Friday, February 10, 2023

Is the U.S., as Biden said in his SOTU, "the only nation in the world built on an idea?"

by Michael C. Dorf

Very near the end of his State of the Union address on Tuesday night, President Biden said that the United States is 

the only nation in the world built on an idea. The only one. Other nations are defined by geography [and] ethnicity, but we're the only nation based on an idea. That all of us, every one of us, is created equal in the image of God. 

There are four claims there: (1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea.

The good news is that no one in the chamber booed or heckled when Biden delivered the foregoing patriotic and inspirational lines. The bad news is that none of those four propositions is true. I offer the analysis below not so much as a criticism of Biden in particular--who, in making the foregoing statement expressed something like the conventional wisdom offered by American politicians--but as a critique of a common brand of American exceptionalism.

(1) The U.S. is not defined by or based on geography or ethnicity, but is instead founded on an idea.

When I was a law student in the late 1980s, I took a graduate seminar on early American constitutionalism with the preeminent historian Bernard Bailyn. I learned a great deal from Bailyn, but he was not infallible. For example, he made roughly the same claim about geography and ethnicity that Biden did. Bailyn did so one day in an apparently unplanned digression about the Iran-Contra affair.

In his testimony to Congress, Bailyn said, Oliver North justified his extra-legal actions as serving a higher cause of the American People, which North claimed, transcended any particular legal restrictions. Bailyn said that North's statements ran counter to a very strong tradition of viewing the American nation as created by and thus synonymous with the United States government. I'm paraphrasing because I don't recall Bailyn's exact words but he said roughly this: "In France, you can have the first, second, third, fourth, and fifth Republics, but the nation of France persists through all of them. Here, by contrast, there is no United States without the Constitution." I believe that's what Biden meant by distinguishing geography and ethnicity as the basis for a nation from an idea as the basis for a nation.

However, Bailyn was wrong, and so is Biden. Don't believe me? Consider the view of John Jay, who held numerous important positions in the early United States. He was President of the Continental Congress during the Revolutionary War, the first Chief Justice of the United States, Governor of New York, and more. Along with Alexander Hamilton and James Madison, Jay was also one of the authors of the Federalist Papers. Here he is in Federalist No. 2:

I have . . . often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.

In that brief statement you see both geography and ethnicity as the basis for the American nation. The "one connected country" invokes the notion that in the nineteenth century would come to be called "manifest destiny." The North American continent's expanse from sea to sea is "the country" that was "made for" the American People, who are, in Jay's telling, united by ancestry, language, religion, manner, and customs--in other words, by ethnicity. Jay thus thought--and appealed to the People of New York to ratify the Constitution with the claim--that America was a nation very much defined by geography and ethnicity.

That's not to deny that ideas also played a role in the construction of the American nation. As my colleague Aziz Rana observed in his magnificent 2010 book The Two Faces of American Freedom, the history of America has been defined by the struggle between two conceptions of the nation: the settler Republic that Jay described versus the idealistic vision asserted by Bailyn, Biden, and others. Both are real and deeply rooted, but it's simply wrong to claim that geography and, even more, ethnicity, played no role in the founding of America. On the contrary, they played a very large role.

(2) The idea on which the U.S. is based is human equality.

Many proponents of American exceptionalism claim that the United States is based on an idea, but they disagree about what that idea is.

Here's Charles Krauthammer: "America is the only country ever founded on an idea. The only country that is not founded on race or even common history. It's founded on an idea and the idea is liberty."

Here are Reed Galen, Steve Schmidt, Stuart Stevens and Rick Wilson of the Lincoln Project reacting to January 6th: "America is the only country founded on an idea, and it was the most radical idea of its era; the belief that citizens could govern themselves."

That's three statements that America is uniquely founded on an idea, singular, and three different ideas: equality (Biden); liberty (Krauthammer); and self-government (Lincoln Project). If I tried, I could probably find a few others. Perhaps one might add federalism to the list of singular ideas that define America. Here's Justice Kennedy concurring in U.S. Term Limits v. Thornton:
Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design . . . .
In reality, of course, the United States government gives effect to multiple values, including equality, liberty, self-government, and federalism. As Isaiah Berlin and others persuasively argued, sensible individuals and well-ordered polities have commitments to multiple values, which sometimes overlap and sometimes conflict. It is possible perhaps to found a nation based on ideas, but not on a single idea.

Moreover, if one were to choose one idea as the most important to the founding of the American nation, equality would be a peculiar choice. It's true that the Declaration of Independence declares that "all men are created equal," but the assertion was obviously rank hypocrisy in light of the institution of race-based slavery.

Meanwhile, the Declaration also extols liberty and self-government. And whereas those two commitments found their way into the operative fundamental law of the original Constitution and Bill of Rights, there would be no constitutional text enshrining equality until 1868. Even then, Section 1 of the Fourteenth Amendment does not require equal protection from the federal government. That commitment would not come until two cases in the middle of the 20th century--one that betrayed the very principle it announced (Korematsu v. United States) and the other (Bolling v. Sharpe) that finally began to redeem the Declaration's grand assertion.

(3) The idea of human equality is Divine in origin.

Insofar as we indulge the highly problematic assumption that the Declaration is the founding articulation of equality as the central American idea, we might point to the fact that it asserts that human beings (okay, just men) are created equal. And who creates them? The very next phrase of the same sentence says "that they are endowed by their Creator with certain unalienable Rights . . . ." Reference to the capital-C Creator makes clear that so far as the Declaration is concerned, human equality and all human rights originate with God. Score one for Biden?

Not so fast. When Thomas Jefferson, the author of the Declaration, became the third President, he pointedly refused to issue Thanksgiving proclamations. Why? Because notwithstanding the Declaration's rhetoric, once again the operative foundational document--the Constitution--is deeply secular. It grounds its authority not in any Providential design but in the popular sovereignty of "We the People." The original Constitution's only reference to religion comes in Article VI, which states that "no religious test shall ever be required as a qualification to any office or public trust under the United States." The First Amendment protects free exercise of religion, of course, but that includes the freedom to profess no religion.

What about the Establishment Clause, which some scholars argue was originally understood to protect state established churches against federal disestablishment rather than to enshrine Jefferson's notion of a wall of separation between church and state? Even crediting that understanding, at most it stands for the proposition that the Constitution requires Congress to tolerate state religious establishments. It hardly makes religion the basis for an ideal of equality or the nation-state.

To be sure, Jefferson was an outlier. Other Presidents (up to and including Biden, who closed his State of the Union with the now-customary invocation of God's blessing) have not been nearly so punctilious about separating religious and secular authority. From the Founding, a great many public figures and ordinary citizens have looked with skepticism on non-believers. And our current Supreme Court treats religion as the equivalent of a most favored nation.

But all of that is to say simply that just as for most of our history we have acted inconsistently with the Declaration's commitment to human equality, so for most of our history we have betrayed the Constitution's commitment to secularism. That commitment is not, of course, hostile to religion. In the 17th century, Roger Williams (who was a Biblical literalist) famously argued for church-state separation to protect the purity and integrity of the church (which he described with the metaphor of a garden) from the (wilderness of) the state. 

We can and do hotly debate what counts as religious freedom, when other interests should override it, and the scope and meaning of the anti-establishment principle. What is not debatable is whether religious principles are the basis for the United States as a nation. They are not.

(4) No nation other than the U.S. is built or based on an idea.

Given what I said above in (2)--that it's not sensible to base a polity on a single idea--maybe this claim is true. And in a trivial sense it is. If no nation can be based on an idea, then no nation other than the U.S. can be based on an idea. But a better way to analyze the proposition is comparative. Can we point to other nations that are based on ideas at least to the extent that the U.S. is? The answer is almost certainly yes.

Consider France, which Bailyn used as a contrast to the U.S. It's based on a number of ideas. First, despite important interruptions--especially Napoleon, the Bourbon Restoration, and the Vichy regime--one can locate the Revolutionary ideals of liberté, égalité, and fraternité as central to the French nation from almost the exact same historical moment as the American Founding. The ideals expressed in the 1789 Declaration of the Rights of Man and the Citizen closely resemble those of the American Declaration, Constitution, and Bill of Rights. Other central ideas of the French nation include laïcité--comparable in some but not all respects to American church-state separation--and of course French culture. Even then, the role of French culture in national identity is not exactly ethnocentric, insofar as (in principle though hardly perfectly in practice), persons who themselves or whose ancestors were born elsewhere can become French by assimilating. Racism is real in France, just as it is in the United States, but no one watching Kylian Mbappé and the rest of Les Bleus can think that France is simply defined by geography and ethnicity.

Meanwhile, for much of the 20th century, the Soviet Union and, following World War II, its satellite states in eastern Europe, as well as China, Cuba, and various other communist countries were based on a set of ideas--albeit bad ideas: the dictatorship of the proletariat; state ownership of the means of production; etc. In addition to causing enormous suffering, these ideas never fully displaced geographic or ethnic grounds for nationhood. Today the Chinese Communist Party pays lip service to communism but practices authoritarian state capitalism and appeals to Chinese nationalism for legitimacy, but that just goes to show that in just about all places, geography, ethnicity, and ideas that are professed but not necessarily practiced contribute to the mythology and authority of the nation-state.

 * * *
Accordingly, Biden's American exceptionalist claim is false in every way. In a follow-up essay next week, I'll explain how belief in American exceptionalism of the sort the President and others tout is harmful both at home and abroad.

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