March 29th, 2010

Sacrificial Nation

By Paul W. Kahn.

The United States is a political theological project. Popular sovereignty is the mystical corpus, and sacrifice is the act of self-transcendence.



What sort of political phenomenon is the United States? Arguably the first modern nation-state, it seems increasingly anachronistic. Long committed to the rule of law, it is now known for lawlessness. A leader in the move toward globalization, it often looks unilateralist. Some of this was accentuated by the last administration, but it would be a mistake to think the Bush administration simply an aberration. There has never been a jurisprudence of international human rights in U.S. courts; Americans are still fighting the war on terror — although it may have been renamed — their skepticism about international institutions remains deep.

Americans have long been unilateralists in the use of force. On human rights, the story is no different. The U.S. only started to accept human rights conventions when it discovered the power of attaching reservations to its instruments of ratification. Those reservations are intended to deny the treaties any domestic legal effect. The U.S. commitment to international human rights law goes exactly this far: Americans agree to abide by the conventions just to the extent that they coincide with that which is already required by domestic law.

The political and legal phenomena we confront here are elements of American exceptionalism. This can hardly find its ground in justice, when the whole point is to reject a neutral point of view. The claim that rules that apply to the rest of the world do not apply to the United States is not a conclusion we can reach behind the Rawlsian veil of ignorance. It is not a claim to which others can or should be sympathetic. Lack of sympathy is one thing; failure to understand is another. American exceptionalism, many think, is simply the expression of self-interest by an imperial power. Others respond that it is really not in American self-interest at all. Whether or not it is, focusing on self-interest will not take us to the heart of the matter. American exceptionalism predates the U.S.’s new and likely short-lived status as a hyper-power. If neither justice nor interest explain American exceptionalism, what does?

America is not just a political project; it is a political-theological project. That religion is an important aspect of American life is hardly a startling proposition. America begins with communities of Christian exiles. It is not an accident that the American Revolution was framed by the first and second Great Awakenings. Christian movements were prime movers in 19th and early 20th century politics — from abolition, to prohibition. It was long a commonplace to describe America as a “Christian nation.” No other country in the West so easily accepts the deep penetration of religious faith into its political rhetoric. “In God, we trust.”

Population surveys of American church attendance and religious beliefs always astound the modern cosmopolitan. Still, these numbers and these expressions of faith lead us in the wrong direction, if we react by thinking that Christian influence is simply that of a particularly powerful interest group. There may be such influence, but to focus on it is to misunderstand the point of a political-theological inquiry into American exceptionalism. That point has little to do with the large number of Americans who happen to be Christians, but rather with the way in which “the Christian imagination” provides the deep structure of American political belief.

If the purpose of American governance were simply to solve coordination problems among individuals, then justice would be the appropriate measure of political life. However, Americans do not believe in America because it is a means to some other good. It is itself a source of meaning that can displace all others. Indeed, Americans may have a poorly developed social-welfare state because to them politics is first of all a project of transcendent meaning. If the object of our inquiry is not justice but meaning, then the form of inquiry must shift from political theory to political theology.

Modern political theory begins with the idea of contract — the social contract. The American political imagination begins with sacrifice. The community arises out of and is sustained by sacrifice. The most famous line of political rhetoric of the latter half of the 20th century was Kennedy’s “ask not what your country can do for you, but what you can do for your country.” He asked this of his “new generation” of Americans — a generation that had already fought two wars and was deep into the Cold War with its reciprocal threats of mutual assured destruction. One hundred years earlier, Lincoln set out the same proposition to his generation. The Gettysburg Address, the ground norm of all American political rhetoric, invokes the theme of national resurrection through citizen sacrifice: that “from these honored dead … this nation, under God, shall have a new birth of freedom.” Lincoln speaks to the same sacrificial theme expressed in the conclusion of the Declaration of Independence with its “mutual pledge” of lives, fortune, and honor. Already as a young man, Lincoln had identified the unique character of the American political-theological project, when he called for a “reverence for the Constitution and laws” to step into the fading place of the scarred body of the revolutionary soldier who literally carried the stigmata of his faith. Lincoln himself becomes the iconic figure of sacrifice, linking law to death.

This appeal to sacrifice is not just anachronistic political rhetoric. Rather, it remains the framing narrative of American political identity. When the World Trade Towers are attacked on 9/11, the thousands of deaths are not seen as victims of a mass murder. Rather, their deaths are the latest iteration of the relationship that every citizen bears to the popular sovereign. That sovereign can always demand a life; citizenship is never free of the possible test of faith. Sacred violence, not individual well-being, bears the meaning of this state. Americans hear, and want to hear, the rhetoric of ultimate sacrifice: “from these honored dead … this nation, under God, shall have a new birth of freedom.” Still today, under this vision of national rebirth, terrible violence is accomplished. This time, the violence is directed outward, but why not, for America brings the “good news” that through sacrifice comes freedom.

A nation founded in sacrifice is one that is willing to kill. Indeed, this is a familiar paradox: for the sake of love, we are willing to destroy. If we ask how the political-theological project differs from the theological, I would locate the difference exactly here: both locate meaning in sacrifice, but the locus of political sacrifice is always the reciprocal violence of killing and being killed. The willingness to die creates the license to kill — a principle formalized in the combatant’s privilege in humanitarian law. The Christian idea of sacrifice without threatening violence in return represents the end of the political. Political killing establishes borders; Christian sacrifice grounds a borderless church.

America cannot conceive of itself as a colonizing power, for it understands its power as the consequence of its willingness to sacrifice. The United States has been at war or preparing for war for more than half of its existence, including virtually all of the last 100 years. For half of that time, the threat of nuclear annihilation of everyone and everything has been a constant. Americans have lived their ordinary lives in the shadow of the demand for universal sacrifice. Political identity could always displace every other conception of the self, and the political can always become a matter of life and death. Even when we criticize the latest war in Iraq — misguided as it may have been — we hear again the theme that at least part of the failure was in the Administration’s failure to ask for sacrifice from all.

Regardless of the demographics of who actually joins the military, today’s war on terror is imagined within this framework of political sacrifice. The new battlefield is imagined as literally anywhere, and thus everywhere. The result is that anyone can be called upon to sacrifice and to kill. The paradigmatic moment in this new national endeavor of sacrifice for national rebirth is not so much the destruction of the World Trade Towers, but United Flight 93, brought down by its own passengers in a sacrificial act of killing and being killed. In this new era, every citizen can be conscripted at every moment. Conscription has moved beyond the capacity of law to regulate. Instead, conscription now characterizes a post-legal condition of political sacrifice.

This sacrificial tradition is often seen through the lens of republican political theory: citizen soldiers displaying the military virtues of honor and courage in the pursuit of civic fame. This line of thought gives us the well worn battle between liberalism and republicanism in accounts of American exceptionalism. Neither gets to the heart of the matter. Closer to the mark is Carl Schmitt’s concept of the exception. However, in America the exception is inflected through an idea of the popular sovereign. At that point, the exception becomes the exceptional, as in American exceptionalism.

At stake in the politics of sacrifice is participation in the mystical corpus that is the popular sovereign: a giving up the self and a living in and through the transcendent being that is the popular sovereign. Popular sovereignty in the United States is distinctly not a conception of self-government through elections that express the majority will as it emerges from constantly shifting coalitions. Political theory may give us such a process view of popular-sovereignty, but to pursue this path is like thinking that we can understand religious faith by examining church attendance statistics. The popular sovereign is a trans-temporal, omnipresent, and omniscient plural subject. It is invisible to those outside of its presence just as other forms of the sacred are invisible to those outside of the faith. It is the reified object of an experience of faith sustained through the imagination of sacrifice. This is the national narrative, endlessly repeated in film, books, and political rhetoric.

As with any appearance of the sacred, there is a convergence of the is and the ought. America is always striving to be that which it already is — to live up to its own ultimate meaning as the expression of the popular sovereign. The history of the nation is the double narrative of sacred presence and falling away — a political life of salvation and sin. This is the political-theological meaning of judicial review, which asks whether some product of the ordinary political process is a showing forth of the truth of the popular sovereign. Or, is it only a false appearance? The Court’s role is to recall Americans to the moment of rupture that was the nation’s own self-creation.

Whenever the popular sovereign appears, it is miraculous. It exists outside of the ordinary course and concerns of everyday life. Accordingly, its appearance is always marked by violence, for the character of the infinite is to displace the finite. Order returns only as the nation takes up the burden of interpreting the remnants of sovereign presence that have been left behind. Those remnants are the higher law of American political life. The rule of law in American life is a constitutionalism founded in an originary act of violence — the mystical presence — of the popular sovereign.

Realization of the American popular sovereign takes two forms: sacrifice and representation, or violence and law. In sacrifice, the sovereign is experienced as unmediated presence; in law, that presence is mediated through symbol and ritual. The relationship here is of identity to representation. Both are necessary elements of the political imaginary: revolution must be followed by constitution; constitution must be grounded in revolution. Citizens are to see through the representations of law to the popular sovereign whose law it is. Without that, law might be just, but it would not be ours. Mediating between identity and representation is interpretation. Here, we find the origin of the form and intensity of American legal debates, which look so irrational to outsiders — irrational, because they are not really about justice. Rather, they are about the possibility of realizing a free and meaningful self through law.

In speaking of political sacrifice, I am not appealing to metaphor. Sacrifice is a giving up of a finite set of concerns — located immediately in the well-being of the body — through the act of making present a transcendent value. This normative experience of surplusage, which destroys the finite by making present the infinite, is constitutive of the national community. This is the lived meaning of the state as a political-theological project in which national existence is not just one end among others. Rather, it is that for which everything else can be destroyed, and that which has a claim upon everything else. The American nation wants only to be itself without end. It is, for example, not a step on the path to a cosmopolitan order.

Successive immigrant groups have taken ownership of the national narrative by taking up this project of self-sacrifice. In this way, they too become a part of the popular sovereign. Historically, citizenship in the United States has depended upon a perceived capacity to bear the material presence of the popular sovereign. Conversely, any group that, like blacks or Chinese, was perceived as unable to bear that burden has never been welcomed. This is not a calculation of justice, but neither does it mean that Americans’ capacity to perceive sameness is somehow frozen independently of their understanding of justice. Americans want their law to be just; they want it to be just precisely because it is their law.

The sacrificial character of American political experience is largely invisible to outsiders. The connection of sacrifice to popular sovereignty frames the internal imagination, not the external perception of power. That someone is sacrificing himself in the act of threatening violence does not change the appearance of the act to the victim. Internally, however, the popular sovereign exists only as long as, and just so far as, citizens experience the truth of the self through the act of sacrifice. If they come to view sacrifice as a demand to be measured by any metric outside of itself — whether of future benefits or of justice — then popular sovereignty as a conception of the sacred will have ceased. We may still vote, but the nation has become a means to ends that voters bring to the political process from outside — perhaps commercial, perhaps familial, perhaps charitable and global. At that point, the political theological project no longer makes any sense.

Were the sovereign to show itself only in the form of sacrifice, then the nation would be in that eschatological moment that passes from theological speculation to the actual threat of a thermonuclear exchange. We should not forget this possibility at the border of the American political imagination. Yet, most of the time, access to the popular sovereign is mediated through the rituals and representations of law. The starting point for understanding the American rule of law is the idea that the law gains its authority not from the justice of its demands, but from the will of the sovereign. This is an old idea in jurisprudence, but it is experienced as a literal truth in America: the authority of the judge derives directly from his or her claim to articulate the meaning of texts that are themselves “remnants” of popular sovereignty. Judges do not rule us by a claim to legal expertise. Instead, they model for us an idea of sacrificial citizenship: they give themselves up to the law. This is the meaning of that peculiar rite of passage that is the confirmation hearing: at the end of this process, the justice is reborn, emptied of all but the constitution.

There has recently been a striking convergence among Western countries with respect to jurisprudential methodology. Courts work from a specified list of human rights — those rights necessary for a free and democratic order — put forth in numerous, overlapping conventions. The judge’s work is to continue the deliberative process of reason: he or she considers how best to actualize the right in a particular context in which other interests, and other rights, must be given their due. This methodology is called “proportionality review” or “balancing.” It is thought to have the objectivity of scientific inquiry. Thus, there is nothing disturbing about looking to foreign courts for guidance or locating decisions in transnational courts. Reason knows no boundaries of place or time. Judges are experts and rights are the domain of their expertise.

American constitutionalism simply does not fit this global pattern. Not because the content of the American law of rights — “civil rights” — is substantially different from that of international human rights. Indeed, one paradox of American exceptionalism arises out of this substantive convergence: if so little is at stake substantively, why is this pattern of judicial reasoning such an emotionally charged issue in American politics? Indeed, this pattern is not seen as a model of law at all, but of judicial illegitimacy in three dimensions. First, the rule of law is not the product of scientific expertise. Second, judges enjoy no deference as experts, for there is no such thing as “political expertise” and American law must always be held accountable to American politics. Third, if there is neither legal science nor political expertise, then a claim to be applying reason is either an assertion of false consciousness or an act of bad faith.

What is it that American judges do, if they are not applying reason to discern the progressive path of rights in particular contexts? They are interpreting a text. Their authority comes not from the application of universal reason, and certainly not from the appeal to an “all things considered” judgment of reasonableness. All American debates over legal rights are hermeneutical: judges and lawyers argue over the appropriate interpretive attitude to bring to that text. To the uninitiated, American textualism looks very odd. Why, they ask, do Americans care so deeply about a text produced over 200 years ago by an unrepresentative group of privileged white males? To be bound by such a text denies the premise of liberal political theory, which understands political order as a continuous project of reform under the guidance of reason, in pursuit of individual well-being. Where is the possibility of progress in a legal culture that fetishizes an archaic text?

My description already suggests an answer. To speak of the hermeneutics of an archaic text is to look in exactly the right direction. The authority of the American constitutional text comes neither from a claim of democratic legitimacy, nor from a claim of justice. The Founding Fathers did not belong to a golden age of scientific insight. They were slave holders — failing on the moral front — and they were wealthy, white males — failing on the political representation front. None of this matters, because the text they produced is not a text that they authored. Rather, the authority of the constitutional text derives from its appearance as an act of popular sovereignty. This text is the remnant, the evidence, of sovereign presence.

The judicial role has to be seen as a form of ritual: to bring ordinary life into contact with the remnants of sacred presence. The privilege of judging comes from the belief that the source of public meaning in American life comes from that relationship. Thus, there is no aspect of life to which Americans cannot address the question “Is it constitutional?” They do so all the time. They are bound by what judges say because through their voice Americans are to hear again the voice of the now withdrawn popular sovereign. If they fail to hear that voice, they will not understand why they should listen at all.

American legal theorists are constantly trying to explain how the counter-majoritarian project of judicial review can be legitimate in a democratic system. But this question fails to recognize the structure of the American political imagination. Of American constitutionalism we can say with Saint Anselm “I believe in order to understand.” The Constitution binds because it is the product of the popular sovereign. It continues to bind as long as faith in the popular sovereign survives.

Many Americans continue to live in a sacred space in which the infinite announces its presence by the displacement of the finite; in which the legitimacy of law is rooted in ritual; and in which the outside world is seen simultaneously as threat and mission. We oscillate between missionary zeal and isolationism. Americans cannot exactly export their law because it is quite literally theirs. But Americans cannot believe that other states do not have an equal capacity for an authentic act of self-creation through popular sovereignty. They cannot help but believe that others want to be like them.

Of course, I have drawn my distinctions sharply in order to emphasize the different world views at stake and to try to pierce some of the misapprehensions of American political practice. The argument may sound like mere apologetics for a political culture that is today driven by the twin sources of Hollywood — standing for unending individual consumption — and the military industrial complex — standing for a rapacious foreign policy. No one can deny the presence of these forces, anymore than one could deny that people of religious faith also pursue their desires and interests. Religion is as much about doubt and sin, as faith and virtue. Similarly, the political-theological argument should not be seen as a rejection of the claims of science and reason more generally. We are not a nation of creationists, fighting against the insights of modern science. We don’t reject reason, but neither can we say that science has convinced us that religious faith is simply false belief. The same is true of political belief and practice: the insights of political theory have to find a place alongside the faith in popular sovereignty. Neither in science nor in interest, however, will we find the fundamental structure of the American political imagination.

A contemporary political theology makes no metaphysical claims about the nature of the sacred. Its object of study is the imagination and the world of meaning created and sustained by our collective imaginary. The United States is a political theological project in which the critical terms are popular sovereignty as mystical corpus, sacrifice as the act of self-transcendence, and law as representation of the absent sovereign. This account would be entirely incomplete without making the obvious point that I am describing a community of love. Such a community has an acute sense of its boundaries, both spatial and temporal. America is a constant test to itself: will it fail in the faith that sustains the community? That test today comes not just from the attractions of consumption and the sins of power, but equally from the rise of a global demand for justice. Reason no less than interest poses a threat to love.

American exceptionalism is the exceptionalism constitutive of every community of love. I cannot tell anyone whether they should abandon justice for love or love for justice. This is what it means to say that values are incommensurable. All that can be said is that love, like every form of faith, is tenuous. When faith fails, we find that which we did for love seems to us now to be only injustice. Exactly this makes the state so dangerous: what seemed to be sacrifice can suddenly appear to be murder. Yet, justice without love is not likely to strike many people as adequate, for we seek meanings that promise to transcend, not just to order, our finite lives.

Paul W. Kahn is the Robert W. Winner Professor of Law and the Humanities at Yale Law School. His most recent book is Sacred Violence: Torture, Terror and Sovereignty. This fall, Columbia University Press will publish his Political Theology: Four New Chapters on the Concept of Sovereignty.

  1. nhmortgagebroker reblogged this from theutopian
  2. heartymusings reblogged this from theutopian and added:
    Just a fascinating reading of U.S. politics.
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