replaced by administration is presented to us unforgettably in Shakespeare's Antony and Cleopatra.
Rome's conquest of the ancient world ended the civic life of the independent poleis. The gods of the conquered cities continued a shadowy existence for some time. When, however, everyone might become a Roman citizen, there was in principle but one authority for law. The gods who had been the many authors of the many laws of the many cities flickered out and died. There was only one city, which was no longer an ancient city, but the empire of the world. But by the logic of the ancient city—which to this point dominated the consciousness of civilized mankind—a single source of law implied a single God. It took little more than a century after the extension of Roman citizenship to the provinces before Constantine's conversion to Christianity began the process of transforming Rome (and the world understood as Rome) from polytheism to monotheism. Whether there was a providential necessity in this—as Aquinas and Dante and Shakespeare seem to have thought—there was certainly an inherent compulsion of reason in saying: one city, one law, one world, one God. That this God should be the God of Israel partakes of the same logic, for the God of Israel was not only understood to be the only God, but one who transcended the universe of which He was held to be Creator. Such a God could not be defeated by the legions of Rome or of any other power, whether in the world or out of the world.
The establishment of Christianity in the Roman empire obeyed the logic of the ancient city, in that membership in the political association carried the implied requirement of acknowledgment of, and obedience to, the God of that empire. The concept of heresy was virtually unknown to the ancient city. What Socrates was accused of is better understood as resembling what we might call being "un-American," that is, of disloyalty. Ancient cities lived on narrow margins of survival, and defeat in war could mean extinction or slavery. All the civic gods tended to be jealous gods for that reason. Belief as such was not central to fidelity. Obedience was central. But the Christian empire made belief central to fidelity, and heresy assumed an unprecedented gravity as an offense against the good order not merely of civil society, but of the world. While belief was elevated to an unprecedented level, obedience sank correspondingly. The decline and fall of the ancient empire replaced centralized Roman administration with the most decentralized, and most lawless, of regimes: feudalism. The Christian God of the Holy Roman Empire was not the author of the laws of France, Germany, England, Spain, or any other part of the Holy Roman Empire, in the sense in which He had been the author of the laws of Moses. He was the sanction for obedience to all the rulers—or laws—that were to be obeyed. But these laws were regarded as laws for a variety of reasons, ancient custom or tradition being foremost. And the divine law—the characteristic form of all law in the ancient world—was no longer the law of the earthly but of the heavenly city.
The extension of Roman citizenship to the provinces, followed by the establishment of Christianity, created a problem that went unsolved in the Christian West for a millennium and a half. That problem was how to discover a source of law for particular political communities within the larger framework of the cosmopolis of the city of God. A single political structure for all of Christendom, much less all of mankind, proved to be impossible. As Thomas Aquinas taught, human law must embody the prudence of the ruler. But who ought to be the ruler? And how are the governed to recognize their obligation to obey him? Aristotle addressed himself to the question of who should rule, and did so in terms of the moral and intellectual excellences that might comprise regimes. His answers were designed to gain acquiescence by philosophers and gentlemen. But he expected the generality of mankind to accept the judgments of the wise because they would be attributed to the gods. Thomas followed Aristotle, but Aristotle offered no solution to the problem of Christian empire. Dante, in one of the most remarkable works ever composed, developed an argument for universal empire based upon Aristotle's Metaphysics, while ignoring his Politics. This fact itself illuminates wonderfully the dilemma of the Christian West—and the causes of the wars of the Reformation—before the American Revolution.
In Protestant countries, the Reformation removed the anointing (and the excommunicating) of secular rulers from the jurisdiction of Rome. The doctrine of the divine right of kings was invented to enable kings to be anointed by bishops they had themselves appointed, rather than by appointees of the Pope. The interests of national kings and their peoples were certainly closer than those of popes or emperors. But however much the interest of kings and their peoples might seem close at a time of national peril—as at the time of the Spanish Armada—at other times they might be in the harshest conflict, with ensuing revolutions and civil wars. The national Church of England, established by Henry VIII's break with Rome, had as its most fundamental doctrine that of passive obedience to the king, under all circumstances and at any cost. But such a doctrine could not survive the contingency of the King himself becoming Catholic. In the Glorious Revolution of 1689, the Church of England itself was converted from the divine right of kings to popular sovereignty, exercised in and through the Parliament.
Long before the writings of Hobbes and Locke, Christianity sowed the seed of what we have come to call individualism by establishing a direct personal relationship between God and every human being. Nothing dramatizes this better than the opening scene in Bunyan's Pilgrim's Progress, in which Christian is fleeing from his family, crying out "What shall I do to be saved?" Salvation—citizenship in the City of God—is individual. Individuals are held to be saved by Christ's merit, but not by that of father or mother or brother. I do not mean to say that Christianity in any way devalued the family, only that family, clan, tribe, nation, the community of blood descendants, ceased to have the integral moral, political, and religious unity they possessed in the ancient city. A citizen of ancient Israel, living under the laws that God had given to Moses, believed himself to be already living in the city of God. In the ancient city—and the Old Testament here is typical—the individual sees himself primarily as a link in the chain of ancestors and descendants. Individuality—including personal immortality—plays virtually no role as a paramount concern. In the Christian Roman Empire, the Church was the visible representative of the City of God, but the City itself was not of this world. As personal immortality in the City of God came to be the paramount concern of Western man, political life was displaced from the central place in human life it had occupied in the ancient city.
The social contract theory embodied in the American Declaration of Independence solved a problem that had plagued Western civilization for more than a millennium and a half. Political authority was to be rooted in each particular political society as the result of the voluntary action of naturally free and equal individuals, whose natural freedom and equality was seen to be as much a dispensation of God as membership in the City of God. These free and equal individuals are enfranchised in the rights that they bring with them into civil society by the fact that they are a priori under the universal "laws of nature and of nature's God." There is then no tension between one's membership in that larger community, which in principle embraces all mankind, and one's particular obligations to one's own community, here and now. The Declaration of Independence recognizes, as did the medieval church, the divine government of the universe. But this government, while providing a pattern for human government, does not cause any divided allegiance in one's political obligation here on earth. The role played by the power of the Church to excommunicate rulers, and to dissolve the allegiance of their subjects, becomes in the Declaration the right of revolution.
But the power of the church—that is to say, of all the churches, or of whatever means a man may choose to direct his own way to his highest end—remains free of civil authority. This bonding of civil and religious liberty is the core of the idea of limited government, and hence of freedom in our world, for we are compelled both to rely upon and to enjoy a degree of personal autonomy that was inconceivable in the ancient city. But the principles by which this autonomy is to be guided—what Jefferson called the moral law—remain the same. And the ground of that autonomy is still the revelation and the reason that are our inheritance from the ancient cities of Athens and Jerusalem. The new order of the ages is radically novel in its solution of the political problem within the framework of a cosmopolitan, monotheistic universe. It is radically traditional in its conception of the ends, whether of reason or of revelation, to be served by that order.
Today we are faced with an unprecedented threat to the survival of biblical religion, of autonomous human reason, and to the form and substance of political freedom. It is important to understand why the threat to one of these is also the threat to all. It is above all important to understand why this threat is, above all, an internal one, mining and sapping our ancient faith, both in God and in ourselves. The decline of the West is the paramount reality facing us today. Perhaps our most immediate danger comes from the historical pessimism of those who counsel us that this is inevitable and that nothing can be done by taking thought. But this danger is itself a danger only if we believe it. It is precisely by taking thought that this superstition can be dispelled and, with it, the unreasoning fears that it breeds. As we enter this third century of the Constitution, let us renew our ancient faith, the faith of Abraham Lincoln,that right make might, and in that faith let us, to the end, dare to do our duty as we understand it.
— Abraham Lincoln January 27, 1838
The Preamble of the Constitution crowns its enumeration of the ends of the Constitution by declaring its purpose to "secure the blessings of liberty to ourselves and our posterity." No words of the Constitution reveal the intention of the Constitution more profoundly than these. The Preamble is the statement of the Constitution's purposes, and this culminating purpose embraces and transcends those that have gone before. Alone among the ends of the Constitution, to secure liberty is called a securing of "blessings." What is a blessing is what is good in the eyes of God. It is a good whose possession—by the common understanding of mankind—belongs properly only to those who deserve it. We remember that the final paragraph of the Declaration of Independence appeals to "the Supreme Judge of the World for the rectitude of our intentions." It is by "the authority of the good people of these colonies" that independence is declared. It is because of this assurance of their rectitude that this good people, and their representatives, placed "a firm reliance on the protection of Divine Providence." We commonly call blessed those who enjoy in great measure wealth and health and freedom. And so it is that men pray for these things. Yet the sufferings of the innocent and the flourishing of the wicked—especially the great tyrants—teach us that to be blessed is not the same thing as to be in the enjoyment of worldly goods, of what Aristotle calls external goods. It is an element of the natural theology of mankind—that is partly implicit and partly explicit in the Declaration of Independence—that the compensations, both of evil and of good, are not altogether those visible in the natural order. Hence Aristotle says that what men should pray for is that these external goods be good for them. When men are poor, they seem to wish only for wealth. When they are ill, for health. When they are enslaved, they long only for freedom. This is altogether understandable.
Nevertheless, reflection teaches us that the possession of health, wealth, and freedom are not the ultimate measure of human well-being. We know that there have been human beings who, being in the full possession of health, wealth, and freedom, have yet committed suicide. Health, wealth, and freedom must be combined with something else before they become ingredients of the human good, before they become blessings, properly so called. Aristotle says that no man, even with all the other goods for which men pray, would wish to live without friends. And—although they are usually surrounded by flatterers—tyrants do not have friends, certainly not the kind of friends who make life worth living. The Virginia Bill of Rights of June 12, 1776, affirmed a fundamental principle of the Revolution and of the Founding—providing by anticipation a gloss upon the words of the Preamble—when it declared that:
…no free government, or the blessings of liberty,can be preserved to any people, but by a firmadherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles.
The idea of liberty—or the liberty which is a blessing—being an emancipation of the passions from moral restraint had no place in the constitutional doctrine of the novus ordo seclorum. The liberty which is a blessing must be good for the one who possesses it. It must therefore be a good in the sight of God, who is the source of blessings. Such a good must point to felicity, whether in this world or the next, as its consummation. By calling the advantages of liberty "blessings," the Constitution, which in certain respects makes perhaps the most radical break in all human history with all that has gone before it, nonetheless, in its understanding of the connection between happiness and virtue, aligns itself decisively with traditional moral philosophy and moral theology.
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The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all, given hope to all, and, by consequence, enterprise and industry to all. To a degree hitherto unimagined as possible, it has lifted the burden of unjust inequality—"the oppressor's wrong, the proud man's contumely"—from the backs of the common people. As the Virginia Bill of Rights shows, the Framers never conceived the blessings of liberty in nonmoral terms. They never imagined it to encompass the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers. The people are the source of the authority of the Constitution—of all lawful authority. In Jefferson's words, the people "are inherently independent of all but moral law" (letter to Spenser Roane, September 6, 1819) Let us not, however, forget, that "but." Absent the moral law, a people becomes a mob. And mobs give rise not to free government, but to despotism. That is the theme of Lincoln's Lyceum speech in 1838.
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In the beginning of the Lyceum speech, Lincoln speaks of our political institutions "conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us." Speaking thus has become so idiomatic that it is difficult to recapture the novelty it once possessed. The first amendment, in a single sentence—divided, however, by a semicolon—joins together its civil and religious guarantees. Although it is customary to speak of "civil" before "religious," the first amendment actually reverses this order. This is not accidental. Without the establishment of religious Liberty—without the removal from the political process of sectarian religious questions—a regime combining majority rule with minority rights is not a feasible enterprise. The problem of democratic constitutionalism was expressed succinctly by Jefferson in his inaugural address.
All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
It is clear from the foregoing that "rightfulness" and "reasonableness," being restraints upon the will of the majority, are not themselves mere expressions of will. Here Jefferson is not only saying what the Constitution is, but why it is what it is. In truth, the "what" of the Constitution is inseparable from its "why," and the attempt to understand the former without the latter is—all but the simplest cases—vain. Yet this is precisely what Chief Justice of the Supreme Court William Rehnquist attempts when he writes, for example, that constitutional "safeguards for individual liberty" are grounded neither in "intrinsic worth" nor in "someone's idea of natural justice," but simply in the fact that "they have been incorporated in a constitution by the people." The Framers' ideas of natural justice were the very ground and origin of their intent. To appeal to the conception of "original intent" in interpreting the Constitution—as do Justices Rehnquist and Antonin Scalia and Judge Robert Bork—while denying the ideas of natural justice which formed the "why" of the Constitution, is to go to the uttermost limit of self-contradiction.
James Madison, in his essay on "Sovereignty," written near the end of his life, restated the theoretical arguments that had guided both him and Jefferson in their long political careers. The occasion, of course, was his bitter struggle against Nullification—the South Carolina doctrine whose principal author and exponent was John C. Calhoun. And the necessary condition for Calhoun's entire teaching was the rejection (like Justice Rehnquist) of the idea of natural equality—and natural justice—that had animated the Founding. Legitimate political authority, according to Madison, always arises from an agreement ("compact is the basis of all free government") made between men who are by nature—or originally—equal, none having more authority over another than the other has over him. It is the primordial fact "that all men are created equal" which is the ground both of majority rule and of minority rights. Hence it is that Lincoln would call this proposition "an abstract truth, applicable to all men and all times," and why he would, at Gettysburg, rededicate the nation to it.
Sovereignty, then, has its ground in the natural right to rule oneself that every human being possesses. Sovereignty in the political sense—what we ordinarily call sovereignty—arises when men transfer their right to rule themselves to a civil society, which can do for them what they cannot do for themselves. Civil society, according to Madison, is constituted by the unanimous consent of its constituent members. But civil society is ruled by the majority. The majority is the surrogate for that unanimity which brought the polity into being, but which cannot be the continuing basis for the decisions required by governments if they are to answer the purposes for which they are instituted. That the will of the majority should prevail is a "sacred principle" because the authority of the majority is derived from those natural rights with which all men have been equally "endowed by their Creator." A civil society is perfectly formed, to the extent that each and all of the contracting parties recognize in each other that equality of rights—and of right—which makes the will of the majority "sacred." For the majority, being the substitute or surrogate for the whole, must represent the minority as well as itself. The majority must understand that it is acting on behalf of the people as a whole, and hence the minority no less than the majority. And the minority must look upon the majority as governing in the interests of all, however much it may disagree with the particular measures adopted by the majority. We all recognize this when we speak, for example, of the representative from our congressional district as "our" representative whether we voted for him or against him. And we all recognize that the President of the United States is equally the President of every citizen of the United States. Majority and minority are then essentially divided only by the questions of what means ought to be adopted, for the sake of the ends which are common to all. Hence the Declaration of Independence proclaims "that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it…." The Declaration is speaking here of the people as a whole, but this whole is constituted by its contracting individuals. The right to "alter or abolish" belongs to any majority faced with a will external to itself—as in the case of the King and Parliament of Great Britain. But it also belongs to any minority faced with a majority that ceases, as Jefferson says, to be "reasonable," and which passes laws which violate the "equal rights" of their fellow citizens. Madison, in his essay on "Sovereignty," defines the limits of the authority of the majority by reference to whatever might be done rightfully and by unanimity. The qualification of unanimity refers back to the original constitutive principle of the polity. Unanimous consent is, however, the necessary but not the sufficient condition of government that is nondespotic. The community of Jonestown apparently committed suicide by unanimous consent. Unanimity did not make that action reasonable, or even nondespotic—surely not for the hundreds of children who were put to death by their consenting but deluded parents. Rightfulness implies moral understanding, that "rectitude" upon which the "good people" of the colonies relied in submitting their consciences to "the Supreme Judge of the world." It implies, to repeat, that "moral law" mentioned by Jefferson, without which the authority of the people itself fails. For the rights set forth in the second paragraph of the Declaration of Independence, the rights to "life, liberty, and the pursuit of happiness," are not unconditional justifications for idiosyncratic behavior. They are rights under the "laws of nature and of nature's God." They are not rights authorizing actions which, by those laws, are wrongs. Slavery was, from the outset, no mere paradox in a land of freedom. It was a contradiction of every right to which the American people had themselves appealed when asserting their own right to nondespotic government.
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The constitutionalism of our Founding is inseparable from its moral realism and its natural theology. Tocqueville praised the effect of disestablishment in America and called religion the first of our political institutions precisely because of it. By removing theological differences from the political arena, men could worship God freely according to the dictates of their consciences. But however differently they might conceive of the divine attributes, or however different the forms of worship which in their eyes were pleasing to God, there was a common understanding of morality underlying—or transcending—religious differences. This common understanding was strengthened by all the churches, just by the fact that it was not called into question by their theological differences. By strengthening this moral consensus, disestablishment promoted confidence and even friendship among the citizens. By doing so, it promoted a regime in which the rule of the majority might be consistent with the rights of the minority. But the practical achievement of such a regime was a hard one nonetheless. Without the doctrine of disestablishment and religious freedom it would have been impossible.
The obstacle to Union that arose over slavery could never have been surmounted had not the bonds of Union been sowed in the idea of religious freedom, for the idea of religious freedom encompasses and promotes moral law independently of any particular dogmas of revealed religion. Equally important, it lays the foundation for the idea of limited government in its full extent, and not only with reference to the question of religion. Why this is so, we shall presently say. First, in attempting to define the nature of its limits, let us take note of the crucial tests in the early years of the Constitution—tests it could never have survived had not the doctrine of religious liberty placed the religious question outside its boundaries.
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In the election of 1800, the control of the government of the United States passed substantially from the hands of the Federalists to that of the Republicans. To the best of my knowledge, this was the first time in human history that any such change in the offices of government had ever occurred on the basis of a free popular election. No such election happened in England until well into the nineteenth century. It was not until long after the American Revolution that the King—who could not be constitutionally replaced by any electoral process—ceased to be the executive head of government. Ministers were responsible to the Crown, not to the Parliament. The King secured his majorities in Parliament, not by calling elections, but by manipulating the patronage. That is what Alexander Hamilton had in mind when he said that without corruption the British Constitution was unworkable. And, of course, not until after 1832 could there be said to be anything like a popular election even for the House of Commons.
During the 1790s in France, in the course of the French Revolution, something like ministerial responsibility to the elected Assembly did occur, anticipating the future course of parliamentary democracy. Unfortunately, the special ceremony for outgoing ministers made it impossible for them to form a loyal opposition or to contest future elections. The election of 1800 in the United States was the the first time that the losers gave up their offices peacefully and the winners did not proscribe their defeated opponents by death, imprisonment, loss of property, exile, or even the loss of civil or political rights.
Exactly what contested elections were to mean under the new Constitution was an unresolved question until 1800. The presidency of George Washington happily postponed many such questions, while the new government gained stability and strength under the shelter of Washington's towering prestige. The election of 1796, while hotly contested, returned the party in power to office. The fact that the Constitution of 1787 called for each elector to cast two ballots for President—with the vice-presidency going to the runner-up—showed that the Framers did not anticipate the kind of partisan contests that actually developed. When Jefferson and Burr received the same electoral vote in 1800, the Constitution had to be amended so that electors henceforth distinguished their votes for President and Vice President. The Alien and Sedition Acts of 1798 revealed profound uncertainties as to what a regime of liberty meant in the face of fierce party contests for control of the government.
It cannot be emphasized too strongly, however, that America was forging the principles of modern democracy for all humanity, and doing so with no precedents to guide her. The party contests of the 1790s were the bitterest in American history—more so, even, than those that preceded the Civil War. In part, this was because the very idea of settling such deeply felt differences by free elections was an idea struggling to be born. And we must never forget that that idea required a rebirth—a new birth of freedom—before it was in any sense finally accepted, for the achievement of the election of 1800 did not survive 1860. That year, the party that lost the decision of the vote withdrew from the government rather than accept that decision.
It was Lincoln's genius to explain more lucidly and compellingly than ever before the inner connection between the great proposition of human equality and the necessity and propriety of free elections. It was Lincoln's fate to explain—in the presence of a gigantic rebellion against the decision of the polls—why the decision of the ballots might not be reversed by bullets. And it was Lincoln's fate to explain why, in the end, the war to defend the sanctity of the ballot box and the war to end slavery had to become one and the same.
But Jefferson was Lincoln's teacher. And Jefferson, who in the electoral contest of 1800 had not been lax in the invidiousness of his description of his political opponents, nonetheless declared, in his inaugural address, that:
…every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.
Jefferson did not mean by this that the electoral process was indifferent to differences of principle.
If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
To tolerate error is not to be indifferent to error. Jefferson did not suppose that free government could survive in the absence of sufficient and authoritative opinion in its favor. To worship God according to the dictates of one's own conscience, and not to suffer any civil disability for doing so, is not a matter of tolerance. It is a matter of right. Nor does Jefferson think that there is a right either to dissolve the Union or to change its republican form. Those who would do so merit toleration, but only because of the "safety" with which such toleration may be extended. Yet the day came when it was no longer safe to repeat Jefferson's own condemnation of slavery in many states of the Union. The day came when those states, rather than tolerate anti-slavery speech or contemplate its political consequences, attempted to dissolve the Union. Then it was that Jefferson's confidence in the power of the truth to prevail was put to a supreme test.
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As we have noted, in the single sentence that is the first amendment, the religious guarantees come first. The guarantees after the semicolon—speech, press, assembly, petition—are all active elements in the political process and are intended to provide for its integrity. Freedom of religion is understood to be necessary for the integrity of the political process in the negative sense that such questions as what religion should be established would be an intolerable burden upon that process. Civil and religious liberty are distinct, yet it is good that we regard them as inseparable. Their "bonding" (to use a currently fashionable phrase) is, in a peculiar sense, the achievement of the United States of America.
Consider the status of religious liberty in England—deemed by all the Founding Fathers as the freest government to precede our own, and the model for many of its features. Let us recall Lord Macaulay's celebrated passage on the Toleration Act of 1689, a constitutional pillar of the Glorious Revolution:
The sound principle undoubtedly is, that mere theological error ought not to be punished by the civil magistrate. This principle the Toleration Act not only does not recognize, but positively disclaims…. Persecution continues to be the general rule. Toleration is the exception…. That the provisions…are cumbrous, puerile, inconsistent with each other, inconsistent with the true theory of religious liberty, must be acknowledged. All that can be said in their defense is this: that they removed a vast mass of evil without shocking a vast mass of prejudice….
It was wonderful that such a vast mass of evil was removed by this great law. It was wise of the Parliament not to attempt to assert "the true theory of religious liberty" in the face of such "a vast mass of prejudice." We are reminded that a nation can proceed upon the ground of a "true theory" in the face of such prejudice only by imposing upon the nation a will external to the nation itself. This alternative was known to our Founding Fathers as "enlightened despotism," but they rejected it on the ground that the enlightened consent of the governed was the only durable foundation for free or good government. But the necessity for enlightenment in the consent of the governed was never far from their thoughts. Free government was never possible apart from it. The foundations of American government, wrote Washington in 1783,
were not laid in the gloomy ages of ignorance and superstition, but at an epoch when the rights of mankind were better understood and more clearly defined than at any other period.
And wrote Jefferson in 1816:
If a nation expects to be ignorant and free in a. state of civilization, it expects what never was and never will be.
The American Revolution and the American Constitution became possible only because the rights of man as man—the rights of an enlightened humanity under the moral order of the laws of nature and of nature's God—defined the ground of civic friendship, subordinating the ancient distinctions, not only of religion but of ethnicity and race. Among the most remarkable but least-remarked features of the Declaration of Independence is the passage in which, after assigning a measure of responsibility to "our British brethren" for the tyrannical acts of their government, the Americans "hold them, as we hold the rest of mankind, enemies in war, in peace friends." The ancient distinctions of Greek and barbarian, of Jew and Gentile, of Christian and infidel, here disappear as the ground of human friendship and therewith of civic association.
It is true that the distinction is made, within the Declaration, between civilization on the one hand, and barbarism and savagery on the other. The distinction between the first and the latter two is the distinction between those who do and those who do not respect the rights of others, under the laws of nature. Of course, the necessary ground for such respect is enlightenment: One cannot act on principles of which one is ignorant. As I have often written, the United States is the first nation in the world to declare its independence, not because of any particular qualities or merits of its own, but because of rights which it shared with all men everywhere. In so doing, it declared the ground of "government of the people, by the people, for the people" in a sense absolutely unprecedented. In so doing, it laid an equally unprecedented claim to the character of the best regime of Western civilization.
This latter claim cannot be understood in the light of the doctrine of the best regime as it is found, for example, in Plato and Aristotle. For them, the best regime was that of "the examined life" as defined by Socratic skepticism. Moral virtue, although necessary for human happiness, did not represent in itself the highest of all possible ends: that was to be found in purely contemplative activity. Biblical religion, however, found not the examined life, but the life of obedient love of the living God, to be the highest of all possible ends of human existence. Like classical philosophy, biblical religion finds that man's highest end transcends morality. For man's highest end, his relationship with God, is a transmoral end. Biblical religion presupposes a living God whose existence is primarily and essentially a matter of faith. Whatever demonstrations unassisted reason might make of God's existence and attributes may complement or supplement the teachings of faith. But they can never supplant faith as the ground of belief.
Philosophy, the way of life grounded upon the powers of unassisted human reason, can never refute the existence of the biblical God or the possibility that the best way of life is not that of the examined life. The skepticism that is the core of philosophy, the honest skepticism that must always be distinguished from dogmatic skepticism, always leaves philosophy open to the challenge of revelation. It always leaves philosophers open to the undeniable fact that the claims of autonomous human reason cannot be fully vindicated by that reason. It always leaves philosophers open to the possibility that the fully consistent life—the life that the philosopher himself longs for above all others—is possible only on the basis of revelation.
What we call Western civilization is to be found primarily and essentially in the confluence of the autonomous rationalism of classical philosophy and the faith of biblical religion. As Leo Strauss has said, the vitality—and the glory—of Western civilization is to be found above all in the "mutual influence" of these two irrefutable, irreducible principles of human life. The dynamic of Western civilization is the dynamic of their interaction. The triumph of Western civilization is to be found in the evidence, supplied by both philosophy and revelation, that the human soul, no less by the questions it asks than by the answers it believes it has discovered, participates in a reality that transcends all time and change. The tragedy of Western civilization has been the unfettered attempt, by political means, to vindicate claims whose very nature excludes the possibility that they can be vindicated by political means. To attempt to overcome the skepticism that is the ground of philosophy is like trying to jump over one's own shadow. To attempt to remove the necessity of the free and unconstrained faith that is the ground of the Bible and of biblical religion is like denying the existence of the shadow by jumping only in the dark—or with one's eyes shut!
The unprecedented character of the American Founding is that it provided for the coexistence of the claims of reason and of revelation in all their forms, without requiring or permitting any political decisions concerning them. It refused to make unassisted human reason the arbiter of the claims of revelation, and it refused to make revelation the judge of the claims of reason. It is the first regime in Western civilization to do this, and for that reason it is, in its principles or speech (leaving aside the question of its practice or deeds), the best regime.
But the virtue of the American Founding rests not only upon its defusing of the tension between reason and revelation, but upon their fundamental agreement on a moral code which can guide human life both privately and publicly. This moral code is the work both of "Nature's God"—reason—and the "Creator"—revelation. Religious freedom properly understood is a principle which emancipates political life not only from sectarian religious conflict, but from the far profounder conflict between reason and revelation. Indeed, it makes reason and revelation—for the first time—open friends and allies on the political level. For they are, to repeat, agreed upon the nature and role of morality in the good society.
But radical modernity is the enemy equally of autonomous human reason and of biblical revelation. The core of radical modernity is radical skepticism, a dogmatic skepticism that denies that we do have, or can have, any genuine knowledge of the external world. This dogmatic skepticism denies that either philosophy or revelation in the traditional understanding are possible. It denies that either Socrates or the prophets could ever have distinguished, as Thomas Hobbes put it, whether God had spoken to them in dreams or they had dreamed that God had spoken to them. Hobbes was the precursor of modern scientific positivism, which regards all knowledge as essentially hypothetical and experimental. Its core conviction is that we know only what we make. In constructing a world from hypotheses, we ourselves are the source of all creativity: there is neither need nor room for God. In constructing a world from hypotheses, we have a priori perfect knowledge of that world: there is neither need nor room for philosophy.
Since there is no a priori knowledge in nature or of nature (no "self-evident" truths) to guide the human will, the human will must itself be the a priori source of all knowledge. Unfettered will is the ground, then, of all morality. That is why National Socialism—which understood itself as "The Triumph of the Will"—is the prototypical modern regime. Long before Hitler, though, it was Marx who wrote: "The philosophers have hitherto only interpreted the world. The point, however, is to change it." Marx meant by this that traditional philosophy—an attempt to interpret or understand the world—was illusory. He believed that genuine knowledge of the world was possible only by changes in the world that originated in one's will. Hence the highest form of intellectual activity—of philosophy—was to be found not in speculation or theory, but in practice or revolution. The supreme revolutionary is the supreme philosopher. The outcome of the most radical revolution is therefore the highest form of wisdom. Hence "the inner truth and greatness" of Hitler's revolution and of Stalin's is one and the same. As such it is beyond skepticism. To doubt becomes treason and is punishable as such, for the aim or purpose of radical modernity—of modern philosophy in its final form—is the elimination of skepticism from human life, the transcendence of the opposition between reason and revelation by the abolition of both.
Dogmatic skepticism leads, then, to a scientism, of which totalitarian regimes are the natural and culminating manifestations. But the scientism of dogmatic skepticism is today endemic to the universities of the free world. This dogmatic skepticism is typically expressed as "value relativism," and is found in the writings of the Chief Justice of the United States as well as those of nearly all the so-called philosophers and social scientists of our universities. "Value relativism" is commonly but mistakenly associated with toleration of different opinions. In fact, it denies the rational or divine foundation of any virtue, including that of tolerance. But if there is no human or divine reason to prefer one opinion to another, neither is there any such reason to prefer one regime to another. If knowledge is power, the most powerful opinion is the best opinion. And there is no reason why the most powerful opinion—from which any skepticism concerning its own truth has been eliminated—should give place to any less powerful opinion. Relativism thus undermines the confidence that free government once had in its own truth, the kind of confidence with which the United States in 1776 proclaimed its right to an equal station among the powers of the earth. Relativism thus leads ultimately but inevitably toward the worst forms of tyranny.
It is sometimes said that the American Founding, as an expression of modern (notably Lockean) political philosophy, lowers the ends of human life in order to make them more easily attainable. For Americans, comfortable self-preservation, implemented by free-market economics and the scientific enhancement of man's productive powers, replaces eternal salvation or contemplation as the end of man. Whatever may be true of the thought of John Locke, this is not the way in which the American Founding understood itself. The American Founding limited the ends of government. It did not limit the ends of man. The ends of the regime, considered as ends of government, were lowered. But the ends both of reason and revelation served by the regime, in and through the limitations on government, were understood to enhance, not to diminish, the intrinsic possibility of human excellence. As long as the idea of human excellence itself survived, as understood by the great tradition of Western civilization—the civilization of the Bible and of classical philosophy—the dignity of the American Founding remained that of man's highest ends. It is the outright denial—within the very citadels of learning, the universities—of the dignity of reason and of revelation that threatens the eclipse of the American Founding, and therewith of Western civilization itself.
* * *
We have noted Macaulay's reference to "the true theory of religious liberty." This theory has its classic affirmation in the Virginia Statute of Religious Liberty of 1786, whose author was Thomas Jefferson. It is often said, and correctly, that Jefferson wrote with Locke's Letters on Toleration before him. But Jefferson, in writing that "our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry," was more absolute and categorical than Locke. Jefferson allowed no exceptions for Jews, Catholics, or atheists. (This, incidentally, did not mean that he was an atheist any more than it meant that he was a Jew or a Catholic!) If "the true theory of religious liberty" was not recognized by the laws of England in the seventeenth or eighteenth centuries, neither was it recognized in the public laws of any other government before the American Founding. Indeed, it could not be so recognized as long as the ground of political authority was understood to originate in divine law. In the American Founding, the social contract theory of the Declaration of Independence and the doctrine of religious liberty in the Virginia Statute—both authored by Jefferson—are two sides of one coin. The rights with which all men are by nature equally endowed qualify any man to enter into an agreement with any other man (who is willing to agree with him) to form a civil society.
Political obligations are obligations flowing from such an agreement, and obeying the law is simply keeping one's promise. The authority of government is collective promise-keeping of all the parties to the social contract. Such a contract, by its nature, excludes religious stipulations, since any such stipulations or reservations would be inconsistent with the equality which is the foundation or condition of the contract. Moreover, the sovereignty of the individual who is the party to the social contract means that the government arising from this contract is limited government. This follows from the intrinsic nature of contract itself. A contract can only be made between equals, and can obligate no further than the intentions of the contracting parties.
Here we reflect upon the radical novelty, two hundred years ago, of the idea of limited government based upon the social contract of men created equal. The ancient city understood itself altogether as a creation of divine law. We are familiar, from the Old Testament, with the ancient Mosaic polity. We read it for the story of God's covenant with Israel and the origins of the Messianic promise which Christians believe was fulfilled in Jesus. However unique the Bible is in these respects, in others it is typical. The conception of political obligation—as set forth in the Declaration of Independence—simply did not exist for ancient man.
Plato's Laws begins with the Athenian Stranger asking the Cretan and the Spartan, "A god, is it, or some human being, who is credited with laying down your laws?" The Cretan answers for both himself and the Spartan, "A god, Stranger, a god." Ancient man obeyed the laws because they were of divine, not human origin. If a city was defeated in war, that meant its gods were defeated by stronger gods, and men might, without any sense of disloyalty, transfer their allegiance to the gods of their masters. Here the Jews were different in that by holding that their God alone was God, they would not admit that their God could be defeated—nor that they could have any just reason to be faithless to him.
The conception of religion, as we understand it, was as unknown to Socrates as it was unknown to Moses or to Jesus, for we distinguish religious from nonreligious spheres of life, just as we distinguish church from state, state from society, and society from government. In denying the charge of impiety, it seems never to have occurred to Socrates to deny that impiety was a crime. In defending his philosophical mission, he did so by discovering its origin in a command of the oracle of Delphi—a god recognized by the city of Athens. He insisted that it would be impious for him to disobey that command. The worship of the golden calf was a revolt against the authority of Moses—and of God. There was no ground for distinguishing the infidelity of the rebelling Israelites from their lawlessness, since there was no other source of law than God. In this, however, we see the principle of every ancient city, and not of Israel alone.
The laws of Moses regulated all aspects of human life, mental as well as physical, private as well as public. If we think of orthodox Judaism today, we think of freely chosen personal obligations. But in ancient Israel, these laws were inescapable. We have recently had something of a glimpse of the ancient city in the Islamic republicanism of the Ayatollah Khomeini and in the exhortations of Meir Kahane. How typical of the ancient city were the laws of Moses, however, we may glean from Aristotle's dictum: "Whatever the laws do not permit, they forbid." It took one of the greatest revolutions in human consciousness to change that to "Whatever the laws do not forbid, they permit."
In the New Testament, we see ancient Israel not as an independent polity, but as a conquered province of the Roman empire. When Jesus said to render to Caesar the things that were Caesar's and to God what was God's, he was making an eminently prudent statement. Contrary to a common opinion, he was not distinguishing between church and state, private and public, or religion and government. Jews had to pay tribute because the Roman legions were there to enforce payment—and to crucify anyone who resisted the authority of Rome. But the Romans were interested only in collecting tribute, and were content to let the peoples they had conquered live under their own laws and gods—these being indistinguishable. Had Jesus lived at the time of Moses or Joshua or David or Solomon, he would never have distinguished, as he did, between God and Caesar. Hence Jesus never meant to characterize all political authority as that of Caesar. When he spoke of "Caesar" he was not speaking symbolically; he meant the conqueror of his people, whose regime rested upon force alone. Government deriving its just powers from the consent of the governed is no more properly characterized as "Caesar" than is the government of ancient Israel under the laws of Moses. Nevertheless, it was the transformation of the Rome of the Caesars into the Holy Roman Empire that ended the ancient world and created the distinction—and opposition—of church and state.
The ancient world—the world of the ancient city—may be said to have come to an end when, in the third century of the Christian era, the Roman emperors extended Roman citizenship to the provinces. This, we observe, represented less of an elevation of the provinces than it did a leveling of Rome. Rome had become an imperial military despotism. The emperor's horse—or perhaps merely the latter half of his horse—could become a Senator. The self-governing institutions of republican Rome were dead. Rome was the administrative center of a regime that had no political center, because "the government of men had been replaced by the administration of things." The heart of the process whereby politics is replaced by administration is presented to us unforgettably in Shakespeare's Antony and Cleopatra.
Rome's conquest of the ancient world ended the civic life of the independent poleis. The gods of the conquered cities continued a shadowy existence for some time. When, however, everyone might become a Roman citizen, there was in principle but one authority for law. The gods who had been the many authors of the many laws of the many cities flickered out and died. There was only one city, which was no longer an ancient city, but the empire of the world. But by the logic of the ancient city—which to this point dominated the consciousness of civilized mankind—a single source of law implied a single God. It took little more than a century after the extension of Roman citizenship to the provinces before Constantine's conversion to Christianity began the process of transforming Rome (and the world understood as Rome) from polytheism to monotheism. Whether there was a providential necessity in this—as Aquinas and Dante and Shakespeare seem to have thought—there was certainly an inherent compulsion of reason in saying: one city, one law, one world, one God. That this God should be the God of Israel partakes of the same logic, for the God of Israel was not only understood to be the only God, but one who transcended the universe of which He was held to be Creator. Such a God could not be defeated by the legions of Rome or of any other power, whether in the world or out of the world.
The establishment of Christianity in the Roman empire obeyed the logic of the ancient city, in that membership in the political association carried the implied requirement of acknowledgment of, and obedience to, the God of that empire. The concept of heresy was virtually unknown to the ancient city. What Socrates was accused of is better understood as resembling what we might call being "un-American," that is, of disloyalty. Ancient cities lived on narrow margins of survival, and defeat in war could mean extinction or slavery. All the civic gods tended to be jealous gods for that reason. Belief as such was not central to fidelity. Obedience was central. But the Christian empire made belief central to fidelity, and heresy assumed an unprecedented gravity as an offense against the good order not merely of civil society, but of the world. While belief was elevated to an unprecedented level, obedience sank correspondingly. The decline and fall of the ancient empire replaced centralized Roman administration with the most decentralized, and most lawless, of regimes: feudalism. The Christian God of the Holy Roman Empire was not the author of the laws of France, Germany, England, Spain, or any other part of the Holy Roman Empire, in the sense in which He had been the author of the laws of Moses. He was the sanction for obedience to all the rulers—or laws—that were to be obeyed. But these laws were regarded as laws for a variety of reasons, ancient custom or tradition being foremost. And the divine law—the characteristic form of all law in the ancient world—was no longer the law of the earthly but of the heavenly city.
The extension of Roman citizenship to the provinces, followed by the establishment of Christianity, created a problem that went unsolved in the Christian West for a millennium and a half. That problem was how to discover a source of law for particular political communities within the larger framework of the cosmopolis of the city of God. A single political structure for all of Christendom, much less all of mankind, proved to be impossible. As Thomas Aquinas taught, human law must embody the prudence of the ruler. But who ought to be the ruler? And how are the governed to recognize their obligation to obey him? Aristotle addressed himself to the question of who should rule, and did so in terms of the moral and intellectual excellences that might comprise regimes. His answers were designed to gain acquiescence by philosophers and gentlemen. But he expected the generality of mankind to accept the judgments of the wise because they would be attributed to the gods. Thomas followed Aristotle, but Aristotle offered no solution to the problem of Christian empire. Dante, in one of the most remarkable works ever composed, developed an argument for universal empire based upon Aristotle's Metaphysics, while ignoring his Politics. This fact itself illuminates wonderfully the dilemma of the Christian West—and the causes of the wars of the Reformation—before the American Revolution.
In Protestant countries, the Reformation removed the anointing (and the excommunicating) of secular rulers from the jurisdiction of Rome. The doctrine of the divine right of kings was invented to enable kings to be anointed by bishops they had themselves appointed, rather than by appointees of the Pope. The interests of national kings and their peoples were certainly closer than those of popes or emperors. But however much the interest of kings and their peoples might seem close at a time of national peril—as at the time of the Spanish Armada—at other times they might be in the harshest conflict, with ensuing revolutions and civil wars. The national Church of England, established by Henry VIII's break with Rome, had as its most fundamental doctrine that of passive obedience to the king, under all circumstances and at any cost. But such a doctrine could not survive the contingency of the King himself becoming Catholic. In the Glorious Revolution of 1689, the Church of England itself was converted from the divine right of kings to popular sovereignty, exercised in and through the Parliament.
Long before the writings of Hobbes and Locke, Christianity sowed the seed of what we have come to call individualism by establishing a direct personal relationship between God and every human being. Nothing dramatizes this better than the opening scene in Bunyan's Pilgrim's Progress, in which Christian is fleeing from his family, crying out "What shall I do to be saved?" Salvation—citizenship in the City of God—is individual. Individuals are held to be saved by Christ's merit, but not by that of father or mother or brother. I do not mean to say that Christianity in any way devalued the family, only that family, clan, tribe, nation, the community of blood descendants, ceased to have the integral moral, political, and religious unity they possessed in the ancient city. A citizen of ancient Israel, living under the laws that God had given to Moses, believed himself to be already living in the city of God. In the ancient city—and the Old Testament here is typical—the individual sees himself primarily as a link in the chain of ancestors and descendants. Individuality—including personal immortality—plays virtually no role as a paramount concern. In the Christian Roman Empire, the Church was the visible representative of the City of God, but the City itself was not of this world. As personal immortality in the City of God came to be the paramount concern of Western man, political life was displaced from the central place in human life it had occupied in the ancient city.
The social contract theory embodied in the American Declaration of Independence solved a problem that had plagued Western civilization for more than a millennium and a half. Political authority was to be rooted in each particular political society as the result of the voluntary action of naturally free and equal individuals, whose natural freedom and equality was seen to be as much a dispensation of God as membership in the City of God. These free and equal individuals are enfranchised in the rights that they bring with them into civil society by the fact that they are a priori under the universal "laws of nature and of nature's God." There is then no tension between one's membership in that larger community, which in principle embraces all mankind, and one's particular obligations to one's own community, here and now. The Declaration of Independence recognizes, as did the medieval church, the divine government of the universe. But this government, while providing a pattern for human government, does not cause any divided allegiance in one's political obligation here on earth. The role played by the power of the Church to excommunicate rulers, and to dissolve the allegiance of their subjects, becomes in the Declaration the right of revolution.
But the power of the church—that is to say, of all the churches, or of whatever means a man may choose to direct his own way to his highest end—remains free of civil authority. This bonding of civil and religious liberty is the core of the idea of limited government, and hence of freedom in our world, for we are compelled both to rely upon and to enjoy a degree of personal autonomy that was inconceivable in the ancient city. But the principles by which this autonomy is to be guided—what Jefferson called the moral law—remain the same. And the ground of that autonomy is still the revelation and the reason that are our inheritance from the ancient cities of Athens and Jerusalem. The new order of the ages is radically novel in its solution of the political problem within the framework of a cosmopolitan, monotheistic universe. It is radically traditional in its conception of the ends, whether of reason or of revelation, to be served by that order.
Today we are faced with an unprecedented threat to the survival of biblical religion, of autonomous human reason, and to the form and substance of political freedom. It is important to understand why the threat to one of these is also the threat to all. It is above all important to understand why this threat is, above all, an internal one, mining and sapping our ancient faith, both in God and in ourselves. The decline of the West is the paramount reality facing us today. Perhaps our most immediate danger comes from the historical pessimism of those who counsel us that this is inevitable and that nothing can be done by taking thought. But this danger is itself a danger only if we believe it. It is precisely by taking thought that this superstition can be dispelled and, with it, the unreasoning fears that it breeds. As we enter this third century of the Constitution, let us renew our ancient faith, the faith of Abraham Lincoln,that right make might, and in that faith let us, to the end, dare to do our duty as we understand it.
Where the Canidates Stand
As the California Marriage Amendment debate heats up Barack Obama and John McCain have made clear their respective positions on the issue.
Two weeks after the California Supreme Court announced its decision to allow same-sex couples to “marry”, opponents of same-sex marriage succeeded in placing on the November ballot a proposed constitutional amendment which states: “Only marriage between a man and a woman is valid or recognized in California.” If passed, the measure would reverse the recent court decision.
Mr. Obama recently made his position public in a letter sent to a San Francisco homosexual activist group.
“I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,” wrote Mr. Obama, the presumptive Democratic presidential nominee.
At the same time John McCain has announced his support for the California Protection of Marriage initiative in an email received by the ProtectMarriage.com campaign.
“I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona. I do not believe judges should be making these decisions,” Mr. McCain stated.
In a press release commenting on the endorsement of Senator McCain, ProtectMarriage.com Chairman Ron Prentice said, “We are honored to have the support of Senator McCain. As a leader in the United States Senate and the presumptive Republican presidential nominee, Senator McCain’s position will be an important factor to millions of Californians.”
“Senator McCain has articulated a key feature of the initiative campaign, which is that voters and not judges should be determining this issue.”
“Over 61% of the electorate has already voted to reaffirm marriage as between a man and a woman. Four activist judges on the California Supreme Court in San Francisco wrongly substituted their own narrow views for the opinion of over 4 million California voters. Fortunately, voters will be able to correct that mistake in November and restore the definition of marriage to our constitution.”
“We look forward to working with Senator McCain and many other elected leaders to accomplish this. We hope that U.S Senator Barack Obama will join Senator McCain in endorsing the initiative, and would welcome his support as well.”
Two weeks after the California Supreme Court announced its decision to allow same-sex couples to “marry”, opponents of same-sex marriage succeeded in placing on the November ballot a proposed constitutional amendment which states: “Only marriage between a man and a woman is valid or recognized in California.” If passed, the measure would reverse the recent court decision.
Mr. Obama recently made his position public in a letter sent to a San Francisco homosexual activist group.
“I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states,” wrote Mr. Obama, the presumptive Democratic presidential nominee.
At the same time John McCain has announced his support for the California Protection of Marriage initiative in an email received by the ProtectMarriage.com campaign.
“I support the efforts of the people of California to recognize marriage as a unique institution between a man and a woman, just as we did in my home state of Arizona. I do not believe judges should be making these decisions,” Mr. McCain stated.
In a press release commenting on the endorsement of Senator McCain, ProtectMarriage.com Chairman Ron Prentice said, “We are honored to have the support of Senator McCain. As a leader in the United States Senate and the presumptive Republican presidential nominee, Senator McCain’s position will be an important factor to millions of Californians.”
“Senator McCain has articulated a key feature of the initiative campaign, which is that voters and not judges should be determining this issue.”
“Over 61% of the electorate has already voted to reaffirm marriage as between a man and a woman. Four activist judges on the California Supreme Court in San Francisco wrongly substituted their own narrow views for the opinion of over 4 million California voters. Fortunately, voters will be able to correct that mistake in November and restore the definition of marriage to our constitution.”
“We look forward to working with Senator McCain and many other elected leaders to accomplish this. We hope that U.S Senator Barack Obama will join Senator McCain in endorsing the initiative, and would welcome his support as well.”
Romer, Governor of Colorado, et al. v. Evans et al. (94-1039), 517 U.S. 620 (1996).
Justice Scalia , with whom The Chief Justice and Justice Thomas join, dissenting.
The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.
In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent.
Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 4. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid.
In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 8. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In Evans v. Romer, 882 P. 2d 1335 (1994), the Colorado court stated:
"[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, §24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, §24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, §28-3-506, 11B C. R. S. (1989); and for any legal, off duty conduct such as smoking tobacco, §24-34-402.5, 10 AC. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (emphasis added).
The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. §24-34-402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death benefit payments to the "life partner" of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored.
Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 9. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.
The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature--unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.
The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i.e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral procedural discrimination against them (i.e., the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral procedural discrimination" has not hitherto been heard of: a law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special--something that cannot be justified by normal "rational basis" analysis--in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic.
I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment--for the prohibition of special protection for homosexuals. [n.1] It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U.S. 186 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years--making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Padula v. Webster, 822 F. 2d 97, 103 (1987).) And a fortiori (With Yet Stronger Reason) it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.
Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater includes the lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some courts of appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F. 3d 261, 267 (CA 6 1995) ("[F]or purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct"); Steffan v. Perry, 41 F. 3d 677, 689-690 (CADC 1994). The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices; and relationships. Each characteristic provides a potentially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons") (emphasis added).
But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation" is an acceptable stand in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect," Dandridge v. Williams, 397 U.S. 471, 485 (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual "orientation" who actually engage in homosexual conduct. As Justice Kennedy wrote, when he was on the Court of Appeals, in a case involving discharge of homosexuals from the Navy: "Nearly any statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F. 2d 788, 808-809, n. 20 (CA9 1980) (citation omitted). See also Ben Shalom v. Marsh, 881 F. 2d 454, 464 (CA7 1989), cert. denied, 494 U.S. 1004 (1990).
Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2--which is a facial challenge--must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitutional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4-5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian"). [n.2]
The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice.
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons--for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct--that is, it prohibits favored status for homosexuality.
But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court's portrayal of Coloradans as a society fallen victim to pointless, hate filled "gay bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, §1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution").
There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").
By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities-- Aspen, Boulder, and Denver--had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code §13-98 (1977); Boulder Rev. Municipal Code §§12-1-1 to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV §§28-91 to 28-116 (1991). The phenomenon had even appeared statewide: the Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agency heads to "ensure non discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.
That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before.
"[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive . . . .
"It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 11-12.
As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group--whether drug addicts, or smokers, or gun owners, or motorcyclists--from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists.
But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, §4; N. M. Const., Art. XXI, §1; Okla. Const., Art. I, §2; Utah Const., Art. III, §1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state legislated, or perhaps even local option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress, by the way, required the inclusion of these anti polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the anti polygamy provisions be "irrevocable without the consent of the United States and the people of said State"--so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote--so utterly alien to our constitutional system, the Court would have us believe--has not only happened, but has received the explicit approval of the United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U.S. 333 (1890), Justice Field wrote for a unanimous Court:
"In our judgment, §501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added).
To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U.S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars--Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U.S. 3, 24 (1883), quoted ante, at 14. [n.3]
This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993). It remains to be explained how §501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?
I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies . . . conventional [constitutional] inquiry," ante, at 10, and "confounds [the] normal process of judicial review," ante, at 11, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:
"[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self governing commonwealth, fit to take rank as one of the co ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45.
I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than " `a bare . . . desire to harm a politically unpopular group,' " ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. §6-4(b); Executive Committee Regulations of the Association of American Law Schools §6.19, in 1995 Handbook, Association of American Law Schools. This law school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. § 12211(a) (1988 ed., Supp. V).
* * *Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.
Notes
1 The Court evidently agrees that "rational basis"--the normal test for compliance with the Equal Protection Clause--is the governing standard. The trial court rejected respondents' argument that homosexuals constitute a "suspect" or "quasi suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See Evans v. Romer, 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, see Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently identifiable class[es]" to "participate equally in the political process." Ante, at 4.
2 The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable," 882 P. 2d, at 1349. That statement was premised, however, on the proposition that "[the] four characteristics [described in the Amendment--sexual orientation, conduct, practices, and relationships] are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons." Id., at 1349-1350 (emphasis added). As I have discussed above, if that premise is true--if the entire class affected by the Amendment takes part in homosexual conduct, practices and relationships--Bowers alone suffices to answer all constitutional objections. Separate consideration of persons of homosexual "orientation" is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class.
3 The Court labors mightily to get around Beason, see ante, at 12-13, but cannot escape the central fact that this Court found the statute at issue--which went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote--"not open to any constitutional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "single[d] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome." Ante, at 12-13. But if that is so, it is only because we have declared the right to vote to be a "fundamental political right," see, e.g., Dunn v. Blumstein, 405 U.S. 330, 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 10. Finally, the Court's suggestion that §501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status" (rather than conduct) opens up a broader debate involving the significance of Bowers to this case, a debate which the Court is otherwise unwilling to join, see supra, at 6-9.
The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.
In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent.
Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 4. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid.
In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 8. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In Evans v. Romer, 882 P. 2d 1335 (1994), the Colorado court stated:
"[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, §24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, §24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, §28-3-506, 11B C. R. S. (1989); and for any legal, off duty conduct such as smoking tobacco, §24-34-402.5, 10 AC. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (emphasis added).
The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. §24-34-402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death benefit payments to the "life partner" of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored.
Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 9. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.
The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature--unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of.
The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i.e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral procedural discrimination against them (i.e., the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral procedural discrimination" has not hitherto been heard of: a law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special--something that cannot be justified by normal "rational basis" analysis--in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic.
I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment--for the prohibition of special protection for homosexuals. [n.1] It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U.S. 186 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years--making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Padula v. Webster, 822 F. 2d 97, 103 (1987).) And a fortiori (With Yet Stronger Reason) it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.
Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater includes the lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some courts of appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F. 3d 261, 267 (CA 6 1995) ("[F]or purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct"); Steffan v. Perry, 41 F. 3d 677, 689-690 (CADC 1994). The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices; and relationships. Each characteristic provides a potentially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons") (emphasis added).
But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation" is an acceptable stand in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect," Dandridge v. Williams, 397 U.S. 471, 485 (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual "orientation" who actually engage in homosexual conduct. As Justice Kennedy wrote, when he was on the Court of Appeals, in a case involving discharge of homosexuals from the Navy: "Nearly any statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F. 2d 788, 808-809, n. 20 (CA9 1980) (citation omitted). See also Ben Shalom v. Marsh, 881 F. 2d 454, 464 (CA7 1989), cert. denied, 494 U.S. 1004 (1990).
Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2--which is a facial challenge--must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitutional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4-5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian"). [n.2]
The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice.
First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons--for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct--that is, it prohibits favored status for homosexuality.
But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court's portrayal of Coloradans as a society fallen victim to pointless, hate filled "gay bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, §1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution").
There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").
By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities-- Aspen, Boulder, and Denver--had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code §13-98 (1977); Boulder Rev. Municipal Code §§12-1-1 to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV §§28-91 to 28-116 (1991). The phenomenon had even appeared statewide: the Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agency heads to "ensure non discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.
That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before.
"[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive . . . .
"It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 11-12.
As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group--whether drug addicts, or smokers, or gun owners, or motorcyclists--from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists.
But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, §4; N. M. Const., Art. XXI, §1; Okla. Const., Art. I, §2; Utah Const., Art. III, §1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state legislated, or perhaps even local option, basis--unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
The United States Congress, by the way, required the inclusion of these anti polygamy provisions in the constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the anti polygamy provisions be "irrevocable without the consent of the United States and the people of said State"--so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its constitution to be "republican in form and . . . in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote--so utterly alien to our constitutional system, the Court would have us believe--has not only happened, but has received the explicit approval of the United States Congress.
I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U.S. 333 (1890), Justice Field wrote for a unanimous Court:
"In our judgment, §501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added).
To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has of course been overruled by later cases. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U.S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars--Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 1, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U.S. 3, 24 (1883), quoted ante, at 14. [n.3]
This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e.g., . . . Davis v. Beason, 133 U.S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 (1993). It remains to be explained how §501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not?
I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies . . . conventional [constitutional] inquiry," ante, at 10, and "confounds [the] normal process of judicial review," ante, at 11, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:
"[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self governing commonwealth, fit to take rank as one of the co ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45.
I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war.
But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than " `a bare . . . desire to harm a politically unpopular group,' " ante, at 13, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.)
When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. §6-4(b); Executive Committee Regulations of the Association of American Law Schools §6.19, in 1995 Handbook, Association of American Law Schools. This law school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e.g., Employment Non Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990, see 42 U.S.C. § 12211(a) (1988 ed., Supp. V).
* * *Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.
Notes
1 The Court evidently agrees that "rational basis"--the normal test for compliance with the Equal Protection Clause--is the governing standard. The trial court rejected respondents' argument that homosexuals constitute a "suspect" or "quasi suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See Evans v. Romer, 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, see Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently identifiable class[es]" to "participate equally in the political process." Ante, at 4.
2 The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable," 882 P. 2d, at 1349. That statement was premised, however, on the proposition that "[the] four characteristics [described in the Amendment--sexual orientation, conduct, practices, and relationships] are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons." Id., at 1349-1350 (emphasis added). As I have discussed above, if that premise is true--if the entire class affected by the Amendment takes part in homosexual conduct, practices and relationships--Bowers alone suffices to answer all constitutional objections. Separate consideration of persons of homosexual "orientation" is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class.
3 The Court labors mightily to get around Beason, see ante, at 12-13, but cannot escape the central fact that this Court found the statute at issue--which went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote--"not open to any constitutional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "single[d] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome." Ante, at 12-13. But if that is so, it is only because we have declared the right to vote to be a "fundamental political right," see, e.g., Dunn v. Blumstein, 405 U.S. 330, 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 10. Finally, the Court's suggestion that §501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status" (rather than conduct) opens up a broader debate involving the significance of Bowers to this case, a debate which the Court is otherwise unwilling to join, see supra, at 6-9.
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