America has always been more diverse than most countries. Initially, that diversity meant different kinds of Christians–Maryland, for example, was Catholic, while the other original colonies were dominated by a variety of Protestant denominations. We are far more diverse these days, thanks to immigration, the splintering of numerous sects, and the explosive growth of the “nones,” Americans without religious affiliations.
We aren’t only diverse in our religious beliefs. Individuals represent different races, different regional cultures and backgrounds and very different political and ideological commitments.
The big question is: what sort of government can serve such wildly different citizens and be viewed as fair across all those differences? (That, of course, is a question that has long preoccupied political philosophers. John Rawls proposed a “Veil of Ignorance”–an intriguing mechanism for determining fairness.)
These days, as columnist Jennifer Rubin has written, an uncomfortable number of Americans are uninterested in fairness; they are interested in dominance. That faction is represented by a right-wing, activist Supreme Court and the Christian nationalists they favor. In their ahistorical vision of proper government, “a sliver of the electorate (White, Christian, male) exploits anti-majoritarian aspects of our democracy (e.g. the filibuster, the electoral college, gerrymandering) to use the awesome power of the government to impose values rooted in the 19th century on a diverse country.”
In that vision, the proper beneficiaries of public policy are mostly White, Christian and male, and elements of modernity like science and expertise, not to mention diversity, are “foreign, elite and alien.”
Rubin uses a speech by retiring Justice Breyer to explain the countervailing, constitutionally-anchored viewpoint–one that, as she says, recognizes the heterodoxy of America.
“This is a complicated country. More than 330 million people. My mother used to say, it’s every race, it’s every religion — and she would emphasize this — it’s every point of view possible. It’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they decided to help solve their major differences under law.”
This vision posits that to achieve “ordered liberty” for a diverse, noisy, rambunctious people, we must respect the right to self-determination — to choose one’s family, one’s lifestyle, one’s profession and one’s philosophy of child-rearing. That necessitates restriction on government so as to protect a sphere of private conscience. It’s what Louis Brandeis called the “right to be left alone.”
Poll after poll affirms that a large majority of Americans believe that the “right to be left alone”–the right to direct their own lives, consistent with their own moral commitments –should extend to such matters as contraception, abortion, same-sex marriage, child rearing and lifestyle.
Until the advent of this rogue court, the Supreme Court had largely agreed. As Rubin reminds us, even before Griswold v. Connecticut was decided in 1965, the court had protected the right to send your child to the school of your choice and receive instruction in a foreign language. In the 1950s, the Court affirmed the right to choose your profession; and the right to travel (neither of which is expressly set forth in the Constitution).
The court in 1923 held that “liberty” includes the right “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
After Griswold, that zone of privacy was extended to interracial marriage, private consensual sex, abortion, the right of grandparents to live with their grandchildren (i.e. how one defines a “single family”) and to same-sex marriage.
The zone of privacy erected by the Court is precisely what a fair reading of the Bill of Rights protects–the right of individuals to make personal decisions without government interference. That is precisely what the MAGA movement cannot abide: it wants government to “control how schools teach race, what teachers say about sexual and gender identity, how parents treat transgender children, and, now, whether women can be forced to give birth against their will.”
In response to the constitutional question “who decides?” the White Christian Nationalists of the MAGA movement respond: “we do.”
At stake right now is the individual’s right to live “free from the tyranny of the government and the mob.” As Rubin says, we need a counter-movement.
In sum, Americans need a counterweight to a Christian nationalist movement that seeks to impose on the majority the set of social beliefs of the minority. They need a movement to defend the myriad ways 330 million Americans engage in “pursuit of happiness” — ways as diverse as the country itself.