Domestic Tranquility and the Warriors of Peace
The Preamble to the U.S. Constitution says “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
I want to talk briefly about the constitutional ideal of “domestic tranquility.”
As Supreme Court Justice Felix Frankfurter wrote more than 70 years ago, we law professors, as teachers, are “the priests of our democracy.” We are also its drill sergeants, because we train warriors of peace to do battle — legal battle — in nonviolent ways.
I conceive of democracy as a pressure relief valve. Social pressure builds when people feel unheard and unfree. Our constitutional system is supposed to allow people to be heard and to protect their freedom, thus easing social pressure.
Social pressure begins with frustration. That frustration is dangerous because it leads to a loss of faith in the system. A loss of faith in the system means people no longer believe that playing by the rules will ever satisfy their needs or achieve their goals. If playing by the rules fails to satisfy their needs or achieve their goals, people will stop playing by the rules.
Ideally, the rules in our democratic system allow us to resolve disputes, satisfy needs, and achieve goals through peaceful dialogue and compromise, and without violence. If those rules break down, people will turn to violence to resolve their disputes, satisfy their needs, and achieve their goals. We know this is true because our Constitution is a product of such violence.
A recurring theme in the writing of the Framers of our Constitution is a desire to avoid future revolt and to preserve a union through compromise and consent of the governed. That initial compromise was of course full of injustice, particularly in the form of slavery.
But, it seems to me, the Framers were trying to prevent another revolution of the very sort that produced our country in the first place. By building a system more responsive to popular will than hereditary monarchy, they tried to stave off, as Madison called it, the “mischiefs of faction” that might abuse the democratic process and employ alternative means to achieve its goals.
In other words, tyranny and violence.
We’re on a dangerous precipice now, because the threat of political violence — widespread, open warfare type violence — is growing.
Our capitalistic democracy pacifies its subjects through material comfort and responsive government. But it loses this pacifying effect if the subjects of its rule lose material comfort and the government stops being responsive.
Right now, the pacifying effects of consumer capitalism are waning. Young people own far less property than earlier generations. They are having fewer children. They are deeper in debt. They have less ability to pay that debt and to acquire property because their wages have not grown nearly as much as the cost of living. Homes are unaffordable. Education and health care are financially crushing.
They still enjoy pacifying toys like the internet, phones, video games, and sports, but those are all now succumbing to the rent-seeking impulses of giant monopolies. As tech and society critic Cory Doctorow frequently writes, we are losing the ability to own anything. Everything requires a subscription plan, from music to appliances and maybe someday to the heated seats of your new BMW. The pacifying features of a comfortable capitalistic society are increasingly scarce for more and more of us.
Meanwhile, the pacifying features of our democratic system are collapsing. Gerrymandering and nearly unlimited political spending make the end results of elections seem increasingly predetermined. Predetermined elections, or even just the perception that elections are predetermined, stifle voter participation and frustrate voters.
In the legal world, predetermined judicial decisions are no different. When litigants no longer feel that judges are responsive to reason and precedent, faith in the courts dissolves and frustration builds. Call it a crisis of legitimacy if you will.
That frustration manifests itself as violence, because the peaceful methods of resolving conflict — elections and litigation — no longer seem effective or worthwhile.
We saw a form of this on January 6, 2021. That doesn’t mean that particular frustration or violence was “right,” but any population that believes the democratic process has been hijacked and the popular will thwarted will cause great damage and may, if successful, replace the dying democracy with tyranny that can only survive through state violence and control.
I personally fear that the number of people mad at an unresponsive system will grow so large that the entire system will collapse into another civil war — perhaps with less clearly defined warring sides, but war nonetheless.
Our Constitution, in theory, offers a promise of “domestic tranquility” that can be achieved if the system it creates is maximally responsive to majority will while protecting the rights of minority interests. A system that ensures all are treated equally before the law, and that empowers the government to provide for the general welfare in creative and responsive ways. A system where disputes and grievances can be resolved peacefully.
As lawyers and law professors, we must train new generations of peaceful warriors to do battle without violence. And we must inspire others to imagine a world where “domestic tranquility” is possible, and that a constitutional system can be crafted and maintained to preserve it. As Supreme Court Justice Louis Brandeis once wrote, “if we would guide by the light of reason, we must let our minds be bold!”
Otherwise we have no choice but to prepare for another cycle of mass violence, like our revolution or our civil war, which, our history suggests, will be inevitable.
[This is a write-up of comments I gave as a panel member for the Constitution Day event held on September 19, 2023 at the University of Louisville Brandeis School of Law. The topic for the event was “What is a Fully Functioning Democracy?” with a keynote by Frederick Lawrence and with comments by Professor Cedric Powell, Professor Enid Trucios-Haynes, University Counsel Angela Curry, and me.]
