In this chapter we return to the more idealistic elements within America’s founding texts. How can we make sense, for example, of the coexistence of widespread approval during the founding generation of statements like Jefferson’s that “all men are created equal,” and of the continuing acceptance of the stark inequalities that characterized early America? This chapter tackles this question by turning to an essay by John Semonche, “The Ties that Bind,” in his book Keeping the Faith: A Cultural History of the Supreme Court (Rowman and Littlefield, 1998), 1-12.

This section introduces Semonche’s arguments with a focus on the place of law in American “civic culture.” The following section focuses more specifically on the ideas of an American “civil religion” and of an “American creed.” The word “creed” is used by some religions to describe short statements of key articles of faith.

Law and American Civic Culture: The Ties That Bind

At a time in American history when group seems to be pitted against group, when irradicable differences are stressed to the detriment of commonalities, and when social critics worry about the society falling apart, we need to take a fresh look at the ties that have bound a diverse people together. Americans are united within a civic culture that is much stronger than current worries suggest. These ties that bind are primarily legal, political, and spiritual; they nurture and promote the interests of the individual within a national community; and they are institutionalized within the American constitutional system.

From the beginning, Americans defined themselves in terms of ideas – liberty, equality, and republican government founded upon the people’s consent – and embarked upon an experiment to determine whether a people so defined could constitute an enduring nation. From the time of the Declaration of Independence, Americans were challenged to fulfill a founding myth that viewed the country as a divinely inspired asylum for those who sought liberty and opportunity.

Blessings, therefore, were to be shared with new arrivals. The idealistic core of American identity was only strengthened as successive waves of immigrants peopled the new land. It is this easily absorbed idea of a constitutional system that protects the individual that harmonizes great social, economic and even ethnic differences in American society. In the long run, this legal emphasis on the individual works against the stigmatization of any group of individuals.

When Thomas Paine exhorted Americans to shed their loyalty to King George III in 1776, he suggested that they crown law as their king. And this is precisely what Americans proceeded to do. What eighteenth-century Americans had in mind when they spoke of the rule of law was the common law tradition, as they had interpreted it, with its emphasis on the protection of individual rights and its restraint on arbitrary authority. The rule of law sought to embrace all official conduct under standards of fairness, impartiality, and equality. Its legitimacy stemmed from a faith in procedures and reasoned justification.

Those who see the law as a tool of powerful interests are refusing to come to terms with its significance in American culture, a significance it had at the time of national creation and a significance that it retains today. Law is “a community-defining totem,” a defining language that seeks both to provide meaning and cohesion and to inform action within the community. To appreciate the definition of law as language, we need to escape from our common conception of speech and writing as transparent means of communication and view language “not as a set of propositions, but as a repertoire of forms of action and of life. The law is inherently idealizing, taking as its constant subject what we ought to do, who we ought to be” [James B. White].

To describe a rule of law without talk of justice, equality, and common decency – as has so often been done – is to purge that concept of the very ideals that bind the diverse people called Americans together. The “single greatest achievement of Western political culture,” White has asserted, is “the discovery that a community can govern itself through a rule of law that attempts to create a fundamental moral and political equality among human beings.” The aspirational dimension of law is an integral part of an American creed.

American unity, however, is not based upon overwhelming agreement upon substantive matters but rather on procedural and relational ones; that is, how are differences among persons to be resolved. The American legal system provides the arena for resolving such disputes. In submitting the dispute to the resolution of courts, opposing parties are subscribing to a substantial consensus. They believe that the process will justly resolve their differences, that it respects them as individuals, and that it gives them the opportunity to be heard.

Such access to the judicial system provides an important means to present and argue new claims and eventually to bring about changes in the law. In this adversarial process lawyers play an important role. By transforming individual grievances into legal issues, lawyers contribute indispensably to making judges both understand and respond to the claims presented. In undertaking this responsibility, courts define and also educate a national community. The vocabulary of this conversation provides a rhetorical coherence to public life by compelling those who disagree about one thing to speak a language which expresses their actual or pretended agreement about everything else. By forcing litigants to speak the language of the law, something new is created – a place and mode of discourse, a set of relations, that form a central part of our civilization. The language and operation of the law thus define the political community in which contesting parties find their home.

Such a community cannot be created or maintained by force; this is why governmental repression, which seeks to replace difference with sameness, is so counterproductive. Within this national community the most fundamental notion of legality requires that the government justify any intrusions on the liberty and bodily integrity of its citizens.

The law provides so many roles that virtually all people in society have parts of the continuing drama, and over a lifetime the roles they play can and do change. First, we have the initial lawmakers – legislators and those administrators charged with formulating rules. Then, we have the initial law enforcers – the police and other governmental officials armed with the authority of the law. In the position of mediators between those who enforce and those who are the subject of enforcement are lawyers and arbitrators. And, finally, we have ordinary citizens, who are grand and trial jurors and who may be summoned as either civil or criminal defendants or who themselves, as plaintiffs, may summon others to the bar to redress some grievance.

Overseeing this drama and both directing and playing a complex major role, both as lawmaker and law enforcer, is the judiciary. The term “director” may be too limited, for it implies a script much more finished than the drama of the law provides. Perhaps the judiciary can be most usefully viewed as a dramaturge, that is, as a specialist in the art or technique of dramatic composition and theatrical presentation. This dramaturge’s work is ongoing, but continually it must explain, justify, and develop the drama in the direction of the essential goals of a rule of law.

This is what makes the judicial opinion such a rich source for viewing law as a culture-shaping force. Judges are not necessarily wiser than the other legal players, but the task imposed upon them is appreciably different. Legal texts are not self-interpretive, and eventually the authority of the law must rest upon judicial opinions that explain court decisions. Judges must respect the texts of the past, but they must also take adapt them to fit hanging circumstances. The judge thus establishes or modifies a discursive and political community with his readers, linking different generations and diverse individuals and groups in the present.

The tradition of a rule of law is strong in the popular mind. All polls and surveys reveal a strong American commitment to obey the law that is not explained in terms of rational calculations of self-interest – the so-called instrumental approach. The normative approach, which suggests that people voluntarily obey the law because it is the right or moral of the just thing to do, continues to be a much more accurate description. There is a prevailing faith in the law, its relationship to common morality, and the essential fairness of its procedures.

In fact, the law’s protections are so ingrained in the popular mind that they become generalized standards of judgement. “Life in modern America,” one legal historian has said, “is a vast, diffuse school of law.” Back in Jacksonian America the French traveler Alexis de Tocqueville had noted both the incorporation of legal language into everyday speech and a legalistic spirit pervading the whole society. In the century and a half since that time, public language has become even more legalistic in a continuing search for common values; it creeps into the languages that Americans employ around the kitchen table, in the neighborhood, and in their diverse communities. Legal standards become minimum moral standards, and an American commitment to the rule of law becomes no less than a matter of fundamental faith, a subject to which we now turn.