Why Is American Government Based on the Weakest Form of Social Control?

-- By KatySkaggs - 16 Feb 2012

Law is the Weakest Form of Social Control

Of the few things that seem to be in basic agreement among and between our class and professor, the most fundamental seems to be that we must question most things that seem given, because humans and human systems are, to varying degrees, all full of—let’s say mostly unconscious rationalizations; another idea that doesn’t stir up too much protest is that law is the weakest form of social control.

You think? It's always a tough sell to law students, who are ego-invested in the strength of "LAW" now that they have paid all the tuition. But I can't remember a bunch more troubled by the reality than this one.

Structurally, that defines all other forms of social control as more effective. Of these, religion was one of the most effective and widely used for thousands of years; its effectiveness was found in utilization of the threat and promise of theological salvation by a higher spiritual authority, enforced by a temporal earthly authority, and backed up by the social approbation or approval of our social peer group, who long-ago, were generally clustered geographically with others of the same faith.

Religion is a stronger form of social control, indeed, than law. But there are many forms of social control, and religion too is a form of control operating at the symbolic layer, where human beings have located more and more of their social activity over the last several thousand years. But human sociality is much older than homo sapiens, let alone older than writing or the form of religion you are depicting. And it cohered then and coheres now for reasons deeper than religion and more powerful still.

And, especially before the American Revolution, governments embodied the principle cujus region, ejus religio (“whose realm, his religion”); essentially, tying governmental law to the stronger social control of religious authority enhanced overall social control.

Who told you that 18th century British North America was like 16th-century Europe after the Peace of Augsburg? It's nonsense. I'm surprised you didn't make any effort to check. Now the rest of what you build on this substrate will necessarily be untrue.

Functionalism Guided the Exclusion of Religion from the New Government of the United States

In considering their assignment to fix the Articles of Confederation, the Framers considered how the colonies had been formed, the kinds of people that inhabited them, how state governments had been operating before and after the Revolution, and how other governments had historically operated. They were thinking, thus, functionally (though without the surveys, statistics and data-mining that we’d today consider thorough investigation).

Is this the conclusion you formed by reading Madison's Notes, or Yates, or someone's description of the Convention? One could rearrange the speeches under these heads, to be sure, and create a checklist of "things considered" that would have these categories boxed. But I don't think it would put forward a historically-sensitive account of the Convention. For this, and the nature of the religious structure and politics of post-Revolutionary America as they affected the making of the Constitution, the best single-volume introduction would be Richard Morris's Forging of the Union.

Why Did the Framers Turn to Functionalism?

In the Federalist No. 10, Madison argued that factionalism would be the greatest danger to a unified state. His purpose was to argue that the government would be most representative of equal citizens as a republic rather than a pure democracy; the reasons he cites for this help to articulate why the authors of the Constitution diverged from the Declaration of Independence’s by excluding references to a “Creator” or “Natural God.” The colonies were first populated by those fleeing religious persecution, but this eventually included many different faith groups (though basically all Christians), and led to certain colonies being characterized and governed according to the faith of its founders or majority population. The religious oppression these groups had fled was to be eliminated from the new American government; strong views held even by the majority of citizens should, in Madison’s opinion, be controlled by structuring government so that certain “inalienable” rights could not be denied even to minority groups.

What the Framers Rejected

Basically, the Framers were confronting the problem of creating a government that had legitimacy to most, or ideally all, of its citizens. They recognized that, given citizens of many different faiths, religious tenets could not form the basis of a common government because those tenets were objects of intransigent disagreement. So they rejected a system, theocracy, that would be unsatisfactory and realized they must articulate some other system of values that the citizenry could hold in common.

This is not factually inaccurate. But it's interpretively wrong-headed. The "Framers" didn't reject theocracy, anymore than they rejected Buddhism or antigravity. They never for an instant considered it. There wasn't a debate about the question. They were making a government that they did not for an instant conceive would have any religious policy, or any effect on the religious policies of the States. They made clear there would be no religious tests for office under the Federal Government, and they made sure that no oath of office for the Presidency would be drawn that would exclude a Quaker from being President (a step necessary to prevent the failure of ratification in Pennsylvania). With the exception of the members of the House, all federal officeholders were mediated by the state legislatures, which appointed the Senate and controlled the Electoral College. Of the House elections, the rules of election and control of the franchise rested with the state legislatures. Religious issues in state politics would no doubt affect state legislative elections: they regularly did so in some States, and occasionally did so in others. But the parties who wrote the 1787 Constitution in Philadelphia spent no significant time talking about religion in politics, and I can't think of a single moment in debate that could be characterized as about "rejecting theocracy," let alone arguing about whether to reject "theocracy."

I don't know what to do with the problem of historical inaccuracy here. I don't know what's left of the draft's main idea if its reconstruction of American constitutional history is (as it must be) reconsidered.

How to Gain Legitimacy Without Theocratic Authority

As Kurt Gödel asserted, no self-contained system can be wholly logical.

I'm not sure that's fair summary of the proposition. Do you need to this point at all?

But the Framers had to come up with a system that a geographically and theologically diverse group of people would all submit to.

Once again, this is a very strange formulation. In the first instance, the Philadelphia Convention was commissioned to do no more than report to Congress. The decision to break with their charter, and to present a plan of federation directly to state ratifying conventions was extra-legal. But even in doing so, I don't think it would in any way convey the nature of the sources to say that ratification was presented as "submission" to a new government. Your reading of the _Federalist Papers_ varies substantially from that usually given if you find their language advocates or even describes submitting the citizens of the States to the Federal Government in any way at all. I don't see how one could spend any time with the records of the state ratifying conventions or the memorials submitted to them that would suggest that the most ardent Federalists thought they were submitting State citizens to a new national government. I don't know what the content of Jeffersonianism is in your reconstruction, any more than I understand your Federalism.

Holmes, in “The Path of the Law,” recognized that “the bad man” will not be guided by morals, only by what the law actually does.

He's not a sociological description; he's a pedagogical device. What's he doing here?

So the Framers articulated principles, and eventually (by popular demand) a Bill of Rights, premised not on religious morality but on the idea that we (now everyone and not just white males) are endowed with certain rights that cannot be nullified or abrogated by the rights or actions of others.

Now you're having them invent the constitutional development of England from 1215 to the Glorious Revolution.

Performing a contemporary functionalist investigation of whether humans are actually equally endowed with certain inalienable rights generally reveals instead that society best functions when we all enjoy rough parameters of equality. So now we could justify the endowment (or recognition) of these rights by utilitarianism.

I don't know how you established that proposition. All I could see was an assertion. If you need to make this point, you need to show something in its support.

The Framers would have had no access to data that would reveal such justifications; they relied instead on their educations and common sense. In other words, they relied on a bit of transcendental nonsense to convince each citizen that certain rights were naturally inherent in each of them as well as in each of their countrymen, and if they wanted their own rights to be protected, they had to ensure everyone else’s were too.

This attributes to the makers of the Federal Constitution the creation of the long-developing 18th century British North American view of natural and political rights. Here one would want to consult, for an accurate view, Garry Wills' wonderful book on the intellectual background of the Declaration of Independence, Inventing America, and the first volume of John Phillip Reid's Constitutional History of the American Revolution: The Authority of Rights.

Why We Need to Keep Some of the Framer's Nonsense

I’d like to argue that this use of transcendental nonsense, premised on a great deal of essentially functionalist contemplation and debate by the Framers, was essential to eliminating the more harmful transcendental nonsense (or Jerome Frank’s definition of magical thinking) of theocratic governments. The old form of social control was too oppressive for the new, idealistic country, but for a more religiously-neutral system of laws to have any effective social control, it had to gain strength by legitimacy, and creating a nonsense of rights gave every citizen the feeling that government dealt with them as it dealt with every other citizen. As we’ve discussed extensively in class, many more layers of transcendental nonsense and legal magic have been laid successively on top of this original, functionally designed “inalienable rights” nonsense. While we correctly attempt, in our class and hopefully in our larger lives, to work at tearing down the nonsense that has resulted, to varying degrees, in the perversion of the Framers intent and the unadvised strengthening of particular groups (who gain power using wealth, political power, demagoguery, or that old religious magic), I’m afraid we’ll tear out that nonsense that was essential to us coming together as a united country. There may never be anything we can all agree on as “truth,” and our inherent and intractable subjectivity may keep us divided as to many different aspects of our lives, but the Framers’ nonsense about inalienable rights was functionally derived, can be justified through utilitarianism, and is essential as the basis for a functioning society. Flawed as we are, I think we must accept even that scant common ground.

As I say, you can't save the conclusion once it rests on so much historical inaccuracy.

The editorial mystery for me is why you didn't see the requirement to consult sources on the historical claims you were making.

Let's back up and figure out what the central idea was behind this draft. It wasn't, I think, a constitutional history proposition. The draft wandered there, it seems to me, and acquired difficulties it didn't need to suffer. Clear statement of the real underlying theme, and a development which either doesn't require American constitutional history at all, or is compatible with something interpretively recognizable, can then follow.