Constitutional Patriotism and the Threat of Tribalism

 Examples of political tribalism abound in today’s America, raising the question of whether our democracy can survive. Two law professors say it can if we return to ‘constitutional patriotism’ and defend the principles that united us as a country in the first place.

Examples of political tribalism abound in today’s America, raising the question of whether our democracy can survive. Two law professors say it can if we return to ‘constitutional patriotism’ and defend the principles that united us as a country in the first place.

As a contentious confirmation hearing for a US Supreme Court nominee grabs the national spotlight, a more serious question looms about the state of American democracy. Is it fading? Does anyone care? Can democracy survive?

A pair of Yale law professors say the way for democracy to survive is to return to “constitutional patriotism.” “We have to remain united by and through the Constitution, regardless of our ideological disagreements,” they write in an article published in the October 2018 issue of The Atlantic.

The challenge, according to Amy Chua and Jed Rubenfeld, is that “Americans have come to view the Constitution not as a statement of shared principles, but as a cudgel with which to attack their enemies.”

That’s regrettable, they argue, because the Constitution was the vehicle that created a nation out of colonies, a mix of nationalities and diverse, often warring religions.

“The Constitution managed to overcome these divisions,” Chua and Rubenfeld said. “The way it dealt with religion is illustrative. Colonial America had not embraced tolerance; on the contrary, the dissenters had become persecutors. Virginia imprisoned Quakers. Massachusetts whipped Baptists. Government-established churches were common, and nonbelievers were denied basic civil and political rights.

“But in a radical act, the Constitution not only guaranteed religious freedom; it also declared that the United States would have no national church and no religious tests for national office. These foundational guarantees helped America avoid the religious wars that for centuries had torn apart the nations of Europe.” 

The Constitution created a republic, in large part because founding father James Madison feared “rule by mob” as much as rule by tyrant. The Constitution reflected the viewpoint of the Enlightenment that wise men (they were all men in those days), separated from “local passions,” would make wise decisions. That’s how we got the Electoral College.

Madison and other founding fathers also loathed partisanship, but the Constitution they created did little to prevent the formation of political parties and factions. The founders themselves became ardent partisans.

Many of the same animating issues of those days persist today: racial divisions, farm versus factory, South versus North, the elite versus working class. Tribalism seems more intense now, Chua and Rosenfeld say, because a white majority is coming to an end, income inequality is growing and the news media is omnipresent.

“In these conditions,” the authors explain, “democracy devolves into a zero-sum competition, one in which parties succeed by stoking voters’ fears and appealing to their ugliest us-versus-them instincts.”

Instead of serving as a uniting set of principles, the Constitution has become its own punching bag. Progressives attack it as “irredeemably stained” by its initial compromise over slavery. Martin Luther King Jr. demanded racial justice promised in the Constitution. Now, constitutional protections such as freedom of speech, religious liberty and property rights are dismissed as dehumanizing, discriminatory and structurally unjust.

Political conservatives are “beginning to reject core constitutional principles,” Chua and Rubenfeld note, pointing to President Trump’s declaration that the news media is the “enemy of the people.”

Even the concept of “being American” is up for debate. Some see national identity in racial, ethnic or religious terms, Chua and Rubenfeld observe. Birthright citizenship has been questioned. Being of European descent or being Christian are offered as marks of being American. Chua and Rosenfeld strongly disagree:

“This trend runs counter to the Constitution’s foundational ideal: an America where citizens are citizens, regardless of race or religion; an America whose national identity belongs to no one tribe.

“America is not an ethnic nation. Its citizens don’t have to choose between a national identity and multiculturalism. Americans can have both. But the key is constitutional patriotism. We have to remain united by and through the Constitution, regardless of our ideological disagreements.”

Chua and Rubenfeld say there are lessons for both the tribal right and tribal left. Defending the Constitution requires more than “flag-waving” by the right; it requires dedication to constitutional principles of equality. The Constitution can’t simply be dismissed by the left as a “smokescreen for oppression;” it must be seen as the “most inclusive form of governance in world history,” even if many of the Founding Fathers were also slaveowners.

The constitutional challenges facing the nation at this time are serious. But democracy’s only route to survival, Chua and Rubenfeld contend, may be through rededication to the constitutional principles that got us this far.

“For all its flaws, the United States is uniquely equipped to unite a diverse and divided society. Alone among the world powers, America has succeeded in forging a strong group-transcending national identity without requiring its citizens to shed or suppress their subgroup identities.”

You can be Irish American, Syrian American or Japanese American, but if you live in France or Germany, you can only be French or German. That’s a lot more than a semantic difference.