What Tocqueville Can Teach Us About the Culture War

alexis_de_tocquevilleThe culture war rages on. Recently the New York Post reported that the state of New York has fined a couple for refusing to host a same-sex wedding on their farm. This provides some context for, in Ezra Klein’s words, “the politicization of absolutely everything.” The complaint has its ironic dimensions, and leads us to ponder what caused that politicization—and what can we do about it.

Klein points to surveys showing that Americans are growing increasingly partisan. In one study he cites, participants were given resumes to review. The results showed that, as Klein writes, “race mattered. But political orientation mattered even more. Democrats and Republicans chose the resumes that shared their politics roughly 80 percent of the time.” Perhaps it was ever thus, but I suspect partisanship is more pronounced these days than ever before. (Incidentally, that data might suggest why Republicans, even in South Carolina, are happy to vote for a conservative—white or black, male or female—and it might be why, at the same time, Democrats regard Republicans as racist.)

The problem has many causes. Two key ones, though, are likely to be the growth of government and the rise of identity politics. For much of our history, Americans had a robust understanding of property rights, and of the non-governmental sphere, which was not subject to regulation. That has been changing for quite some time. Alexis de Tocqueville argued that it was part of the essence of America that Americans do on their own, collectively, and freely in civil society, what was done in aristocratic countries by elites. “Civil Society” used to be the proper term for the things we did together. Tocqueville wrote:

The first time I heard in the United States that a hundred thousand men had bound themselves publicly to abstain from spirituous liquors, it appeared to me more like a joke than a serious engagement, and I did not at once perceive why these temperate citizens could not content themselves with drinking water by their own firesides. I at last understood that these hundred thousand Americans, alarmed by the progress of drunkenness around them, had made up their minds to patronize temperance. They acted in just the same way as a man of high rank who should dress very plainly in order to inspire the humbler orders with a contempt of luxury. It is probable that if these hundred thousand men had lived in France, each of them would singly have memorialized the government to watch the public houses all over the kingdom.

In America, civil associations are completely voluntary, and yet they have, or had, a very important civic role. Civil society was a space of liberty, with very few regulations. No one was required to cease drinking, and no one was required to monetarily support a temperance group, or a charity hospital, church, reading club, or fraternal or other charitable organization.

Moreover, the energy inspiring those clubs, associations, corporations, and movements was generated in what we today would call the “private sector”—outside of government. (If we followed Walter Williams’ suggested and used the term “government schools,” for what we call “public schools,” we could rethink the whole concept.) What a robust civil society entailed was the existence of a great deal of free space in which people, alone or in groups, were free to act, or not to act. In the New York state of the mid-19th century, the “perfectionist” community in Oneida was tolerated for quite some time, despite its embrace of free love or “complex marriage,” as the group’s members called it, which most New Yorkers frowned upon. (By the time the larger populace found a way to shut down the experiment, it was beginning to fail on its own.)

Contrast the openness of the America of Tocqueville’s day with the story above. A couple has religious scruples about gay marriage. They cannot in good conscience allow their property to be used to label “marriage” something they view as nothing of the sort. Why is that the government’s business? Moreover, once it becomes the government’s business, it politicizes what used to be the free sphere of private action and choice.

Perhaps some will claim that the couple are free to believe whatever they want, free to say whatever they want, but are not free to discriminate among customers. If they allow their farm to be used for any marriages, they must allow it to be used for anything that the government calls a marriage, whether they like it or not.

That makes it hard for people to live their faith.

Tocqueville recognized that all organizations in civil society, for-profit and not-for-profit alike, were what we would today call Non-Governmental Organizations:

They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive.

(As an aside, it is interesting that the non-profit Left has lately taken to using the term “public charities” to describe the $3 trillion in assets held by large, private, charitable groups—from the Red Cross and Salvation Army, to universities, hospitals, churches, and other such organizations. That sounds like the private sector, as we today usually use the term.)

The Left assumes that this controversy about marriage will blow over because it assumes that religion is on its way out. It assumes that gay marriage is the way of the future, not an experiment that might fail. The new definition of marriage is allegedly completely reasonable, whereas the old one is allegedly an irrational vestige of the past.

But what if that’s not the case, and old time religion is here to stay? If religion persists it means that, by constricting the sphere of civil society, we are throwing gasoline on the cultural fire. As Tocqueville put it:

A government can no more be competent to keep alive and to renew the circulation of opinions and feelings among a great people than to manage all the speculations of productive industry. No sooner does a government attempt to go beyond its political sphere and to enter upon this new track than it exercises, even unintentionally, an insupportable tyranny; for a government can only dictate strict rules, the opinions which it favors are rigidly enforced, and it is never easy to discriminate between its advice and its commands.

The culture war rages partly because identity politics has merged with big government. Government is extending beyond its proper sphere and the result is that it is often arbitrary. Moreover, it is making civil society less and less free. In the name of regulating businesses, it is, in fact, demanding a form of forced confession. As a practical matter, it is just about impossible to separate the regulation of for-profit entities from the regulation of not-for-profit entities.

Where did this case—and those in which government has been asked to force bakers, photographers, and others with religious scruples against gay marriage to give sanction to something they view as a sin—come from? The best guess is that many gay couples seek more than a legal sanction for their marriage. They seek public approval, and want the government to prosecute anyone who stands in the way. In other words, government is enforcing a religious point of view. In that contradiction, we have the seeds of the uber-politicization of American society.

Reader Discussion

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on November 19, 2014 at 11:54:57 am

Interesting, but as the maw of politics extends its grasp concomitant with that is the attack or degradation of individuality, morals, and freedom. More so then ever moral questions are centered in government, government as arbiter, regulator, and referee, government as the locus of virtue, mind boggling! Absurdities such as the border immigration situation, the health care take over, increased regulation of what is taught in schools, discrimination suits, etc. You might call it soft totalitarianism, how soft for how long is the question.
This is what is to be expected sadly in a nation cut lose from its historic moorings, where the only time is the Now and states are the servants of Washington rather than entities managing their own policies and freedoms.
This is what the righteous among us have wrought, and we're not done yet. What is seen as a panacea is a dangerous mirage.

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john trainor
on November 20, 2014 at 00:30:10 am

[…] What Tocqueville Can Teach Us About the Culture War Richard Samuelson, Library of Law and Liberty […]

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PowerLinks 11.20.14 | Acton PowerBlog
on November 20, 2014 at 01:07:12 am

The growth of government is what feeds the increase in race/ethnicity and class "consciousness". As the size and scope of government increase, so can the areas of conflict.

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Orin Ryssman
on November 20, 2014 at 01:48:12 am

John Derbyshire writes in some detail about the same-sex "wedding" that didn't happen at the New York farm. (Or, who knows, maybe it did happen by now.) See http://www.johnderbyshire.com/Opinions/RadioDerb/2014-11-15.html#06

Derb's closing thought is worth quoting: "Freedom of association went out the window with the 1964 Civil Rights Act. We can only dream of it ever being restored to us by the courts. But hey, let's at least dream."

The sensible goal is that restoration, for we know where its increasingly totalitarian alternative leads -- we're living it. In a sensible society, one would be able to decline doing business (taken broadly) with others for good reasons, bad reasons, or no reason at all.

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Paul Nachman
on November 20, 2014 at 06:59:44 am

"What a robust civil society entailed was the existence of a great deal of free space in which people, alone or in groups, were free to act, or not to act."

For totalitarianism to arise and prosper all sources of authority other than the state must be destroyed. Anne Applebaum describes how this was accomplished by the Soviets in Eastern Europe, but it is going on here today in the US (and the rest of the west). Civic groups are an obvious target of the left along with religion, family, ethnic societies, etc.

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on November 20, 2014 at 09:08:03 am

I'm just wondering if the shoe was on the other foot, and it was, perhaps, someone of a different faith who had strong beliefs and who owned the wedding reception site that a fundamentalist Christian wanted to use for their wedding and the owner said "no dice, your lifestyle offends me". Would the fundamentalist Christian accept that without a fight? Or would they immediately scream "discrimination!" Because that scenario is approaching and those with strong anti-gay feelings and/or beliefs should be ready for it.

Laws work both ways, you know.

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on November 20, 2014 at 11:01:06 am

Let's hope so, since they are more likely to see government interference in such a situation as a problem when they are the one's forced to do such things as in the farm example. They have had a great deal of practice in being pushed out public areas of life as well, which is why they often home school or attend private Christian schools, seeing public schools as forcing unwanted ideas and ideologies upon them. It would appear that they might at least be open to the possibility. One must, however, allow for those who feel the need to defend against every slight. The question will, however, remain open.

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on November 20, 2014 at 12:18:05 pm

Yes, "the fundamentalist Christian [would] accept that without a fight."

And I'm an atheist. And it's obvious to me. So is your question anything besides rhetorical?

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Paul Nachman
on November 20, 2014 at 13:14:20 pm

"When I stepped ashore in the United States, I discovered with amazement to what extent merit was common among the government but rare among the rulers. Men of moderate desire commit themselves to the twists and turns of politics...it often comes about that only those who feel inadequate in the conduct of their own business undertake to direct the fortunes of the state. It is not always the ability to choose men of merit which democracy lacks but the desire and inclination to do so.

What strikes the European traveler in the United States is the absence of what we call government or administration. In America, written laws exist, and one sees that they are executed daily; although everything is in motion the engine behind it is not visible. The hand which controls the social machine is nowhere on view. For Americans, the force behind the state is much less regulated, enlightened, or prudent but a hundred times greater than in Europe. It is no good looking at the United States for uniformity and permanence of attitude, minute attention to detail, or perfection of administrative procedures. What one does find is the picture of power, somewhat wild perhaps, but full of strength; life liable to accidents but also full of striving and activity. What is meant by a republic in the United States is the slow and quiet action of a society upon itself.

The overwhelming characteristic of public administration in the United States is its extraordinary decentralization. I have made the distinction between two types of centralization; the one called governmental, the other administrative. The first exists solely in America; the second is almost unknown there. There is a high level of government centralization in the United states, but we have seen that no administrative centralization existed in the United States. Administrative centralization only serves to weaken those nations who submit to it, because it has the constant effect of diminishing their sense of civic pride. In the United States, the majority, which often has despotic tastes and instincts, still lacks the most developed tools of tyranny. If the direction American societies (took)...combined the right of total command with the capacity of total execution...freedom would soon be obliterated in the New World.

It must not be forgotten that is especially dangerous to enslave men in the minor details of life. Subjection in minor affairs...does not drive men to resistance, but it crossed them at every turn, till they are led to surrender the exercise of their own free will. In the United States it was never intended for a man in a free country to have the right to do anything he liked; rather, social duties were imposed upon him more numerous than anywhere else. How can liberty be upheld in great matters amongst a multitude which has not learned to make use of it in small ones? Where you see in France the government and in England a noble lord at the head of a great new initiative, in the United States you can count on finding an association. The only way opinions and ideas can be renewed, hearts enlarged, and human minds developed is through the reciprocal influence of men upon each other.

The principle objective of good government is to ensure the welfare of the people and not to establish a certain order at the heart of their misery. Centralization easily succeeds in imposing upon the external behavior of a man a certain uniformity which comes to be loved for itself without reference to its objectives. Centralization has no difficulty in...maintaining in society a sort of administrative lethargy which administrators usually call good order and public tranquility. The man who asks anything of freedom other than itself is born to be a slave."

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james wilson
on November 20, 2014 at 15:41:11 pm

Is this quote from De Tocqueville as well?

Men of moderate desire commit themselves to the twists and turns of politics…it often comes about that only those who feel inadequate in the conduct of their own business undertake to direct the fortunes of the state.

“Men enter local politics solely as a result of being unhappily married.” Cyril Northcote Parkinson, as published in The Economist (1955) and later in Parkinson’s Law: The Pursuit of Progress (1958).

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on November 20, 2014 at 15:52:08 pm

“Freedom of association went out the window with the 1964 Civil Rights Act. We can only dream of it ever being restored to us by the courts. But hey, let’s at least dream.”

Uh ... in the sense of the right for people in business to discriminate in the manner in which they serve customers? Yeah. When will people get over this? It's been the law of the land for the past 50 years.

Did I say 50 years? Maybe I should say 250 years:

[I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.

Sir William Blackstone, Commentaries on the Laws of England (1765–1769). See also writings of Prof. Charles Burdick (1911) (describing the duty of the “inn-keeper, or other victualler” of which Blackstone spoke as merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply.”)

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on November 20, 2014 at 16:38:39 pm

No, in the sense of the right to decline to serve some customers, as the proprietor chooses.

If you're impressed by Blackstone, here's an example of a case wherein you might not be, by Steven E. Landsburg in Slate, sometime in 1999:

"Two hundred years ago, a lawyer named William Blackstone said it’s better for 10 guilty people to go free than for one innocent person to suffer. And for two centuries, legal scholars have considered Blackstone’s pronouncement a profound statement of principle. Apparently, none of these scholars has thought to ask the obvious follow-up question, namely, why 10? Why wasn’t it 12 or eight? The answer, of course, is that Blackstone invented a number out of thin air. That kind of flippancy amounts to a defiant refusal to think seriously about the trade-offs involved in designing a criminal justice system. But for 200 years, legal scholars have cited Blackstone’s refusal to think and mistaken it for an example of a thought.

"There’s nothing profound about recognizing a trade-off between convicting the innocent and acquitting the guilty. The hard part is deciding how many false acquittals you’re willing to accept to avoid a false conviction. That number matters. It matters whether it is 10 or 12 or eight, because every time we rewrite a criminal statute or modify the rules of evidence, we are adjusting the terms of the trade-off. So it’s got to be worth it to think about what terms we want to aim for."

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Paul Nachman
on November 20, 2014 at 22:30:11 pm

Alex from Tocqueville.

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james wilson

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.