Moreover, the Framers used the federal structure to defend the country through recognizing state militias and constituting them into a National Guard. The states were not allowed to raise troops without explicit congressional authority. But the militias, made up of part-timers who lived at home and worked in civilian jobs until needed, were given the task “to execute the laws of the Union, suppress insurrections and repel invasion.” The Congress was to assure a certain standardization of procedures and training, but for the first hundred years of the country’s existence, the backbone of America’s military force did not depend on professional soldiers. The Spanish-American War and then the successive world wars would shift us toward a professional military. The National Guard would remain the “citizen-soldiers” that Jefferson so admired.
The Guard (and a second component, the National Reserve, made up of soldiers recently retired from active duty) is to this day a critical part of America’s fighting force in the country’s wars. They also remain the first line of homeland defense against natural disasters and, sometimes, civil strife. That division of responsibility has permitted the United States to make war against external enemies but not bring the military into domestic conflicts and thus the country’s politics.
Although the National Guard’s role as a militia in each state leaves it under the command of that state’s governor, the Guard can also be “federalized” under certain circumstances and called into the service of the president. When tensions or disagreements exist between a state governor and the president, the National Guard has sometimes been caught in between, leading to some of the most contentious moments in American history.
That includes the day in June 1963 when the Alabama National Guard was called upon by Governor George Wallace to prevent black students from entering the University of Alabama. Even though Brown v. Board of Education had declared segregation unconstitutional a decade earlier, university and state officials had gone to great lengths to prevent black students from enrolling. Now three admitted black students with impeccable credentials—Vivian Malone of Mobile, James Hood of Gadsden, and Dave McGlathery of Huntsville—approached the door to Foster Auditorium on campus, and the governor, backed by the Alabama National Guard, stood in their way.
My family and I watched the spectacle unfold on television. Standing in the doorway and flouting demands by federal marshals and the deputy U.S. attorney general that he step aside, the governor clearly did not intend to abandon his inaugural promise of “segregation now, segregation tomorrow, and segregation forever.” A few hours later, the commander of the Alabama National Guard unit, General Henry V. Graham, approached Wallace. “Sir,” he said, “it is my sad duty to ask you to step aside under orders of the president of the United States. As a member of the Alabama National Guard, I have been ordered into federal service this morning at approximately 10:30, and it is my duty to ask you to step aside in order that the orders of the court may be accomplished.” Graham’s Guard unit, the 31st Dixie Division, had been federalized and now reported to the president, not the governor. The general had been given conflicting orders and he had to choose which one to follow. Thankfully, he made the right choice. Wallace stepped aside from the doorway and the University of Alabama was integrated.
Americans have come to trust the arrangements that constrain the military’s political role. Many questions that were raw at our founding have receded into history. President Bush’s exasperation that he could not simply deploy the American military into the streets of New Orleans is testament to how distant concerns of a military takeover have become.
“Congress Shall Make No Law”
The marriage of religion, politics, and the power of the state has perhaps been the single greatest source of worldwide civil strife throughout history. Individual citizens hold multiple associations and loyalties and with varying intensity. Religion, though, makes a claim on the believer that is superior to any other. If that claim is confined to the individual and his right to practice matters of conscience freely, then there is not a problem. But if a group of citizens or the state itself transfers that superior call to the realm of politics, dissenters will by definition be disadvantaged. It is simply not possible to sustain freedom of religion for the individual if the state is committed to a particular set of religious beliefs.
The America about which we learned as schoolchildren was thus one in which freedom of religion and separation of church and state were foregone conclusions at the start. But as with everything in our history, practice has not always matched stated values. In the period before independence, some colonies had official churches, like the Anglican Church in Virginia, while other colonies, such as Rhode Island, imposed a stricter separation.
Many of the earliest settlers came to the new promised land fleeing religious oppression. Their experience imprinted the free exercise of their religion as a fundamental tenet of political life. The Puritans set themselves up in Massachusetts, endeavoring to build a pious society that would be a model for others. But although they were sure to protect their own rights to freely practice their faith, Puritan leaders were not as keen on respecting the rights of minority sects or nonconformists in their midst. Indeed, Roger Williams founded Rhode Island after being banished from Massachusetts for political agitation and not adhering to some aspects of the mainstream faith.
Religious difference was nevertheless tolerated to an almost unprecedented degree for the times. In part due to the bloody religious wars in Britain and Europe, the idea of religious tolerance in the colonies had a natural base of support—if only because the alternative would mean constant strife. Across the colonies there was great variation in both religious sects and religious freedom. Maryland, for example, under the stewardship of Lord Baltimore, a Catholic, passed a resolution that prohibited almost any negative action toward a fellow colonist based on his or her religion. In language that would serve as a model for the First Amendment more than a hundred years later, the Maryland Toleration Act of 1649 stated that “no person or persons whatsoever within this province… professing to believe in Jesus Christ shall from henceforth be in any ways troubled, molested, or discountenanced for or in respect of his or her religion, nor in the free exercise thereof.” The limitation to Christian faiths notwithstanding, the Toleration Act was a groundbreaking document, not least because it came at a time of heightened religious tension back in England, where the Anglican monarch (Charles I) had just been overthrown and executed by Puritan leaders of Parliament, and where Catholics were increasingly being persecuted.
On the other hand, in Virginia, Baptists were hounded and imprisoned, and Presbyterians found it hard to establish churches and were subject to frequent property seizure. Madison was struck by the sight of a Baptist preacher who was convicted for his “insurrectionist” sermons and insisted on continuing to preach from his cell.
The Framers were appalled by such persecution, and when they set about the work of writing the Constitution, they sought to protect religious conscience and separate the church from politics.
Madison and others reserved their harshest criticism for state religions obsessed with earthly wealth and power. Their argument was two-pronged: State religion was bad for the individual citizen, interfering with his most basic and personal of choices, and it was bad for religion, condemning the church to worldliness and corruption.7 Therefore, under the “establishment” and “free exercise” clauses of the First Amendment, the U.S. Congress can make no laws “respecting an establishment of religion or prohibiting the free exercise thereof.” Freedom of religion for the individual thus became closely associated with the separation of church and state.
These high ideals have not prevented religious prejudice in American social life and politics. It was not too long ago that candidate John F. Kennedy had to assure Americans that he would not answer to the Pope when making decisions as president of the United States. Anti-Semitism has a long and dark history in America. And Muslim Americans find themselves constant
ly professing their loyalty to the United States in answer to those who too easily draw a link between them and the violent extremists in the Middle East. As long as human beings fear those who are “different,” prejudice and suspicion will be a part of the human experience—and America is no exception.
Yet the Constitution gave “We the people” no religious identity. The state is to be blind to the question of the “true way.” That is meant to be the ultimate guarantee that none will be persecuted by the state because of religious beliefs.
Many have made the point that Christians founded America. These men and women lived in a time when at least some expression of Christian belief was an absolute necessity for moral propriety. Like many religious people, I find great comfort in the stories of their personal struggles to find meaning and, in some cases, to find God. But in the final analysis it doesn’t matter whether they were Christian believers, Deists, or atheists: Their intention was to create a system of governance that prohibited the privileging of one set of beliefs over another and allowed citizens the freedom to choose and practice religion without the interference of the state.
And through the constitutional process, Americans have been defining precisely what that means in practical terms. This flexibility has become more crucial as our own diversity has stretched to incorporate every known religious belief and the possibility of no religious faith at all. The questions that have arisen are wide-ranging. Some strike us as fundamental: Can the government compel obedience to a law that a citizen deems to be in contradiction to her religious beliefs? Others may seem more trivial: Do holiday decorations with a religious theme displayed on government property violate the separation of church and state? What is remarkable is that we have a Constitution that gives us a pathway to confront these questions. We do not, therefore, take up arms against one another to defend the claim that God is on our side.
Where Government Should Not Enter
The claim of America’s founding documents that the government should undertake to protect the right of citizens to life, liberty, and the pursuit of happiness is so broad as to be almost absurd. It makes perfectly good sense that citizens should enjoy freedom of speech and of religion, protection from the arbitrary power of the state, and the right to select those who would govern them. But a right to pursue happiness? How in the world can government guarantee that?
The answer lies in the fact that the government’s role was actually limited. There was no guarantee to happiness—only a promise to provide conditions of freedom and liberty that allowed citizens to pursue their goals. That has meant that happiness is pursued through individual initiative and free association with others.
The United States evolved in a way that made unprecedented room for private space and private activity. This is of course true for the economy, where in terms of “value added,” private industries account for more than 87 percent of GDP.8
Then there is the role of civil society in our national life. Civil society strengthens democracy by encouraging citizen participation, fostering democratic values, advancing the general welfare, providing for public goods, and counterbalancing the government. The United States has more than one and a half million non-governmental organizations. Large numbers of them, like the Sierra Club and the Chamber of Commerce, press the government on matters of policy, while others, like Common Cause and Judicial Watch, act avowedly as checks on the power of authorities. Still others allow citizens to organize and pursue good works on behalf of the less fortunate.
In America, civil society often delivers many of the services and societal goods that are wholly the purview of the government in other countries, even other democratic ones. Faith-based groups help resettle immigrants and refugees in their communities. Boys and Girls Clubs provide safe spaces for youth after school. National organizations like the Salvation Army and local soup kitchens and shelters feed, house, and clothe the poorest people. The Boy Scouts and Girl Scouts provide leadership training to young men and women, which the military recognizes with advanced enlistment ranks, and nonprofit blood banks provide lifesaving services to patients in hospitals, many of which are also private nonprofit organizations. All of these services depend on another “private” element that until recently was almost unique to the United States: philanthropy.
Rebuilding the nation after the Civil War, particularly in the area of education, was one of American philanthropists’ first major projects. And the arts have long been sustained largely by private support.
Large-scale giving increased at the turn of the twentieth century, as the economy created a growing number of millionaires (there were one hundred in the 1870s, four thousand in 1892, and forty thousand in 1916).9 And then in 1913, after the creation of the income tax, the government took an innovative step that entrenched philanthropy in American society: It made charitable giving tax-deductible. The philanthropic sector flourished in response. Foundations were established to take on a broader array of objectives and, no longer tied to specific projects, they increasingly had open-ended missions.
Neither was philanthropy the exclusive domain of the wealthy. Indeed, in the modern era, some research suggests that by some measures, less affluent Americans give just as much, if not more. In 2011, for example, Americans with earnings in the bottom 20 percent gave 3.2 percent of their incomes to charity, while those in the top 20 percent gave 1.2 percent.10 And as Americans continue to lead the world in philanthropic giving as a percent of GDP, they continue to give more every year, at even a faster rate than the growing economy. Over the past fifty years, charitable giving per American has increased 190 percent, while GDP per capita has increased 150 percent.11
In sum, civil society plays a role in almost every area of social responsibility in the United States. Some will argue that this constitutes an abrogation of government responsibility. They will cite holes in the social safety net that only government can fill. But the relationship of the citizen to the government has become a dialogue about rights and very little about obligations. Yes, one pays taxes, serves on juries, and obeys laws, but everything else is voluntary—even voting and serving in the military. The truth is that the United States has a substantial welfare state, and it has grown immensely over the last five decades. Arguably, therefore, citizenship is finding its deepest expression in this private space where individual citizens or groups of citizens take responsibility for one another. This is one of the strongest pillars of a stable democracy.
A Spirit of Constitutionalism
The institutional landscape that the Founders built rested on essential principles: a limited executive, balanced by a separately elected legislature and an independent judiciary; federalism as a constraint on the power of the central government; a huge space for independent forces—civil society and a free press; and religious freedom unbound by the preferences of the state.
The system was built for what Alexis de Tocqueville called “ceaseless agitation.” He noted that “Democratic liberty is far from accomplishing all the projects it undertakes with the skill of an adroit despotism… but in the end it produces more than any absolute government. [It] produces… an all-pervading and restless activity… a superabundant force, an energy which cannot be separated from it… and under favorable conditions… begets the most amazing benefits.”12
The American government was designed to require constant engagement, not just by officials but by citizens at multiple levels—local, state, and national. Americans were thus given peaceful means to contest political questions. That battleground was and has always been to lay claims before an American Constitution that has by any standard enjoyed a remarkable run. The Founders presciently built in mechanisms for revision, litigation, and evolution. In a sense, the struggle to make America’s democracy a bit better and inclusive—little by little—is the story at the core of its stability and success.
The experiment didn’t, of course, work perfectly. The early history of America is a story of near misses that almost unraveled the
compromises made on behalf of the young republic. The second president, the thin-skinned John Adams, signed into law the Alien and Sedition Acts, purportedly as wartime protection against foreign agents.13 A clear challenge to the First Amendment, the acts’ ban on criticizing the president or his administration was in practice used primarily to stifle attacks by political opponents and the press. Public opposition to the law was strong, however, and helped propel Thomas Jefferson to the presidency. Jefferson allowed the law to expire, but one can speculate that the United States of America would be a very different place had such a law remained in force. Early decisions can mark a country’s institutions permanently. In this case, Adams’s defeat in the 1800 election allowed the country to reverse course before the laws could do permanent damage. Today, America’s protection of free speech and of the press is arguably broader and more far-reaching than that of any other government in the world.
The transition to democracy in America was almost cut short by other close calls. A few decades after the Constitution was written, the influential John C. Calhoun of South Carolina, who was then vice president, put forth the disruptive notion of nullification. In response to the passage of a tariff law, he claimed essentially that the states could cancel (or nullify) the laws of the Union with which they disagreed. By refusing to pay the tariff, South Carolina was challenging the authority of the U.S. government. In late 1832, President Andrew Jackson reinforced deployments of federal troops in the state’s capital, Charleston, and positioned the navy off its shores. Jackson threatened to “hang” the members of the nullification movement (including Calhoun). The crisis was averted when Senator Henry Clay crafted a compromise to lower the tariff and undermine local support for the nullification movement, but not before South Carolina had already begun to raise its own army.
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