American Creed: Politics and Law As Ideological Ritual

-- By MeaganBurrows - 16 Feb 2012

Hartzian Fragment Theory and the Liberal Consensus

Reading Thurman Arnold’s The Folklore of Capitalism reminded me of Louis Hartz's explanation for the uniqueness of American political ideology. Hartzian fragment theory posits that the United States, established when a specific ideological ‘fragment’ detached in opposition to prevailing principles of the nobility, lost the stimulus for ideological change that the ‘whole’ provides. As a result, America’s founders created a nation frozen in time; perpetually confined to an ideological ‘liberal consensus’ rooted in the Revolutionary rhetoric that spurred fragmentation from the British aristocracy. This presents American rhetoric as a stagnant, limited construct. Divorced from aristocratic history and the reactionary forces it inspires, American political discourse is bound to the ideological holy trinity of laissez-fair economics, property rights, and individual freedom.

From Consensus To Creed: A ‘Principled’ Path to Salvation

The liberal consensus is so symbolic of the American identity that it has become a ‘folklore’ or ‘religion’ that commands ritualistic devotion as a prerequisite for American social citizenship. Politicians in foreign nations do not characterize their opponents as ‘unItalian’, ‘unCanadian’ or ‘unFrench’. Only in the United States has the term ‘unAmerican’ become a fixture in the political vernacular. Politicians are branded as heretics for refusing to conform to the liberal consensus embodied in Revolutionary ideology and the quasi-biblical Constitution. Anything that interferes with these symbols and principles – even social welfare or justice – must be sacrificed at the altar of 'Americanism'. Democrats and Republicans are essentially the same - they operate in a limited ideological spectrum bounded by liberal ideals. While the American ethos is inspiring and valuable political currency for the sense of patriotism and belonging it instills in American citizens, pious adherence to the vague principles embodied in the ‘liberal consensus’ could serve to restrict freedom of thought, necessary institutional challenge, and national growth.

Legal and Political Ritual: The Danger of Transcendental Nonsense

The American creed can be likened to the man-made legal rules we have discussed in class. Both doctrinal fictions can be characterized as Cohen’s ‘transcendental nonsense’. The words ‘liberalism’ and ‘capitalism’ and the legal rules defining ‘corporation’, ‘property’ and ‘contract’ that we adhere to are self-referential. They exist in a hypothetical, ethereal vacuum, with no tangible meaning or grounding in reality until they are applied. As Arnold notes, these revered “legal and economic principles…have made our learning about government a search for universal truth rather than a set of observations about the techniques of human organization.” But what if there is no universal truth - no polarizing black and white, right and wrong, good and evil, us and them? While we value the supposed experience of discovering we are a part of something larger than ourselves, is clinging to the folklore we have been fed by ancestors, political parties and judges really worth the sense of community we derive from our dependence upon it? Blind adherence to abstract and meaningless principles comes at the cost of making critical observations about “techniques of human organization” and using these observations to create a composite for what we normatively want to see in both law and politics. As Arnold notes, “out of pure mystical idealism…men were opposing every self interest both of themselves and the community, because the scheme went counter to the folklore to which they were accustomed.” Acknowledging that the uncertainty inherent in ‘shades of gray’ is preferable to the necessarily restrictive and inadequate ‘black and white’ options may be scary at first. It would force use to relinquish our adherence to the overarching, vague principles that enable us to coalesce and find unity with those on our supposed ‘side’ of the ideological battle. It may temporarily destabilize the way we have been socialized to measure and assign meaning to our lives. Our individual sense of value, importance, and belonging may be threatened by refusing to conform to the legal and political fictions we have be raised to religiously revere. But perhaps we can emerge on the other side (or rather, in the middle ground of practicality) unscathed, and with a new method for deriving self-worth. We may measure our value, not by our ability to speak and conform to ‘transcendental nonsense’, but by our ability to engage with legal and political institutions and the people within them, to critically observe inputs, outputs and consequence, and to relinquish blind doctrinal loyalty to ‘principles’ and ‘rules’ in favor of pragmatism, realism and the pursuit of justice.

Dispelling the Illusion: ‘Things Are What They Do, Not What They Are Called’

Arnold’s Capitalism, Communism and Fascism are really just another form of Cohen’s transcendental nonsense – fictions, folklore, ceremonies and clichés created to distill complex political and legal realities into convenient and manageable compartments. But things are what they do, not what they are called. Communism is not the same in all its forms. It is does not have the same effects, structure, and impact at Time 1 and Time 2, or in Country A as in Country B. It is a malleable construct that can be tweaked, adjusted and refined so that it is no longer ‘COMMUNISM’, in the abstract sense, but a living, breathing system that has the potential for positive affect and social consequence. Just as rules don’t actually explain how legal cases are decided, ideological labels fail to account for the opportunities presented by the actual application of the rhetoric embodied within them. They are far too simplistic and discrete to explain the mass influx of forces - individual personalities, society, economics, history, institutional dynamics - working upon them, within them and for them at any given time. Acknowledgment of the restrictions posed by faithfulness to folklore in both politics and law enables us to capitalize upon political and legal opportunism. Creeds, symbols and slogans don’t need to be completely abandoned – in fact, they may be successfully manipulated for our own purposes. But we must recognize that blind faith to ideals can stifle creativity and improvement – only then can we move forward to create complex composites that more accurately reflect reality, enabling us to engage dynamically with society and affect substantive change. (996)