On (Not) Losing Our (Civil) Religion

On April 3, 1890, in Lehi, Utah, my maternal great-great-grandmother, Martha Mercer Kirkham, joined with other women to form a local chapter of the Woman Suffrage Association of Utah, an affiliate of the National Women’s Suffrage Association. Women in Utah had been granted the right to vote in local and territorial elections in 1870, but the Edmunds-Tucker Act, passed by Congress and signed by President Cleveland in 1877, disenfranchised Utah women as part of the national government’s effort to crush the Mormon defense of plural marriage. Kirkham wasn’t a plural wife, but she was a voter, and was deeply frustrated at this right being taken away from her. A humble 19th-century Utah woman, she stood and was recorded as saying:

Mrs. President, Ladies and Friends: 

In my weak way will try to address you a few moments. I believe we are in a good cause. We have our rights but have had one great right taken from us. I, for one, felt bad when my vote was taken away. I only had the privilege of voting a few times. If we live as we should do we would vote the same as our husbands, and he, being the head, should know how to lead, which I believe is his place, and woman to follow. I have always believed that if that good feeling that should be between man and wife existed they should be able to walk along together and be one in council with their family, and also in business; otherwise there is confusion. But the woman should not be looked upon as below the intelligence of man. She has the need of it and should try to keep herself posted with the spirit of the times for her benefit and also for the good of her family. How can she impart what she does not know herself? We have need of all we can learn, for how great is the mission of woman, and why should she not be able to have a voice to make law, to govern her sons and daughters? I, for one, would be pleased to have my vote again; it looks rather gloomy now, but no excellence without labor.

Kirkham never did get her vote back; she died at 37 years old in November that same year, and Utah women didn't get the opportunity to vote once again until Utah was admitted as a state in 1896. And of course, I strongly suspect that no one reading this (unless one of those readers are Secretary of Defense War Pete Hegseth and his sometimes-spiritual advisor, the anti-feminist and Mormon-suspicious Christian nationalist, Doug Wilson) would be fully comfortable embracing Kirkham's acceptance of patriarchy and headship when it comes to family roles. Still, her insistence that she was not "below the intelligence" of her husband--and, by implication, any other person--and thus should enjoy the same legal rights as he is, I think, the deepest, truest aspect of America's whole experiment with self-government, its whole civil religion, that one can imagine. The fact that hundreds of millions--and not just American citizens--have been inspired by this particular principle ought to be evidence enough of that, unless you're one of those reactionary or postliberal conservatives who thinks the very idea of popular sovereignty is an unfortunate canard.

I’ve associated America’s civil religion with the extension of basic democratic rights—most centrally the right to the vote, and thus the right to participate formally in the kind of collective self-governance which the United States, when understood in light of Jefferson’s Declaration of Independence, is founded upon—many, many, many times. I recognize the theoretical complications with doing so. What I’m doing is trying to connect what some would call “sentimental,” or “bland,” or even “anemic” liberal practices (and voting can certainly seem like all of the above, sometimes) with something tied up with deeply communitarian or cultural or even spiritual understandings of identity and belonging. Much of the scholarly writing on these topics tends to focus on “nationalism” or “patriotism,” and pose the question as to whether or not such feelings can ever be purely “civic,” or whether there needs to be (or inevitably, however unknowingly, must be) some kind of historical or ethnic or religious or linguistic or racial character to those senses of identity and belonging. Those in the latter camp (Vice President J.D. Vance quite obviously is, or at least wants to present himself as such) look upon the articulation of a civil religion or a sense of American identity that involves mostly just individuals exercising democratic freedoms and choices as nonsense.

My response to that—the response that makes me want to both keep those liberal freedoms and expand them and reclaim them when taken away, as my great-great-grandmother did—is to say that Vance, et al, have an exceptionally narrow understanding of how social ties and senses of belonging are formed in the first place. It is, I would argue, an unavoidable facet of human nature to want to understand the actions of individuals (including oneself) as embedded in some sort of collective, morally (and often religiously) substantive—that is, “truthful”—cultural order. This is the fundamentally dialogic character as human beings coming out: our ability to speak, think, associate, and judge impels us to retrieve from or construct through our social lives an arrangement of meaning. The result, as numerous religious historians have pointed out, is that the arguably “unsubstantive” civic actions that we take—like voting—themselves develop over time (through rituals and practices and terminology and traditions and more) into what might be called "voluntary national religious establishments." Not in the sense of an established church, but in the sense that there are forms of life and routines of expression that we come to rely upon, that we come to view as ordinary, or normal. And yes, as such norms develop and put down their roots, the question of defending them (as well as regularly critiquing them) becomes a part of the equation.

The paranoia some feel about how the changes which extending the notion of equality into ever more arenas and ever more aspects of life (from property and religion to race and gender, from voting and military service to marriage and participation in high school sports) may threaten those norms is not unreasonable. But what is unreasonable is the claim that the push and pull over our norms and social constructions, over the bonds and beliefs which constitute our civil and religious order(s), is itself somehow beside the point, and that really all that matters is some kind of sovereign declaration of identity. (Which necessitates a nation-state with a unified executive capable of issuing such declarations, perhaps.) Robert Putnam, the scholar who developed the idea of social capital, essentially concluded that the difficulties people like Vance highlight are short-term ones, ones that—in particular in immigrant societies like the U.S.—is always being negotiated by the emergence of “cross-cutting forms of social solidarity and more encompassing identities.” That is substantive stuff—that’s what makes for strong citizens, and thus strong families and strong neighborhoods. (As my great-great-grandmother Kirkham put it, “how great is the mission of woman, and why should she not be able to have a voice to make law, to govern her sons and daughters?”)

As a matter of theory and history, the complications in making these connections are many. Saying that America’s Jeffersonian creed, the affirmation that “all men are created equal,” and that therefore—especially once the U.S. Constitution was forced, following the Civil War, to bring the principles of the Declaration into its fundamental law—the affirmation that American citizens by right enjoy the ability to vote and act and build lives unconstrained by some natural hierarchy, itself constitutes our civil religion, our “voluntary establishment,” in an entirely substantive and not merely “civic” way, is to claim a lot. Some would argue that it claims too much, and that it would be much better to seek to articulate a liberal vision of equality and democratic participation and anti-hierarchy without messing around with claims which necessarily require a faith in an establishing “people” who are substantively articulating themselves in the first place. I find those arguments fascinating. But I’m enough of a liberal republican, a believer in both individual democratic rights and in the places and communities—the many diverse publica of the American nation—wherein we collective exercise them, to trust that, whatever else was wrong with the Founders original understanding of this American experiment, these principles, the principles that my great-great-grandmother humbly hoped to be able to exercise again before she died, are ones that this country can still run with, can still both defend and critique, can still build upon.

I don’t think America has lost its civil religion yet. I still believe in the power of ordinary people to organize (as those women in the Lehi chapter of the Woman Suffrage Association of Utah were), to express themselves (as Martha Mercer Kirkham stood up to do), and to vote, thus placing themselves, as citizens, on the same level as everyone and anyone else. Understanding the challenge posed by those who threaten that which binds these practices, these perspectives, this power, together with their own personal demagogic declarations, whether as performers of anti-democratic epic theory or just plain old-fashioned bread and circuses, is probably the first step to making sure we won’t. 

 

 

Getting Direct About the Politics Behind Kansas’s August Amendment

Walking around my Wichita neighborhood over the past couple of weeks, I’ve noticed something about the yard signs encouraging people to “Vote No” on the constitutional amendment to allow for the popular election of Kansas Supreme Court justices come August 4. (Until just the past three days, I hadn’t seen with my own eyes any “Vote Yes” yard signs, but I have now seen a couple.) These yard signs are, in their color, font, and design, basically identical to many of the “Vote No” yard signs I saw around my neighborhood four years ago, when the vote to change the language of the Kansas state constitution so as to eliminate any judicial support for abortion rights was decisively defeated. Just look and see:

 

 

 

 

 

 

 

 

 

 

 

 

Relatedly, over the past few weeks my home has received about a half-dozen mailers encouraging a no vote this August. (We’ve received exactly one “yes” flyer thus far.) Two of those mailers were particularly emphatic, insisting that this vote is about keeping the Kansas Supreme Court “fair and impartial” and preventing “billionaire political donors” from influencing the justices by paying for the political campaigns judicial candidate would have to run to win a spot on the Court. I’ve no doubt about the sincerity of those who created these messages, and the arguments they’re making are entirely valid. But the fact that both were mailed by Planned Parenthood Great Plains, an organization dedicated to preserving abortion rights in Kansas, is worth noting nonetheless.

My point is simple. On the surface, the constitutional referendum Kansans will vote on this August 4 is simply a question about changing one of the elements of our state’s constitutional structure, a merit-based structure that emerged over 80 years ago, was first adopted in Missouri—Kansas adopted it about in 1958—and was quickly adopted by many other states concerned about corruption in partisan election judicial-selection systems that were then common (though in recent decades has been rejected by voters in multiple states seeking greater democratic accountability from their justices as well). But substantively, this constitutional referendum is actually a vote about possible policy outcomes—and while that’s usually not being said by those most engaged in the campaign both for and against the referendum, I suspect that pretty much everyone paying attention already knows it.

Earlier this month, Amii Castle, a law professor at the University of Kansas, said this quiet part out loud, using the very words of some of the strongest Republican backers of the amendment—Kansas Attorney General Kris Kobach, and Kansas Senate President Ty Masterson—to show that this proposed amendment is rooted explicitly in the failure of the 2022 anti-abortion amendment, and the desire to get different judges on the Supreme Court so as to get different rulings regarding abortion rights in Kansas. Knowing that, why shouldn’t those who want to defend those rights campaign on the same terms as well?

Castle, though, received some push-back on social media and elsewhere for being so explicit, with some of those opposed to the amendment insisting that constitutional principles of judicial neutrality supposedly protected through Kansas’s current, somewhat complicated system of choosing Supreme Court justices (nomination by a judicial commission, appointment by governor, and retention elections at the conclusion of a judge’s term) are the paramount concern.

As someone who teaches the arguments over those constitutional principles, I respect the claims of those—including some former members of the Kansas Supreme Court itself—who believe that Kansas’s procedure for choosing justices is worth preserving simply on its own terms. But as someone who is also theoretically suspicious of most efforts to keep the messiness of electoral politics out of the judicial side of our government, I find myself rather more appreciative of those who choose instead to present the possible policy consequences of electing the members of the Supreme Court more directly

Does this mean that I don’t respect Kansas’s system for choosing Supreme Court justices? Not at all—I can see the civic virtues of the prioritization of professionalism and at least nominal nonpartisanship in our selection process. But I can also see its democratic flaws. For example, the fact that despite numerous contentious decisions over the nearly 70 years during which this system has been in place in our state, not a single Kansas state Supreme Court justice has ever lost their retention election, provides—at least to my mind—just as much evidence of the limitations of the democratic checks upon our appointed state justices as do Kansas’s gerrymandered congressional districts when it comes to questions of democratic representation.

Many might challenge me right here—in what sense should “democratic checks” or “democratic representation” be at all relevant to the judicial branch in the state of Kansas, or anywhere else? Isn’t the judicial branch supposed to be counter-majoritarian, a set of referees and umpires who are not playing the political games of democracy, but who rather are simply imposing the apolitical rules and processes of the majesty of the law?

Responding to that challenge would require me to get into the “theoretical suspicions” I referenced above. Specifically, my two-fold suspicions that 1) the emergence of the idea of an independent judiciary actually does not match the historical struggle toward creating a system wherein the democratic sovereignty of the people was both recognized as legitimate and hopefully made somewhat compatible with good government (it is worth noting that, originally, judicial elections were seen as a way of ensuring judicial independence, by allowing “the people,” rather than legislative, professional, or political elites, to choose who will administer the courts); and 2) that the actual practices of preserving judicial independence from the messy political reality of a people working through their governing structure so as to exercise that sovereignty don’t actually accomplish what people—many of them judges—think they do. (As one scholar put it pithily over 25 years ago, stating calmly what millions who have watched the Roberts court rule on voting rights, presidential immunity, and more over the past 15 years, "The assumption that independent judges use their freedom to decide impartially according to the law is contradicted by the empirical evidence.")

But rather than hauling out my legislative supremacist bona fides and rehearsing my radical small-d democratic recriminations about judicial review and unelected and unaccountable judges, etc., etc., let me take the more reasonable route. If I might have at one time taken a more burn-it-all-down position, age—and the lessons of Donald Trump’s presidency—have made me more sympathetic to finding ways to preserve the accomplishments of bourgeois constitutionalism, even as we need to focus radical critiques more directly to where changes to its legal and socio-economic structures are most needed. In the meantime, I agree that it’s important that we retain at least some belief in the supposedly non-partisan, supposedly apolitical character of the judiciary—what another scholar called the “secular religion of constitutionalism,” the faith that the “rule of law” will continue to work so long as we “believe it works.” The complicated, practical question is, to quote one more legal theorist, “when (if ever) does the cost of enabling judges to act upon their political preferences or attitudes by insulating them from democratic accountability exceed the benefits of protecting them from threats to their tenure that compromise their capacity to adhere to the rule of law?”

Viewed this way, the proposed amendment to be voted on in Kansas this August really comes down to a specific accounting of likely political costs. For me, that means that Kansas’s merit-based system for selecting judges has, simply for a variety of unpredictable historical, political, and sociological reasons—the occasional tendency of Kansans, as an unconscious counter to the overwhelming Republican majorities elected to the state legislature, to elect Democrats to the judicial-appointment-making governorship? the concentration of Kansas lawyers (and thus possible members of the Kansas Supreme Court Nominating Commission, or for that matter actual possible Supreme Court candidates) in a handful of more urban, actually growing Kansas counties? something else?—worked pretty well, insofar as protecting basic liberal rights are concerned. Hence, my appreciation of those who look at the campaign over this proposed amendment, like the makers of the yard signs I mentioned above, and see it in terms of the substantive political possibilities inseparable from it.

When defenders of the current system make it a matter of high principle—judicial impartiality!—I can’t help but want to dive into the relevant theoretical and historical arguments, and ask for evidence why I should believe that the highest court in our state judiciary somehow would be fundamentally broken by obliging it to operate like the state supreme courts of more of more than 20 other states. But if you just make it all about the politics which arguably are unavoidably interwoven into any judicial decision anyway? Then my vote—especially since the language of the amendment gives no guarantee that any hypothetical election system that our Republican legislature may set up would be non-partisan or based on particular districts, both of which are in my opinion good balancing tools when it comes to electing judges—is clear. And my bet is that, remembering 2022, the votes of most other Kansas will be the same.