CIVILITY WARS

The essence of civility, Carter argues, is not the outward forms of conduct we call manners, but the ability to sacrifice our own interests for others’. Civility is the virtue that allows man to be, in Aristotle’s phrase, a ” political animal,” a creature whose habitat is civilized society. At its most basic, civility includes the qualities we need in order to live shoulder-to- shoulder with fellow citizens whom we care neither to befriend nor to insult: deference without feigned chumminess, patience for the weaknesses of others, and constant attention to the fact that those around us are humans, too.

These virtues are in decline, Carter believes, with neither Right nor Left willing to teach them. Carter argues that both liberals and conservatives are self-seeking — liberals pursuing self-interest by demanding ever-greater individual rights, conservatives pursuing self-interest by advocating the free market. For Carter, neither side answers the critical question of how we are to treat one another as collaborators in the democratic experiment. His answer is a revival of religious values, which he sees as the only way to transmit the virtue of self-sacrifice that is a condition for civility.

Hence, Carter is preaching a peculiarly American form of civil religion — a cross between William Bennett and Robert Fulghum, with a dose of sincere Christian belief thrown in. His message of self-sacrifice is so earnest as to render the book, in a sense, unreviewable — for who would be so churlish as to take serious issue with a man crying out for civility?

Carter’s problem, though, is that he tries to cram too many of America’s cultural disorders into his favored concept. For instance, what relationship could there possibly be between civility and grade inflation? Carter thinks he knows: Professors lack civility when they give inflated grades, unwilling to sacrifice their own short-term emotional comfort for telling students the truth. And church attendance? Churches lack civility, Carter asserts, when they try to make their congregants comfortable rather than challenge them with discomfiting truths — and the result is a loss of membership. These are attenuated arguments, and they illustrate a fundamental flaw in Carter’s book. In seeking to explain so much of contemporary life by civility, Carter is compelled to manipulate and often distort the concept until it ceases to have any familiar meaning.

Or, more accurately, Carter has mistaken a symptom for a cause. A decline of civility may best be explained as a consequence of many forces at play in American culture. Carter’s thesis has less diagnostic power than he supposes – – although its moral power is undeniable.

Carter has another volume just published — a small collection of essays titled The Dissent of the Governed — in which he contends that dissent, rather than consent, lies at the heart of the American experiment. He begins his essays, first delivered as the Massey Lectures at Harvard, by revisiting the Declaration of Independence, noting that it was George III’s treatment of the colonists that drove them from mere dissent into open disallegiance and revolution:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

In other words, the legitimacy of the state dissolves when the sovereign answers “repeated petitions” with “repeated injury” — which Carter sees as happening in America today. “Large numbers of citizens do indeed feel that their petitions to their government go unanswered,” he writes, “and, as a result, [they] have lost a degree of faith in that government.” Carter argues that this feeling is particularly common among socially conservative religious communities, whose dissent is directed against the norms of modern society. Sympathic to these communities, Carter worries that the government’s denial of their repeated petitions could impel them from loyal dissent into open disallegiance. He goes on to describe a vision of an American government that would be sensitive to those petitions, thus arresting a downward spiral.

Along the way, Carter offers sound insights into the nature of governmental power. For example, he delivers a masterly attack on what he calls “liberal constitutionalism,” that is, the use of law to increase the power of the federal government for the purpose of enforcing secular values. Liberal constitutionalism, Carter asserts, has failed to understand that all government authority poses a danger to individual freedom. From the standpoint of religious communities, liberal constitutionalism is antagonistic because it creates and enforces national standards concerning school prayer, public aid to religious schools, and so on. The states, Carter says, should be left free to treat such matters as they see fit, without any interference from Washington.

Many conservatives will agree enthusiastically with this, but some of Carter’s other ideas are more troubling. Indeed, his Declaration-based theory of dissent breaks down when he turns his attention to the federal courts. Carter writes that courts are part of the sovereign, too, and so share responsibility with the other branches of government not to allow dissent to spiral into disallegiance. The courts “should be sensitive to the possibility that [they] might learn from the possibly quite distinct interpretive instincts of the public” — which is to say, the courts should listen more to what the citizens are saying and not be so quick to contradict them.

It is true that, in a technical sense, the courts are part of the sovereign. But in a structural sense, they are not. Article III of the Constitution grants life tenure and salary protection to federal judges, which provides them the independence they need to stand apart from the rest of the government and act as a check on its power. Granted, George III enjoyed tenure and salary protection as well, but his power, unlike that of the federal courts, was unchecked by other branches of government and by the popular will. Contrary to Carter’s thesis, the federal courts have been tremendously successful at using their independence to check the power of the sovereign, if we understand “sovereign” in this context to mean “political majority.”

Moreover, Carter’s vision of the courts blurs the fundamental principle of separation of powers and leads to ill-considered nations about the role of judicial review. In what way should courts be responsive to “repeated petitions”? Should justice depend on the number of times a petition is made? On the number of people making it?

This sensitivity to popular will is characteristic of legislative rather than judicial power. There already exists the means by which the courts may be more sympathetic to “repeated petitions” — judicial restraint. But Carter’s vision would produce its opposite: an unaccountable counter- majoritarian body trying to discern and enforce the will of politically insistent groups as expressed in their “repeated petitions.” This would not be judicial review but judicial lawmaking.

The Dissent of the Governed is at once a compelling and a mystifying collection. Carter calls it a “meditation,” which is particularly apt, as the book reimagines the structure of American government free of artificial and outmoded constitutional doctrines. It is perhaps a worthwhile exercise to undertake such a reimagining, if only to come away convinced that much of what we do is, indeed, the best we can do.

But Carter’s effort is ultimately unconvincing. Although it has the laudable goal of promoting a larger role for religion in American life, it attempts to achieve this goal in a baldly activist way — by changing the role of the courts. In this respect, it fails to internalize that one quality necessary for a successful democracy: restraint on the part of its government.

Mark Miller is a writer in Washington, D.C.