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The Impact of Transformations in National Cultural Identity upon Competing Constitutional Narratives in the United States of America

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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 narrative may gain ground and even ultimately prevail, at least for a time, and achieve Supreme Court “endorsement” for its claims.

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Notes

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

  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].

  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.’

  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.

  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.

  10. 83 US (16 Wall.) 36 (1873).

  11. 109 US 3 (1883).

  12. 163 US 537 (1896).

  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].

  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.”

  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).

  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).

  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).

  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).

  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).

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

    Frederick Lewis

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Lewis, F. The Impact of Transformations in National Cultural Identity upon Competing Constitutional Narratives in the United States of America. Int J Semiot Law 25, 177–195 (2012). https://doi.org/10.1007/s11196-011-9220-2

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