Civil Society, Metaphysics, and Tolerance

Indiana Law Journal

Volumn 72, Issue 2, 1997, Pages 488-495

  Williams, David C ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 1542603270     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (46)

1. See Marvin Becker, An Essay on the Vicissitudes of Civil Society with Special Reference to Scotland in the Eighteenth Century, 72 IND. L.J. 463, 465-67 (1997).
2. Relatedly, according to Professor Becker, the state must take care to ensure that the minimal material interests of its citizens are met, lest it invite revolution. Professor Becker therefore warns that the elimination of welfare in this country might lead to a breakdown in the general economic satisfaction necessary to allow civil society to flourish. See id. at 464-65, 471-72.
3. See id. at 472-73.
4. See id. at 468, 471-72.
5. See id. at 473.
6. See id. at 463, 470-71.
7. See id. at 464, 468-71.
8. See id. at 463, 473-76.
9. See id. at 465-66.
10. See id. at 469.
11. See ADAM B. SELIGMAN, THE IDEA OF CIVIL SOCIETY 12, 61-62 (1992).
12. See ROBERT H. WIEBE, SELF-RULE: A CULTURAL HISTORY OF AMERICAN DEMOCRACY 15, 72-75 (1995).
13. See id. at 23-26, 43-44.
14. See id. at 7, 16, 86-111.
15. See GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION (1992).
16. See JAMES M. MCPHERSON, ABRAHAM LINCOLN AND THE SECOND AMERICAN REVOLUTION 3-42 (1991).
17. The extent to which the Constitution was revolutionary has become a subject of considerable scholarly contention of late. See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995); Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995).
18. The extent to which the Constitution was revolutionary has become a subject of considerable scholarly contention of late. See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995); Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995).
19. The extent to which the Constitution was revolutionary has become a subject of considerable scholarly contention of late. See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995); Akhil R. Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994); Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995).
20. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 103-13 (1991).
21. See WIEBE, supra note 12, at 15, 42, 83.
22. See id. at 17-18, 42, 44-47.
23. See infra text accompanying notes 22-23 (discussing British imperial power and slavocracy).
24. See WIEBE, supra note 12, at 18; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969).
25. See MCPHERSON, supra note 16, at 1-22; WIEBE, supra note 12, at 96-100.
26. See WIEBE, supra note 12, at 27-30, 61, 65-70.
27. See id. at 23-27, 30-31, 44-46.
28. See BARRY A. KOSMIN & SEYMOUR P. LACHMAN, ONE NATION UNDER GOD: RELIGION IN CONTEMPORARY AMERICAN SOCIETY 8-9 (1993); WIEBE, supra note 12, at 90-91.
29. See RONALD G. WALTERS, THE ANTISLAVERY APPEAL: AMERICAN ABOLITIONISM AFTER 1830, at 37-53 (1976).
30. See WIEBE, supra note 12, at 107-08.
31. See SYDNEY E. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 1072-78 (1972).
32. See SACVAN BERCOVITCH, THE AMERICAN JEREMIAD 176-210 (1978); SACVAN BERCOVITCH, THE PURITAN ORIGINS OF THE AMERICAN SELF 136-86 (1975).
33. See SACVAN BERCOVITCH, THE AMERICAN JEREMIAD 176-210 (1978); SACVAN BERCOVITCH, THE PURITAN ORIGINS OF THE AMERICAN SELF 136-86 (1975).
34. The classic exposition of this idea is Madison's Federalist No. 10: A zeal for different opinions concerning religion . . . have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. . . . Extend the sphere [of a republic] and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. THE FEDERALIST No. 10, at 124, 127 (James Madison) (Isaac Kramnick ed., 1987).
35. See BERCOVITCH, THE AMERICAN JEREMIAD, supra note 30, at 181-90; SELIGMAN, supra note 11, at 71-91 (detailing the metaphysical roots of American civil society).
36. I do not, of course, mean to suggest that tolerance is the only important value, nor do I mean to suggest that tolerance alone will protect civil society. I do, however, mean to argue that cultural values like tolerance are more significant to the preservation of civil society than maintaining a politics of interest instead of a politics based on metaphysical claims.
37. See ABBOTT GLEASON, TOTALITARIANISM: THE INNER HISTORY OF THE COLD WAR 18, 107, 132, 172, 189, 285-86 n.92 (1995).
38. At the risk of belaboring the obvious, let me reiterate that I am not arguing that revolution or metaphysics or even democracy or egalitarianism are necessarily good things. Nor am I even arguing that they always support civil society. Rather, I am arguing that they sometimes support civil society and sometimes destroy it. To argue, as Professor Becker does, that there is an inherent tension between metaphysics or revolution on the one hand and civil society on the other is thus to oversimplify a complicated relationship.
39. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR (1970); MCPHERSON, supra note 16, at 3-10; WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 44-47, 60-90 (1988).
40. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR (1970); MCPHERSON, supra note 16, at 3-10; WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 44-47, 60-90 (1988).
41. See WIEBE, supra note 12, at 126-27, 130-31.
42. See David C. Williams, Pragmatism and Faith: Selznick's Complex Commonwealth, 19 LAW AND SOCIAL INQUIRY 775, 796-97 (1994).
43. See DAVID H. BENNETT, THE PARTY OF FEAR: FROM NATIVIST MOVEMENTS TO THE NEW RIGHT IN AMERICAN HISTORY (1988).
44. See WIEBE, supra note 12, at 81-82.
45. Again, I would like to make the precise nature of my argument clear. I am proposing that a culture of tolerance will promote civil society better than will a politics of interest. I am not proposing that a culture of tolerance is ever easy to obtain or preserve. Nor am I suggesting that a culture of tolerance is some kind of freestanding social structure; as I observe in the text, it is heavily dependent on other social factors. But I am suggesting that if, in the end, the culture becomes intolerant, civil society will wither. If we care about civil society, we must therefore take care to promote tolerance as a learned value within the culture. In my view, that claim is intensely realistic because, whether we like it or not, learned cultural values shape our destiny. By contrast, I believe that Professor Becker's faith in a politics of interest is somewhat unrealistic; we have altogether too many examples of such a politics becoming oppressive to civil freedoms.
46. See SELIGMAN, supra note 11, at 33-35. I mean here to suggest only that the Scots were right that exposure in public can promote tolerance and so civil society. I do not mean to suggest that they were also right that civil society rests on natural moral affections expressed in these public settings. Rather, it seems much more likely to me that tolerance is a learned cultural disposition.