The Framers Prescient Fears Come to Fruition in this Season of Discontent

Last Wednesday as the U.S. Capitol was under siege in a violent attack, which left 5 dead, several injured, scores arrested and a country on the brink, I was in the midst of an Ignatian retreat. After my requisite and fruitful prayer periods on January 6th, I tuned into the evening news and was stunned by the images I saw. Many have since described the scene and images as surreal – that was certainly my experience. I would add sadness, dismay and anger to the emotions I experienced a week ago, and which continue a week hence.

The irony hit home to me later that evening as I was still processing the events and their import for our nation. I was spending an entire focused week – except for the evening news – working on developing greater interior freedom, as the Spiritual Exercises of St. Ignatius seek to foster, at a time when the country was embroiled by an explosive crisis, the fuse of which was lit by the president of the United States. In my previous blog post I noted that leaders who lack an ordered soul (interior freedom) manifest social chaos and tumult. Never would I have imagined that five days later this point would be magnified through the chilling events at the U.S. Capitol. As Americans and President Trump have both discovered, he is neither a philosopher nor a king. As I write this, Trump wears the ignominious distinction of having been the only president in United States history to have been impeached twice.

I have had the privilege of teaching jurisprudence (the philosophy of law) at St. Thomas law school twice and I am preparing to teach it for a third time, beginning next week. In another ironic twist, the one course I was allowed to waive for my political science major in college was political philosophy. Political philosophy is a central foundation of jurisprudence and thus I have had to do a deep dive the past couple of years. In studying American constitutionalism which we take up in the course, I am consistently amazed at the brilliance of our Constitution as well as how the Framers were able see ahead of the curve and anticipate so many potential conflicts and social fissures.

Prescient and prolific were the multiple concerns and values that led the Framers of the Constitution to, in some ways brilliantly, forestall the excesses that come from our wounded human nature or predict some of the unique challenges that our republican democracy has faced, and is now facing in acute reality. In case the reader thinks I am choosing sides, I will briefly lay out various social ills that we are experiencing in this unique season of discontent. There is much blame to be levied across the political spectrum and across the expanse of American culture. As I indicated in the previous blog post, the pandemic and our current tumultuous events are akin to stepping on a treadmill – it reveals either good underlying health or pathology. It is striking that the Framers seemed to anticipate and foresee many of the challenges that our nation is laboring under today. Below is a brief and non-exhaustive list.

1.) The Declaration of Independence rightly founded the new republic on natural rights that come from God, which highlighted life, liberty and the pursuit of happiness. From the beginning of the history of the republic and sadly enshrined in the original Constitution, a lack of liberty and equality for people of color was given the sanction of law. This national sin has persisted throughout the history of the nation and while some gains for justice and equality have been realized, the killing of George Floyd this past May and attendant protests, riots and social unrest communicate that we have a long way to go until all Americans experience equal liberty and justice in society and under law. I have communicated elsewhere that restorative justice and restorative practices hold strong potential to communicate the truth and harm of persistent racial injustice and transform hearts onto a more just and inclusive American society.

The right to liberty and equality under law must also be extended to the most vulnerable in our midst – our dear children in the womb – if America is to wake from this dark time and embrace a brighter future. The two above issues of justice mutually inform each other in moral clarity.

2.) The Framers were concerned about this new experiment in republican democracy in such a vast land – with various cultures and different approaches to life. Federalism is a value in our republican democracy, but it also can manifest, as the Framers foresaw, particular challenges and weaknesses in times of national crisis. Federalism leaves to the states broad authority in those powers not reserved to the federal government. The lack of a national approach to COVID and the hamstrung roll out of vaccinations are but a few examples of the challenges of our unique form of government. The differing approaches to election laws – state to state – have also posed problems and sown division and doubt. For the record, I have no doubt that this past election was a free and fair election, but my point is that our approach to federalism, especially in a time of tumult and social unrest, can amplify already pronounced divisions. We are seeing that on full display in the present moment.

Many experience two vastly different Americas and American cultures across the country, with much of the divide seen in rural and urban areas. I see this so clearly when I travel from Minneapolis to Northwestern Wisconsin on my day off. I experience two different Americas – only two hours apart – and have confessed to friends that given my unique personality, I enjoy both. But many don’t enjoy the other approach to American life and in fact revile and demean those who live and think differently, or those who place emphasis on different values. Whether our collective life together can be sustained and improved amidst so much doubt, division and diversity of values, remains to be seen. Certainly, the Framers foresaw these challenges of republican democracy in a vast land.

A caveat in in order here – in expressing concerns regarding the diverse approaches to life, values and culture in the United States, I am not advocating for an all-controlling central bureaucracy. That has always resulted in more problems than good. E pluribus unum is still possible in American life, but it requires a commitment to robust and respectful pluralism that sees diversity of thought and expression as a value. More on this below. “Out of the many one” must also dialectically embrace liberty and social solidarity, which is not presently the case in the United States. Approaches to the pandemic have shone a concerning lack of social solidarity in too many places and among too many people.

I strongly embrace the Catholic social teaching principle of subsidiarity, which is a corollary of federalism. Subsidiarity respects the freedom of lower level associations and provides room (or help when needed) to craft life according to particular values. However, subsidiarity also allows for moving decisions to a higher level of authority when circumstances warrant. A global pandemic afflicting an entire nation with record setting deaths every day would seem to provide those justifiable circumstances for a more centralized response to COVID. The opposite approach is simply the liberty tail wagging the dog toward our collective demise.

(3.) Freedom of religion and freedom of speech/association were of paramount importance to the Framers – thus their position of primacy in the Bill of Rights. There is great and not unfounded concern that both rights are under present attack and will continue to be in the future. Secularism seeks to limit both freedoms or to relegate them to second class citizens. It must be noted that neither freedom is absolute. As I teach my law students, freedom of religion cannot be used to justify transgressing the public good, particularly when that transgression amounts to harming the vulnerable, especially children. Certain dioceses of the United States have learned the limits of religious freedom, including the Archdiocese of St. Paul and Minneapolis.

Many have voiced justified concern that recent calls for healing and unity in the United States, while noble and and sincere for some, will carry with others, less noble, a pernicious push for uniformity of thought that seeks to cancel those who dare to express differing views on controversial issues. The amazing power of tech companies to deliver a sledge hammer that all too willingly cancels all that it deems out of bounds should be rightly opposed. Again, as above, distinctions are important – true hate and acts contrary to the dignity of the human person should always be opposed. But our culture – and that is the real issue – American culture is producing harm in so many ways – unmoored from the wisdom of truth and many of the founding principles of the nation – too often promotes the apparent good and reviles the authentic good. American culture and certainly the cancel culture takes neither the time nor the care to discern the difference. Why bother when smug certainty and prevailing opinion is squarely on your side. And that’s the brilliance of the Framers and American constitutionalism, it seeks to rightly check, via the rule of law, both the angry seditious mob AND the tyranny of the majority. Both are dangerously afoot today.

And I have not even gotten to the elitism that abounds throughout American culture often on the back of shackled consumerism – and the growing disparities and inequality that can be seen across so many categories. Elitism does not serve others – it grasps, clings to and amasses power and control. It seeks to subjugate others and misshapes American culture from the exalted throne of self sufficiency and concentrated wealth and power. I will leave more on that topic for another time.

Which brings me to two quick conclusions to a blog post that was entirely too long and much longer than I had intended. We are at a significant inflection point for our nation and in a perilous time. The future and a return to some semblance of national health is in no way assured. Just the opposite – in many ways there is more cause for concern and alarm presently than there is for hope. I am not a pessimist, but I am a realist. More importantly, as a Christian, I am a person of hope. I do have hope and it lies in fellow American Catholics and other Americans of good will and justice. Catholics must step up and lead with humility, boldness, charity and a commitment to moral truth, justice and social solidarity. And we must do so with little effective leadership from American bishops. Where are many of their voices? Significantly absent during this pressing time. Other bishops and priests have countenanced, supported or even celebrated the caustic hate of a failed leader who has put the country on the brink. And they have done so wrongly claiming the cover of Catholic teaching.

For Catholics of good will our road map is in the teachings of Christ and the teachings of the Church. Gospel values and the vision of Catholic social teaching align well with American values of self governance and the God-given natural rights that form the foundation of our Constitution and republican democracy. Strong bridges can be built to a brighter and more just American future. Let’s get busy building those bridges – together.