The Impact of Transformations in National CulturalIdentity upon Competing Constitutional Narrativesin the United States of America

Frederick Lewis

Published online: 2 March 2011

� Springer Science+Business Media B.V. 2011

Abstract Shifts in the national cultural identity of the US have been reflected in

shifts in the US’ dominant constitutional narratives. For the United States, ‘‘inter-

legality’’ has been less a matter of dealing with alternative non-state legal narratives

than of contending with constantly arising and competing narratives about the

‘‘correct’’ nature of the ‘‘official’’ legal order of the state. The US Supreme Court

has claimed to have the ‘‘last word’’ in resolving these arguments but because that

Court is so often sharply divided and because the Court membership and the nature

of its ‘‘last words’’ changes so often, where a significant element of the society seeks

to advance its ideas and interests, it will often do so in legal and constitutional

terms. As the national culture undergoes changes, a competing constitutional nar-

rative may gain ground and even ultimately prevail, at least for a time, and achieve

Supreme Court ‘‘endorsement’’ for its claims.

Keywords Cultural identity � Constitutional narratives � Nation

1 Introduction

According to Ilze Bezuidenhout

[t]he cultural identity of a specific group or society is an image referring to

external as well as internal characteristics of that group. However, a culture

must be located in time and space to ‘‘anchor’’ it in terms of its past, future and

place and to indicate or compare changes that took place within that culture.

[3, p. 011]

And Carolyn Evans argues that

F. Lewis (&)

Political Science Department, University of Massachusetts Lowell, Lowell, MA, USA

e-mail: frederick_lewis@uml.edu

123

Int J Semiot Law (2012) 25:177–195

DOI 10.1007/s11196-011-9220-2

Constitutions are, in part, a story that a country tells about itself. … Yet the

story is not static and, in most cases, there is not a single story about the

broader place and purpose of the constitution. There may be a dominant story

at a particular point in time, but there are usually other stories that contest that

dominance and, particularly at times of constitutional controversy, may lead to

the rise of a new dominant narrative. … Constitutional narrative in this context

is a culturally and legally created story about the role, purpose, history, and

relevance of the constitution in a particular society. [8, p. 437]

Accepting these definitions serves as necessary predicate for an examination of

changing conceptions of national cultural identify in the US and their impact upon

and relationship to the dominant constitutional narrative that has prevailed there at

different times.

2 Cultural Self-Description in the US

Throughout most of the early decades of the twentieth century, the United States’

principal narrative of self-description utilized the term ‘‘melting pot.’’ It presented

itself as a place to which people came from everywhere else, gave up their ‘‘old

world’’ ways with the passage of time, and became ‘‘Americanized’’—assimilated

into the broader US culture and society. Although in recent decades, the word

‘‘multicultural’’ has frequently been used to describe the society and culture of the

contemporary United States, its applicability to the US depends heavily on the

definition of the term. It is also tightly linked to issues of identity and to the nature

of the nation that constitutes, and has in turn been constituted by, the United States

of America.

National cultural identity in the US has been examined at least since the famous

work of Alexis De Tocqueville [6]. Some have stressed the changes that have

occurred in critical defining characteristics in during different time periods. Others

have stressed the continuity of other aspects of the national identity even through

these changes and shifts.

Shifts in the national culture have been reflected in shifts in the US’ dominant

constitutional narratives. For the United States, ‘‘inter-legality’’ has been less a

matter of dealing with alternative non-state legal narratives than of contending with

constantly arising and competing narratives about the ‘‘correct’’ nature of the

‘‘official’’ legal order of the state. In the US, different legal/constitutional

perspectives coexist and compete within one system of legal order.

The diffuse and highly political nature of the federal US legal system and

constitutional culture means that new constitutional argument and narratives are

constantly being advanced or revived throughout all levels of the society and by

political actors at all levels of government. The US Supreme Court has claimed to

have the ‘‘last word’’ in resolving these arguments but because that Court is so often

sharply divided and because the Court membership and the nature of its ‘‘last

words’’ changes so often, where a significant element of the society seeks to

advance its ideas and interests, it will often do so in legal and constitutional terms.

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As the national culture undergoes changes, a competing constitutional narrative

may gain ground and even ultimately prevail, at least for a time, and achieve

Supreme Court ‘‘endorsement’’ for its claims. This paper will examine some of the

key questions surrounding the nature of national cultural identity in the USA and

some of the significant competing constitutional narratives that have gained and lost

ground as shifts in the culture have occurred over time.

3 What is a Nation and in What Sense is the USA a Nation?

Just what does the term ‘‘nation’’ mean and in what sense is the USA a nation? What

does it mean to be an ‘‘American?’’ To US citizens, most European countries are

territories that preponderantly encompass a people defined as a nation by their

residing in a particular place, by speaking a common language, by a lengthy shared

history, by family ties that reach over centuries of generations, and by numerous

unique shared cultural characteristics.

Of course, a closer look again reveals that these generalities are marked by

numerous exceptions. European wars have been fought over whether portions of a

people living within one country’s territory ‘‘belong’’ to another country. Belgium

contains two groups speaking different languages, and in Spain, the Basque minority

does not accept the legitimacy of the dominant Spanish language and culture.

Still, the USA has only existed for about 235 years and the iconic events in much

of its history, from wars to major social movements, were not participated in by the

ancestors of most present day US citizens, nor did even the relatively recent ancestors

of many of today’s US citizens speak the dominant ‘‘American English’’ language.

Nevertheless, the US is a nation with a still clearly dominant common language

and a dominant, widely shared culture of beliefs, ideas, values, practices and attitudes

that its people are committed to, or at very least, believe they are committed to. And

although the historical reality is that particular cultural groups have claimed and

achieved ascendancy during particular time periods, the underlying national culture,

individualist and universalistic, serves to continuously undermine the efforts to

permanently define ascendancy in racial, religious, ethnic or gender terms.

4 The US National Cultural Identity

Over many decades, the US national culture has demonstrated its ability to co-opt

and integrate component sub-cultures with remarkable effectiveness. As Alan Wolfe

puts it [28, p. 30], citizens of the USA have chosen to be modern, not ethnic. He

says the USA has solved the problem of ethnicity that plagues other nations by

transcending it—that groups do not live in peace with each other in the United

States, individuals do.1

In his new book, Made in American: A Social History of American Culture andCharacter [4], Claude S. Fischer claims that the key unique element in the US

1 And he describes its modern cultural arrangements as ‘‘low cost’’ [28, p. 30].

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national culture over time has been its emphasis on volunteerism. He sees it as the

unique way the US national culture blends individualism with group involvement.

He concedes that there are other elements to the dominant cultural identity including

‘‘intense faith, moralism, violence and cheeriness’’ [10, p. 11] that may not derive

from volunteerism but he believes that volunteerism is the ‘‘core distinction’’ [10,

p. 11] of that identity, one that was emphasized even by De Tocqueville [6] in his

classic early nineteenth century study. Volunteerism is individualism combined with

a belief that individuals succeed through ‘‘fellowship—not in egoistic isolation but

in sustaining, voluntary communities.’’ This means that while individuals may seek

to develop their potential and achieve status with a group—and while a member

they are expected to adhere to its norms—joining and leaving are voluntary.

Fischer sees volunteerism, as originating in the Northeast US and acknowledges

that while he sees this core culture as dominant there are contradictions and

complexities to the matter: class, regional, religious, racial and ethic variations. The

dominant national culture is primarily a middle class ‘‘mainstream’’ culture, one that

over time has admitted more and more people to it. It is a ‘‘collection of shared,

loosely-connected, taken-for-granted rules, symbols and beliefs that characterize a

people’’ [10, p. 10].

5 The US’s Historical Process of National Cultural Identity Transformation

Recent decades have seen a great emphasis on what many term ‘‘identity politics’’

in the USA. Conflicts over ‘‘multiculturalism,’’ ‘‘diversity,’’ affirmative action and

immigration have preoccupied the media, corporate employment, and university

admissions and hiring, as well as ongoing national political debate and constitu-

tional struggle.

For some, the word ‘‘multiculturalism’’ simply means that cultural differences

among people should be valued and appreciated for enriching the larger society. For

others who use the term, ‘‘multiculturalism’’ involves cultural enclaves, the

valorization or reification of cultural differences and in some cases, almost an

insistence that people be defined, and define themselves, by their racial, religious,

ethnic, or gender identities—particularly by those aspects of identity that have been

the object of historical disadvantage or persecution.2

Discussion of this subject is made more difficult by the fact that the words that

feature most prominently in this controversy are often used in ways that

oversimplify a complex reality. For example, many people in the US who seem

to be highly assimilated may still, upon close examination, maintain some behaviors

that are rooted in their original ethnicity or religious practice.3 People who vocally

2 ‘The politics of the ‘60s thus devolved into an aggregation of individual claims upon society and the

state. ‘’Identity’’ began to colonize public discourse: private identity, sexual identity, cultural identity.

From here it was but short step to the fragmentation of radical politics, its metamorphosis into

multiculturalism.’ (Judt [14, p. 88]).3 Indeed, Kevin Phillips’ close examination of local voting patterns showed that statistically significant

effects of original ethnic settlement can still be detected several generations later. See among other

works: Phillips [24].

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and overtly stress the practices and culture of their place of origin as the major

characteristic of their life in the USA, may in fact also, upon close examination,

display ‘‘American’’ attitudes and behaviors very different from those of the ‘‘old

country’’—and their children even more so. The USA is a large, complex and

dynamic culture and society, with many cross-cutting trends.

The devices through which the US national culture asserts itself are varied. The

public schools have traditionally been seen as playing a principal role in the process

of ‘‘acculturation,’’ and the US’s adaptable and inclusive popular culture is also

highly influential. The notion of freedom that attracts immigrants to the USA has

traditionally included a promise of material prosperity often captured in the phrase

‘‘the American dream.’’ And indeed, the powerful and dynamic culture of business

and the workplace integrates around skills and talents to which religion and

ethnicity are often largely irrelevant.

In the USA, when sub-cultural groups begin to rise socio-economically and

obtain political, social and economic power, they make demands upon the dominant

culture—sometimes directly, sometimes indirectly; there is a continuous back and

forth struggle, a process of give and take, in which the rising group is gradually

incorporated into the dominant culture by, in part, changing some aspects of its

culture and characteristics while at the same time, causing some alterations in the

nature and characteristics of the dominant culture.

An unusually dramatic example of a change in a group culture was the late

nineteenth century final acceptance of the Mormon settlement in Utah as a state

within the federal union only after the leader of the Church of Latter Day Saints

had a revelation that polygamy was no longer religiously required. An equally

dramatic example of a group’s incorporation impacting the nation is happening

currently as the movement for equality for gay people is gradually, and

sometimes very painfully, producing a change in the national culture’s definition

of marriage.

These kinds of changes are sometimes obvious, but often hidden; sometimes

trivial and at other times very consequential. The pace at which they occur varies

greatly. And as is so often the case, many conflicting trends may occur at once and

the process may occur unevenly throughout the country.

New immigration may increase national diversity and seem to threaten national

unity. Rising groups may make demands that seem to reinforce difference. Yet

simultaneously, people from very different backgrounds may be pursing common

experiences that cause them to diminish the importance of these backgrounds in

their lives, or to gradually transform them from matters of crucial self-identity to

matters that could almost be justifiably characterized as aesthetic. Or in Fischer’s

words, ‘‘While many scholars emphasize the survival of ethnic diversity into the

twenty-first century, what is sociologically striking is the extent to which the

American mainstream has overflowed and washed away that diversity, leaving

behind little but food variety and self-conscious celebrations of multiculturalism’’

[10, p. 12]. Needless to say, as a result, people from very different backgrounds may

also be dating and intermarrying with little regard to the race, religion or ethnicity of

their ‘‘significant other.’’

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6 Broadening the National Mainstream

The middle decades of the twentieth century saw the incorporation of non-protestant

European ethnic groups into fuller membership in what is conventionally called

‘‘the mainstream’’ of US society.4 President Franklin Roosevelt’s New Deal did

many things but it certainly helped incorporate the USA’s Catholics and Jews into

full membership in the national culture. Indeed, Michael Lind has argued that the

equality movement he sees as dominating from the Civil War period until the 1960s

was actually built upon a unity of citizens of white European descent that excluded

non-white racial groups [18]. Ira Katznelson makes a similar argument [15].

According to Lind, there have been three American ‘‘nations’’ from an ethno-

cultural identity perspective. The first, what he terms Anglo-America, involved

three elements: ‘‘defining the national community as the Anglo-Saxon race, the

common ethic as protestant Christianity, and the political creed as federal

republicanism’’ [18, p. 27]. The second, which he calls Euro-America, arose after

the Civil War and was more broadly defined as a white Christian [later Judeo-

Christian] federal democracy. This ‘‘nation’’ was developed after waves of

immigration from southern and eastern Europe. The Civil Rights movement

changed this, of course. And together with the women’s movement and significant

immigration from non-European countries in recent decades, a third new and even

more diverse ‘‘nation’’ has emerged that Lind5 and others have often described as

Multi-cultural America.

But sub-cultural differentiation is not a recent phenomenon. It even was a

characteristic of early pre-Civil War Anglo-America. Variations of ‘‘white race’’

theory were prominent and even ‘‘founding fathers’’ like Thomas Jefferson were in

thrall to notions of Saxon superiority [21, p. 211]. And while the dominant culture in

the early US may have seen itself as ‘‘racially’’ and religiously Anglo-Protestant, it was

not monolithic. Indeed, even putting aside the significant black population brought by

force from Africa, the Native American population, and the pockets of immigration

from Germany, Holland and other European nations, the diversity that existed among

the Anglo-Protestants was not inconsequential. As David Hackett Fisher traces in

Albion’s Seed [11], while the patterns of settlement in the US may have been primarily

derived from Great Britain, different parts of the early US were settled by people from

particular parts of Britain with markedly different cultural characteristics and attitudes

4 In what is still a primarily Protestant nation, there are now no Protestants among the nine Justices of the

US Supreme Court although for most of its history, it was composed overwhelmingly of white, Protestant,

male Justices. See: Feldman [9].5 Lind does not like multiculturalism because he believes that the divisions it accentuates interfere with

the establishment of progressive coalition politics. And it has been argued elsewhere that culturally

homogenous polities are more willing to support social welfare policies. For example, Jason DeParle [5]

cited the research of Dowell Myers, a demographer at the University of Southern California: ‘When you

get increased diversity, you weaken support for the common good.’ Professor Myers studied Proposition

55, a 2004 ballot initiative in California that sought $12.3 billion in bond sales to relieve overcrowding

and upgrade older schools. Publicly, most opponents framed their concerns in economic terms, saying the

government wasted money and ran unsustainable debts. Still, anger about illegal immigration was, as one

opponent put it, the ‘elephant in the living room.’ School crowding, he wrote … was ‘solely caused by

America’s foolish open-borders policy.’

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that often clashed severely. Even in its earliest days, the USA was characterized by a

diversity of subcultures [27]. While this early diversity may seem culturally uniform

from the perspective of today’s diversity, from the standpoint of those then involved,

the differences and the antagonisms they produced could be as acute as any that now

prevail. Indeed, while the extremely bloody American Civil War had many causes, and

their relative importance is still debated, one important aspect was cultural. It was in

some sense a fratricidal family disagreement among Anglo Saxons—a ‘‘Cousins War’’

to use Kevin Phillips’ term [23].

Euro-America involved enclaves of subcultures too and some significant barriers

persisted into the mid twentieth century. In the middle of the twentieth century, what

prevailed in the US was sometimes described as ‘‘cultural pluralism.’’ Will Herberg

[13] was widely cited in this period for his description of the then contemporary

national culture with three broad religiously based subcategories. But the period of

the 1960s and 1970s led to extensive intermarriage and other changes that

dramatically softened the barriers around the subcultures he described effectively

reviving the ‘‘melting pot’’ even if that metaphor was no longer much used. Recent

immigration has added dramatically to the diversity of the US when compared to

prior immigration waves and in the contemporary US, intermarriage is continuing to

‘‘melt’’ not only the barriers between European ethnic and religious groups but also

between these groups and people with Asian, Hispanic and African ancestry.

7 The Recent Large Hispanic Immigration from Nearbyand Adjacent Lands

The current controversy in the US over immigration from nearby Latin American

countries, particularly Mexico, much of it without legal sanction by the US

government, has many sources. But part of it stems from the concern that large

numbers of people from nearby home countries (and in Mexico’s case, a country

that directly borders the US) may not fully participate in these established historical

processes of social integration and adhere instead to their traditional language and

culture with greater tenacity than other groups of people who have come to the US.

Yet preliminary studies seem to show that these fears are much exaggerated; fluency

in English among the next generation of Hispanic immigrants [26], and other

markers of ‘‘Americanization’’ seem to be occurring at conventional rates.6

Still, the political controversy over immigration from Mexico has recently

prompted a constitutional controversy. The State of Arizona, which borders on

Mexico, has passed a law that empowers its police to stop anyone who looks like

they might be present in the state illegally. Arguing that immigration enforcement is

a federal function that the states are preempted from entering, the federal

government has brought suit arguing that the Arizona statute is unconstitutional.

6 Louis Menand [20] cites Michael Elliott who, in his column in Time magazine, pointed out that in the

Latino National Political Survey, conducted from 1989 to 1990, eighty-four per cent of Mexican-

Americans expressed ‘‘extremely’’ or ‘‘very’’ strong love for the United States (against ninety-two per

cent of Anglos). Ninety-one per cent said that they were ‘‘extremely proud’’ or ‘‘very proud’’ of the

United States.

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8 Constitutional Narratives and Patterns of Sub-Cultural Differentiation

For the United States, ‘‘inter-legality’’ has been less a matter of dealing with

alternative non-state legal narratives than of contending with constantly arising and

competing narratives about the ‘‘correct’’ nature of the ‘‘official’’ legal order of the

state. The process of national cultural identity transformation is typically

accompanied by struggles over the dominant constitutional narrative: changes in

the patterns of sub-cultural differentiation impact the dominant narrative, are

impacted by that narrative, and frequently produce competing narratives.

Perhaps the most dramatic long-term example involves the attitude of the

national culture toward African-Americans. The historically incendiary issue of race

in the US has produced shifting constitutional narratives as the culture itself has

undergone multiple shifts.

9 Race and Shifting Constitutional Narratives

In the years before the Civil War, the Supreme Court’s constitutional jurisprudence

reflected the cultural narrative that supported, or at least tolerated, Negro slavery as

a necessary condition to the formation and preservation of the federal union.7 This

culminated in the Dred Scott case,8 which held that African-Americans could never

be American citizens and which did great damage to the Court’s reputation outside

the South.

Fear of the expansion of southern political power [12] led to the formation of the

Republican Party and at this point, despite the presumed objectives of those on the

Court who promulgated it, the decision did little to reduce sectional tension, make

the institution of slavery more secure, or change the minds of those hostile to the

‘‘peculiar institution.’’

10 The Reconstruction Narrative

One of the first acts of the post-Civil War Congress was to enact the Thirteenth

Amendment to abolish slavery. Shortly thereafter, Congress passed the Civil Rights

Bill of 1866, designed to confer basic civil rights upon the newly freed slaves and

eliminate remaining badges of slavery. However, doubts about this legislation’s

constitutionality led to the passage of the Fourteenth Amendment. And finally, the

desire to extend the franchise to the ‘‘freedmen’’ produced the Fifteenth Amendment.9

These amendments were followed by a series of legislative enforcement acts.

During this period, the preponderant constitutional narrative was shaped by the

7 Prigg v. Pennsylvania 42 US 539 (1842).8 Dred Scott v. Sandford, 60 US 393 (1857).9 This Amendment seems to have been the product of principle on the part of some in Congress, and

political calculation from others. The votes of the freedmen were seen as essential to maintain national

Republican political dominance in the post Civil War years.

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dominance of the ‘‘Radical Republicans’’ over the Congress, with the South under

federal military occupation.

11 The Post-Reconstruction Narrative

But by the 1870s and 1880s new narratives gained ground. The disputed Presidential

election of 1876 resulted in an end to Reconstruction, the withdrawal of federal

troops from the South, and return of ultimate political control in the South to white

‘‘redeemers’’ who looked the other way in the face of Ku Klux terror, imposed

segregation upon the freedmen, and withdrew their access to the vote.

Northern public opinion, never comfortable with the idea of Negro equality, tired

of Reconstruction and many in the US focused on becoming wealthy during what

came to be known as the Gilded Age. The Supreme Court began to systematically

undermine the accomplishments of the Reconstruction Congresses. In the Slaugh-terhouse Cases,10 the Supreme Court rejected the broad construction of the

Fourteenth Amendment’s privileges and immunities clause that would have made

all the traditional rights of free men incidents of national citizenship and provided

solid constitutional authority for all reconstruction enforcement legislation (though

it rejected it by the narrowest possible margin). In the Civil Rights Cases,11 the

Court held that the Equal Protection Clause reached only state action, not private

action, and that Congress’s enforcement powers could not reach discrimination in

privately owned places of public accommodation. Then in Plessy v. Ferguson,12 the

Court held that state action to provide or require racially segregated facilities did not

violate the constitutional command of equal protection.

By the turn of the twentieth century, doctrines of racial superiority were

dominant in Universities throughout the Western World. European nations initiated

new imperial adventures as the ‘‘white man’s burden’’ and America followed suit in

the Philippines and Caribbean.

12 The Resuscitation of the Civil Rights Narrative

Countervailing cultural trends and constitutional narratives took several decades to

develop. The N.A.A.C.P. was organized early in the twentieth century and

undertook a systematic long-range effort to attack segregation in the Courts. The

coming of the New Deal in the 1930s with a new dominant political coalition and a

Supreme Court doctrinal revolution in the interpretation of national power also had

an impact on civil rights doctrine [19] as a new constitutional narrative gained

traction, or in some sense, underwent resuscitation.

The New Deal also brought the beginnings of a noticeable cultural shift,

accelerated by World War II where the US saw itself as fighting for democracy

10 83 US (16 Wall.) 36 (1873).11 109 US 3 (1883).12 163 US 537 (1896).

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against a racist enemy, with a segregated Army, exposing the contradictions of its

mid-century democracy to millions of its citizens. It also produced mass higher

education for the first time with the enactment of the post-war GI Bill of Rights.

In 1948 the Democratic Party’s National Convention adopted a civil rights plank

prompting a Southern walkout and a third party presidential race by Strom

Thurmond of South Carolina. Civil rights bills began to make their way through

Congress, though not by majorities large enough to overcome Southern filibusters in

the Senate. And the armed forces were desegregated by President Truman’s

executive order.

Many other things contributed to the cultural shift on race and a developing post-

War consensus that the South would have to change. The highly centralized

broadcast and print media were powerful in this period, commanded a broad

audience, and took news seriously; they were virtually all sympathetic to ending Jim

Crow even if sometimes subject to southern pressures. Major American Univer-

sities, which widely supported racist theories at the turn of the century, had turned

against such theories by mid-twentieth century. The foreign policy and defense

establishment was engaged in cold war competition for the allegiance of the non-

white third world13; segregation was an embarrassment for the cause of US

democracy as it presented itself in opposition to Communism [7].

The internal ‘‘Great Migration’’ over several decades brought large numbers of

black people from the rural South to the urban, industrial North where they could

vote. Together with the vote of the primarily Catholic and Jewish ‘‘new-stock

Americans,’’ many of whom had also experienced social and employment

discrimination, there developed over time in northern cities a political constituency

for what might be called the civil rights idea: the concept, and ultimately the cultural

norm, that an individual should have access to rights and opportunities such as non-

discriminatory employment hiring and access to public accommodations ‘without

regard to race, creed, color, or national origin.’ In much of the country it became

possible to win office in state legislatures and Congress running on a pledge to enact

this idea into law.

And although quantitative data might not be available to show the impact of

widely disseminated newsreels and magazine photos of piles of Holocaust bodies

upon the public consciousness, many people report anecdotally that the post-war

years saw a significantly diminution of elite sanctioned expression of open prejudice

and bigotry of all kinds outside the South. The Justices of the Supreme Court, like

all Americans of their time period, had to have seen the shocking newsreel films14

and firsthand reports that accompanied the liberation of Europe just a few short

years before they decided Brown v. Board of Education.

Concomitantly during the 30s, 40s and early 50s, the Supreme Court began to

dramatically tighten its construction of Plessy’s approval of ‘‘separate but equal,’’ a

doctrine whose ‘‘but equal’’ words had been long ignored. In 1938 in Missouri ex

13 In the 1950s Washington, DC was surrounded by states with segregation laws, and incidents where

dark-skinned representatives of ‘‘unaligned’’ nations were subjected to rejection and insult in these state’s

public accommodations were constant embarrassments to the US government.14 During the World War II years, and immediately after, approximately 60% of the US population went

to the movies, on average, weekly. [22, p. 14].

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rel. Gaines v. Canada,15 the Court held that ‘‘separate but equal’’ was not satisfied

by a state’s offer to pay tuition for a qualified black resident to a law school in

another state; it required that equal facilities be provided within the state. In Sweat v.Painter,16 the separate law schools operated by Texas for white and black students

were found to be not equal in light of the inferior educational opportunities and

facilities provided in the black law school. In McLaurin v. Oklahoma,17 admitting

black students but separating them within the school was stuck down. The Court

noted that internal segregation limited student interaction, and the Court’s

recognition that such interaction was an important part of the educational process

seriously undermined what remained of ‘‘separate but equal.’’

The Brown decision then held that ‘‘separate but equal’’ was inherently unequal

and violated the equal protection clause. Brown v. Board of Education launched a

new constitutional narrative that reflected profound cultural change18 regarding race

and racist theories. Outside the South, and to some degree even within it, racial

segregation, and the constitutional narrative that accompanied it, lost mainstream

support in the national culture.

13 Busing and the New Constitutional Counter-Narrative

But in the 1960s and 1970s, the undoing of Plessy through Brown and its progeny

involved the federal courts in what has undoubtedly been their most extensive and

controversial exercise of authority at the expense of local power and sensibility:

‘‘busing’’ remedies to implement school desegregation. After the enactment of

important civil rights legislation in the mid-nineteen sixties, these remedies

occurred on a larger and larger scale, not only in the South and border states, but

throughout much of the North and West as well.

Certainly it was necessary and appropriate to eliminate officially sanctioned dual

school systems and the segregation that was directly and reasonably traceable to it.

It became more problematic for courts to seek to impose a level of racial integration

that likely would not have existed even had there never been officially sanctioned

segregation—and it was something the national culture was not then prepared to

sustain.

President Lyndon Johnson supposedly said that his achievement of securing the

enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 would

cause the Democratic Party to lose the South forever. While ‘forever’ may be an

overstatement, Republicans have largely replaced Democrats there. And widespread

opposition to Busing and Affirmative Action throughout the nation led to the

development of a competing constitutional narrative, one that accepts Brown but

holds that all government action should be strictly race neutral.

15 305 US 337 (1938).16 339 US 629 (1950).17 339 US 637 (1950).18 Klarman [16, p. 209] says that ‘‘Sweatt and McLaurin, inconsistent with legal sources that were

generally considered binding by these justices, are best explained in terms of social and political change.’’

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As the conservative bloc on the Supreme Court has gained in influence, the

success of this counter-narrative has led it to sanction withdrawal of federal court

supervision of local public school districts in formerly legally segregated districts

and to the termination of court required desegregation plans. And while the Court

narrowly reaffirmed limited affirmative action on behalf of diversity in public higher

education in 2003,19 changes in its membership since that time led to the Seattledecision in 200720 which declared unconstitutional a plan adopted voluntarily by a

local school district to assure racial diversity in its schools. Because in some

instances, individual students seeking transfers to particular schools would be

approved or denied because of their race, the narrow Court majority invalidated the

plan.

Still, at this point, most white citizens of the US seem to have had some direct

contact with black citizens in school, college, work or other civic and recreational

activities. And while deep seated racial anxieties seem to still preoccupy a large

segment of the white population, the effect of this contact over time (perhaps along

with constant media reinforcement) has, overall, produced a dramatic improvement

in racial attitudes on virtually every polled subject, ranging from acceptance of the

idea of a black President to tolerance of interracial dating and marriage. Only time

will tell if the increasingly dominant constitutional narrative that limits government

promotion of racial diversity will negatively impact this significant cultural

progress.

The national culture has also shifted in recent decades on matters of religious

freedom and church-state separation though shifts on this subject are not a new

phenomenon. Like race, religion has been a preoccupation of the national culture

since its beginnings, and cultural shifts and conflicts have been reflected in changing

constitutional narratives here as well.

14 Religion and Constitutional Narrative

In 1878, the constitutionality of a federal statute prohibiting polygamy in federal

territories came before the US Supreme Court.21 The claim of the Mormon group,

whose travels had taken them to the Utah territory, that their religion required the

practice of polygamy clashed with the then-prevailing dominant national cultural

view reflected in the Court’s constitutional narrative. The Mormons argued that the

statute abridged their First Amendment right to Free Exercise of Religion. The

Court rejected this claim out-of-hand and Congress effectively made it clear that

statehood for Mormon-dominated Utah would not happen as long as the Mormons

were polygamous. And by the end of the century, the leader (or prophet) of the

Church of Latter Day Saints had a revelation that the practice of plural marriage

should be stopped. In order to become a part of the United States, a sub-cultural

group made a major change in what had been up to then an essential group practice.

19 Grutter v. Bollinger, 539 US 244 (2003).20 Parents Involved in Community Schools v. Seattle School District No. 1, 551 US 701 (2007).21 Reynolds v. US 98 US 145 (1878).

188 F. Lewis

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The First Amendment area has complementary clauses guaranteeing free exercise

of religion and prohibiting establishment of religion. The meaning of separation of

church and state involves distinctions that are often subtle and difficult. In recent

decades, formal discrimination by government against well-known sects has

become virtually nonexistent. Increasingly, socially established religious opinion,

which usually dominates government, has been inclined to mutual toleration, but is

often unwilling to extend the same equal status to less traditional views or to views

that are seen as irreligious.

By the middle of the twentieth century, the broadened cultural mainstream was

reflected in the Warren Court’s doctrinal innovation in the area of church and state;

it had at least three notable aspects. The free exercise guarantee was interpreted on

significant occasions to define religion very broadly so that belief in a supreme

being could not be required; as a result, views not seen as really religious by the

more conventional were given implicit legitimacy.22 The Court also moved to give

minority religious practice that conflicted with majority governmental policy greater

degrees of exemption from otherwise valid laws of general applicability.23 And in

its leading and most controversial doctrinal innovation, the Warren Court banned

school prayer, announcing doctrine with both establishment and free exercise

components.24 The common thread in these cases is the increased sensitivity and

deference shown to minority religious views and practices that were not seen by

traditionalists as religious at all or that conflicted with majority-shaped govern-

mental policy.

In the 1970s, the Court strengthened the barrier between church and state,

making state aid to parochial schools a practical impossibility.25 And it gave Amish

children in Wisconsin an exemption from compulsory school attendance laws on

Freedom of Religion grounds.

15 A New Constitutional Narrative on Religion

But in the 1980s, the impact of the election of President Ronald Reagan and the

increased political assertiveness of fundamentalist and evangelical Christians began

to impact the national culture and the prevailing constitutional narrative. In Lynch v.Donnelly26 in 1984, the Court held that a government sponsored nativity scene was

not unconstitutional if it was placed among several other symbols and displays that

clearly lacked overtly religious significance. This was the beginning of a series of

decisions in the ensuing decades in support of a competing narrative which holds

22 See US v. Seeger, 380 US 163 (1965).23 See Sherbert v. Verner, 374 US 398 (1963).24 In the leading school prayer case of Engel v. Vitale, a small number of parents of school children in

New York challenged the state requirement that all public schools cause a brief prayer that the state board

of regents had written to be said aloud in each class every day. The board believed that the prayer, which

presupposed a God upon whom we depend, was non-sectarian, but the parents, identified in the case as

Jewish, Unitarian, and agnostic, disagreed. Engel v. Vitale, 370 US 421 (1962).25 Lemon v. Kurtzman, 403 US 602 (1971).26 465 US 688 (1984).

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that the prior doctrine’s rhetorical insistence on strict separation of church and

state27 reflected hostility to religion, and that expressions and manifestations of

religion in the public square can and should be welcomed.

A prominent subsequent case involved two other holiday displays.28 One was a

nativity scene on the grand staircase of a County Courthouse. The Court held that

this did violate the Establishment Clause because its principal or primary effect was

to advance religion and unlike the creche in Lynch it was not surrounded by non-

religious symbols to detract from that message. The second display was an 18-foot

Hanukkah menorah placed outside the City-County Building next to the city’s

45-foot decorated Christmas tree and a sign saluting liberty. And here, the Court

held that these things together did not convey a message of endorsement of religion.

Another case involved a challenge to a state university that funded most student

organizations but refused to fund one that promoted particular religious views on

the grounds that to do so would violate the Constitution’s prohibition against the

establishment of religion.29 The Court majority disagreed and held that the

University’s refusal to fund student religious publications was prohibited viewpoint

discrimination and violated the student groups’ free speech rights.

These cases show that when cultural change impacts political control of

governmental institutions, such control may then further facilitate the change by

altering somewhat the dominant constitutional narrative. But in the late 1960s and

early 1970s, one national cultural change in the US was so dramatic that it

succeeded in altering the dominant constitutional narrative even though such

changes occurred largely apart from control of the institutional mechanisms of the

national government.

16 Gender, Culture and Constitutional Narratives

For clearly the political forces that brought Republican Richard Nixon to power in

the Presidential election of 1968 and caused Republicans to systematically attack

the Warren Court’s liberal members did not, on the evidence, seek to obtain a

constitutional breakthrough for women’s rights. Nevertheless, a truly dramatic

cultural shift in the late 60s and early 70s produced a new constitutional narrative

about women.

Supreme Justices are a part of the national society and culture. They have friends,

they have colleagues, they read, they go to conferences, they socialize and have

conversations, they watch TV and movies. In the case of women’s rights, they have

wives, daughters, mothers, female friends and colleagues—they interact with them

and are influenced by them.

For 100 years, women had argued that the Equal Protection Clause of the

Fourteenth Amendment guaranteed that ‘‘no State shall deny any person the Equal

27 The US national culture has always, though highly imperfectly, contained within it the principle of

separation of church and state. The way in which different democracies have handled issues of religion is

the subject of much contemporary examination and controversy. See for example: Baruma [2].28 County of Allegheny v. ACLU, 492 US 573 (1989).29 Rosenberger v. Rector and Visitors of the University of Virginia, 515 US 819 (1995).

190 F. Lewis

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Protection of the Laws’’—and since women were unquestionably persons, they

should be covered by this provision. And for 100 years, all male Courts had

effectively laughed such claims out of court.30 Yet suddenly in response to the

remarkable cultural shift that was occurring [4], the Court acknowledged that ‘yes,

after all,’ the Equal Protection Clause did apply to women and offer them some

protection against discriminatory laws. Even more dramatically, the Court then

announced a constitutional right to an abortion in Roe v. Wade.31

When President Nixon attempted to move the Court in a conservative direction in

the late 1960s and early 1970s, some moderation of, or even reversal of, Warren Court

doctrinal development was reasonably predicted. The abortion decision, whatever

else it was, was the kind of audacious expansion of rights that one scarcely expected

from a Court that was self-consciously trying to move to the right. Indeed, many in the

US do not realize that Roe is not a Warren Court decision. Of the four appointees of

President Nixon then on the Court, three—Blackmun, Burger and Powell—supported

the decision. Justice Rehnquist was the only Nixon appointee to dissent.

What were arguably the two most important areas of post-Warren Court activism,

abortion rights and gender classification, involved important doctrinal innovations

that were related to an underlying change in American society and the national

culture as dramatic and far-reaching as any the US has experienced. Of course, a

cultural and constitutional counter-narrative developed shortly thereafter and its

impact on the abortion decision has been real. While it has not yet succeeded in

displacing the Roe narrative by obtaining outright reversal, it has succeeded in

significantly limiting its reach.32 Similarly, while the dominant constitutional

narrative still acknowledges women’s equality, gender remains technically a ‘‘semi-

suspect’’ classification under Fourteenth Amendment doctrine, its advocates unable

to command a majority for making gender classifications suspect and subject to

strict scrutiny as is the case with racial classifications.

Nevertheless, the rapid rise of contemporary feminism and women’s rights

concerns to a serious position on the mainstream agenda, the entry of most women

into the workforce and the routine pursuit of serious professional or business careers

by the preponderance of upper middle-class women in recent decades have all been

remarkable developments. Evidently, even conservative Justices could not be

unaffected by so profound a cultural shift and the dominant constitutional narrative

changed accordingly.

17 The Cultural Shift on Gay Rights

Something similar seems to have taken place more recently in regard to the question

of equal rights for gay people. In 1986, in Bowers v. Hardwick,33 a sharply divided

30 Bradwell v. Illinois, 83 US 130 (1873).31 410 US 113 (1973).32 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992); Gonzales v. Carhart,550 US 124 (2007).33 478 US 186 (1986).

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Court refused to strike down a Georgia law criminalizing sodomy. The two sides

passed each other like ships in the night. The four dissenting Justices framed the

issue in privacy terms—seeing effective enforcement as requiring government

intrusion into the bedroom of consenting adults. The five-Justice majority saw the

petitioners as demanding a constitutional right to commit sodomy.

But over the next several years, US popular culture in particular began showing

gay people in a more sympathetic light in conventional settings and often in warmly

humorous ones on television, in movies and the like [1]. The change in popular

attitudes toward gays over the last two decades has been marked and here again,

cultural shift seems to have impacted constitutional doctrine.34

18 The Shift Reflected in Changed Constitutional Narrative

Justice Lewis Powell was widely quoted upon his retirement as stating that the one

vote he most regretted was his vote with the majority in the Bowers case. In June,

2003 the Supreme Court reversed Bowers in Lawrence v. Texas,35 holding that the

constitutional right of privacy does indeed prevent prosecution of adults engaging in

consensual gay sex. Not long after that, the Supreme Judicial Court of Massachu-

setts held that the Massachusetts Constitution’s equality language required that the

right to marry be extended to same-sex couples.

Still, whether and when the national culture and the dominant constitutional

narrative will be ready to accommodate same-sex marriage as gay people mobilize

to achieve equal rights is unclear. At this time, David Boies and Theodore Olson,

the two lawyers who were on opposite sides in 2000 in the case of Bush v. Gore,36

have joined forces to overturn California’s ban on gay marriage on the grounds that

it deprives gay people of a fundamental constitutional right. Other constitutional

challenges are ongoing to the ‘‘Defense of Marriage Act,’’ a federal statute that

defines marriage for all national legal purposes as between one man and one

woman. At this time, the outcome of these cases is uncertain.

19 Reactive Identities: the Contemporary ‘‘Tea Party’’ Movement

Other current cultural conflict in the contemporary US is being manifested by the

‘‘Tea Party’’ movement—a loose, incoherent ‘‘revolt,’’ that also includes elements

that are tied to a dissident constitutional narrative. Mark Lilla [17] has described the

movement this way:

Historically, populist movements use the rhetoric of class solidarity to seize

political power so that ‘the people’ can exercise it for their common benefit.

34 Jason Pierceson [25] gives considerable weight to state court decisions as well.35 539 US 558 (2003). As a matter of interest, in the years subsequent to Bowers, the Georgia Supreme

Court had struck down the statute there involved as a violation of privacy guarantees of the Georgia state

constitution.36 531 US 98 (2000).

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American populist rhetoric does something altogether different today. It fires

up emotions by appealing to individual opinion, individual autonomy, and

individual choice, all in the service of neutralizing, not using, political power.

It gives voice to those who feel they are being bullied, but this voice has only

one, Garbo-like thing to say: I want to be left alone.

A new strain of populism is metastasizing before our eyes, nourished by the

same libertarian impulses that have unsettled American society for half a

century now. Anarchistic like the Sixties, selfish like the Eighties, contradict-

ing neither, it is estranged, aimless, and as juvenile as our new century. It

appeals to petulant individuals convinced that they can do everything

themselves if they are only left alone, and that others are conspiring to keep

them from doing just that. This is the one threat that will bring Americans into

the streets.

Welcome to the politics of the libertarian mob.

The reactive identity of ‘‘real Americans’’ taking back their country from what

they seem to perceive as a federal government dominated by urban ‘‘elitists’’ and

racial minorities is palpable—despite the fact that the US’s first President with black

skin has consistently strived to present himself as post-racial.

20 Current Contesting Legal-Constitutional Narratives

The obsession that President Barack Obama was foreign born, that his Hawaiian

birth certificate is fraudulent, and that he is not legally and constitutionally

President, is a fundamental tenet of many on the fringes of this movement—and the

claim seems impervious to reason and clear evidence.

Of greater consequence is the claim by some that the recently enacted Health

Insurance Reform legislation, which its proponents see as the most far-reaching

national social welfare legislation since the 1960s, is unconstitutional. In the several

decades following the Court Packing Crisis of the 1930s and the Roosevelt

revolution in constitutional doctrine, the power of the federal government to

regulate this large segment of the US economy would have been unchallenged. The

preponderant opinion among commentators is still that this attack on the Health

Care Reform legislation will fail. But with a large and often dominant conservative

bloc on the current Supreme Court seemingly unafraid to flex its muscles on behalf

of a conservative agenda,37 one cannot be absolutely certain that this dissident

narrative of constitutional doctrine will not achieve at least partial endorsement by

the Court.

37 In Citizens United v Federal Election Commission, 558 US; 130 S.Ct. 876 (2010), the 5-4 conservative

Court majority declined to decide the issue before it narrowly and reached to extend First Amendment

speech rights rather broadly to corporations, in effect rejecting distinctions between them and real people.

Since the Court has previously held that restrictions on spending for speech activities violate free speech

rights, many fear this decision will open the door to even greater corporate influence over the politics of

the USA.

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21 Conclusion

In the short or middle term, the US always may seem to have ethnic and cultural

divisions that are deep, and it may be faced with strong demands for sub-cultural

entrenchment that contradict, or offer an alternative to, the prevailing mix of

universalism and individualism that constitutes the dominant national culture. And

these will produce, and be reflected in, contesting constitutional narratives that may

well prevail for a time. But while at any given moment different sub-cultures exist

and flourish within the geographic boundaries of the USA, taking the long view,

they are transformed and incorporated just as they in turn transform the national

culture, and this constant interactive process will inevitably transform the dominant

constitutional narrative as well.

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