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Justice Kagan and the 'Naked Public Square'

9:45 AM, May 7, 2014 • By ADAM J. WHITE
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That’s an interesting set of statements and it echoes something that Justice Kagan said at oral argument–that “when we relate to our government, we all do so as Americans,” not as religious or non-religious individuals. I wonder whether all agree with this view. I'm not sure that I do.

I understand it to be emphasizing and praising equality before the law, and that is certainly a commendable and important ideal.

But an alternative position–and one, I think, entirely consistent with the general principle of “pluralism and inclusion” championed by the dissent–is that “when a citizen stands before her government,” she brings to that encounter the full panoply of communal, institutional, associational, and religious commitments and bonds that have characterized the lives of some of the very best citizens of this country, past and present.

DeGirolami's comment calls to mind the famous lines of Edmund Burke's Reflections on the French Revolution, in which Burke urges that civic virtue is promoted by—not undermined by—each citizen's prior attachments not just to family, but also to social class and our other "little platoons": "To be attached to the subdivision, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love to our country, and to mankind."

Furthermore, as Yuval Levin explains in his recent account of Burke, "breaking apart all the connections that stand between the individual and the state and leaving equal but separate individuals alone would expose them all to the raw power of the state directly. ... The social institutions that stand between the individual and the government are crucial barriers to the ruthlessness of public officials and the occasional cruelty of majorities. They are essential to liberty."

On the other side of this spectrum, at its far extreme, we find Teddy Roosevelt's famous criticism of "hyphenated Americans":

What is true of creed is no less true of nationality. There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all. This is just as true of the man who puts “native” before the hyphen as of the man who puts German or Irish or English or French before the hyphen. Americanism is a matter of the spirit and of the soul. Our allegiance must be purely to the United States. We must unsparingly condemn any man who holds any other allegiance. But if he is heartily and singly loyal to this Republic, then no matter where he was born, he is just as good an American as any one else.

Roosevelt reiterated a year later, "let us be Americans, nothing else." Such sentiments find echoes, perhaps distant, in Justice Kagan's dissent—at least when she urges each American citizen "performs the duties ... of citizenship ... not as an adherent to one or another religion, but simply as an American."

These arguments cut across familiar political lines; indeed, I suspect that all of us occasionally harbor thoughts on both sides of the spectrum. Conservatives might today share DeGirolami's concerns about Kagan's dissent (and Roosevelt's concerns about "hyphenated Americans"); but they might also have bristled, just a few years ago, at Justice Sotomayor's suggestion that as a justice she would benefit especially from "the richness of her experiences."

And conservatives are not the only ones who likely have seen both sides of these questions. Indeed, note that Justice Sotomayor herself joined Kagan's dissent, despite the notes strikingly at odds with her own account of how each judge's own background affects the judge's work.

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