To the rest of the world, the United States presents a puzzle. Having been the model of modernity -the “new world”- it now appears anachronistic. Long seen as the bastion of the rule of law, it now seems lawless. Once a leader in the move toward globalization, it now looks unilateralist.
The turn in U.S. policy has been accentuated by the current administration, which, even apart from its War on Terror, has expressed skepticism toward important aspects of the post-1989 project of globalization: examples include the rejection of the Kyoto Accords, a relentless attack on the International Criminal Court, an effort to undermine the United Nations. And then, after 9/11, the unilateral recourse to force, the use of degradation and torture against those labeled unlawful combatants, and the creation of that black hole of legality, Guantanamo. It would be a mistake, however, to think that these actions represent only a temporary deviation from the inevitable path of development of a global order of law -a deviation brought about by the miscarriage of the American electoral process in 2000. The Clinton administration could not seriously contemplate Senate ratification of the Treaty of Rome or of the Kyoto Accords. Americans have long been unilateralists in their use of force, rejecting the subordination of their own political processes to transnational procedures and institutions. The Reagan administration conducted a proxy war in Latin America and walked away from the International Court of Justice when that Court accepted jurisdiction over the issue. The United Nations, despite the American possession of the veto in the Security Council, has always been treated with skepticism by many, if not most, Americans.
On human rights, the story is no different. There has never been a jurisprudence of international human rights in American courts. Even if the Democrats take the presidency in two years, human rights will remain a disfavored legal discourse. It took 40 years for the US to ratify the Genocide Convention and over 25 years to ratify the International Covenant on Civil and Political Rights. The US began to ratify human rights conventions only when it discovered the power of attaching reservations and understandings to its instruments of ratification. These reservations are intended to deny the treaties any domestic legal effect. The US commitment to international human rights law goes exactly this far: we agree to abide by the conventions just to the extent that they require that which is already required by domestic law. The idea that the international law of human rights can change the nature of the domestic order of rights is literally outside of the American legal imagination.
Nor are American actions over the last 5 years simply an overwrought reaction to the attacks of September 11. Times of national crisis show us the deep structure of political belief -the fundamentals to which leaders return and to which citizens respond. Indeed, the tension between law and war that has characterized so much of the American political debate over the last five years shows something deeply characteristic. Only when we understand the relationship of law to violence in the American political imagination can we begin to see the problem that human rights law poses for the United States.
In summary form, my argument will be that while human rights law imagines a world without violence, in the United States war, no less than law, appears as an expression of popular sovereignty. To grasp what it is at stake, we must understand the sacred character of the popular sovereign in the American political imagination, and the way in which the sacred supports a practice of sacrifice.
Human rights law expresses the substantive, moral vision behind the contemporary project of globalization. The United States has never been committed to central elements of that project. This resistance to a global perspective is the phenomenon of American Exceptionalism. The expression itself is likely to be offensive to others, suggesting a self-privileging that subordinates the interests of other nations. Indeed, American Exceptionalism can hardly find its ground in justice, when its whole point is to reject a neutral point of view. But this is a problem only if one thinks that the fundamental measure of a political order must be a standard of justice among states. American Exceptionalism is not about justice, but about the sacred. The sacred does not hold itself accountable to a measure of justice, any more than there is a just measure of love.
When Abraham is commanded to sacrifice Isaac, the injustice -and indeed irrationality- of the command is itself a measure of his faith. When we sacrifice for those we love, we do not do so because the demand is just. To reduce sacrifice to justice is entirely to miss the phenomenon. One way to understand the deep political problem in which the American administration finds itself with respect to Iraq is to see that it was forced to move from a discourse of sacrifice to a discourse of justice. Only in the last few weeks has the President tried again to return to the rhetoric of sacrifice. Americans would sacrifice for the nation, if they believed that Iraq posed a threat to sovereign existence. They will not easily assent to the killing of their youth for the sake of bringing justice to Iraq.
America is not just a political project; it is a political-theological project. It may be the only truly political-theological project that remains in the West. Nevertheless, it is hardly alone in the world. Arguably, the 21st century is heading toward conflict between this enduring political-theological project and the reemerging political-theological project that is radical Islam. From a broader perspective, it may not be American faith, but the secularization of Europe that is exceptional. In a political-theological conflict, appeals to an international law of human rights are not likely to offer an alternative to conflict. The most dangerous political disagreements are not about the demands of reason, but about the character of the sacred as it shows itself in political life.
That religion is an important aspect of life in America is hardly a startling proposition. America had its birth in communities of Christian exiles. It is not an accident that the American Revolution is framed by the first and second Great Awakenings. Christian movements were prime movers in 19th and early 20th century politics, from abolition to prohibition to populism. To describe America as a “Christian nation” was long a commonplace, accepted even by the Supreme Court. That language is no longer explicitly used, but the Bush administration’s reliance on “faith based” initiatives is not all that far from the earlier mobilized Christian community. No other country in the West so easily accepts the deep penetration of religious belief into its political rhetoric and practices -for example, the constant invocation of God’s blessing. It was during the Clinton administration that the seven top electoral positions were all filled by born again Christians belonging to the Southern Baptist Convention. When Samuel Huntington recently described the “American Creed” -that set of beliefs that characterize the ideological core of American political life- he presented a list that bears its Protestant origins quite literally on its face. His list included ideas of individualism, equality, a right to freedom of religion and opinion, opposition to hierarchy, and a commitment to moralistic reform efforts. He concludes «The American Creed... is Protestantism without God, the secular credo of the “nation with the soul of a church”». I'm not so sure of the “without God” part.
Even the least religious regions of America remain far more religious than any place in Europe. My own Connecticut, squarely within secular New England, has a weekly Church attendance rate of 37 percent. These numbers are actually rising in most areas. The modern, denominational story in America is that of the decline of established, traditional groups and the rise of Evangelicals and Fundamentalists. This phenomenon is most familiar among Protestants -the Southern Baptist Convention is by far the largest and most powerful denomination- but it is paralleled by changes within the Catholic and Jewish communities. Overwhelming majorities of Americans affirm the literal truth of the Bible.
Surveys of American religious practices and beliefs always astound the modern cosmopolitan. They serve as a stark warning to take care whenever one speaks of “we,” as in “what we believe” today. Still, these numbers can lead us in the wrong direction if we react by thinking that Christian influence is simply that of a particularly powerful interest group competing with other groups for government recognition and largess. This may be true, but it misses the most important point about the role of Christianity in American political life.
That point has little to do with the large number of Americans who happen to be Christians, but with what I will call “the Christian imagination”. This provides the deep structure of American political belief and thus the origins of American Exceptionalism. We, meaning the entire multiethnic and multicultural community of Americans, are all deeply shaped by the Christian imagination. American political practice is not just a source of benefits, anymore than a church is simply a source of benefits. Before there is any issue of material well-being, before there are questions of justice and injustice, there is the presence of meaning realized in and through faith. Indeed, Americans may have a poorly developed social-welfare state because to them politics is first of all a project of transcendent meaning. To take up the question of the shape of the American political imagination, we have to shift our own form of discourse, from political theory to cultural anthropology -if not directly to theology.
Modern political theory begins from the idea of contract, in particular the social contract. There are multiple accounts of the social contract, but let me highlight a few common threads. First, the contract model emphasizes that political authority is not natural; rather, it is a product of human artifice. Accordingly, it can be made well or poorly. Its problems are always subject to repair, and reason’s task is to offer intelligent blueprints for enlightened statecraft. Second, the social contract is written from the perspective of the author. He asks what the terms of the political order are to which he, as an autonomous agent, would rationally agree. These two points give us the substantive content of human rights law, on the one hand, and norms of transparency, accountability, and procedural fairness on the other. Third, the individual has a certain priority -metaphysical and normative- over the state. Since the authority of the state is only legitimate to the extent that it meets a standard of individual authorization -i.e., the terms of the contract- governments that act outside of that authorization have no claim upon their citizens. They are illegitimate, and, accordingly, subject to revolution from within or humanitarian intervention from without.
The normative discourse of human rights is only the latest iteration of social contract theory. That theoretical tradition did play an important role in the revolutionary origins of America -most famously, in the appeal of the Declaration of Independence to “self-evident” truths. Speaking to the rest of the world, the Declaration describes Britain as violating the limits on authority, which arise from the consent of the governed. Yet, the power of theory is exhausted even before the end of the Declaration is reached. For the claim of the Declaration to be a performative act of the people arises from its concluding pledge, not from social contract theory. That conclusion reads as follows: «for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred/honor». This is the construction of a new sovereign, not a return to a prepolitical state of nature. Sovereign presence is not a matter of a theory of justice, but of sacrifice.
The American political imagination begins with sacrifice. The community arises out of and is sustained by sacrifice, not by a social contract. 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 what he called a "new generation" of Americans -a generation that had already fought two wars and was entering deep into the Cold War with its reciprocal threats of mutual assured destruction. One hundred years earlier, Lincoln had set out exactly the same proposition. The Gettysburg Address, the ground norm of all American political rhetoric, invokes the theme of national resurrection through citizen sacrifice: «from these honored dead... this nation, under God, shall have a new birth of freedom». Already as a young man, Lincoln had identified the American political-theological project, when he called for a political religion of «reverence for the constitution and the laws». This reverence was to step into the fading place of the scarred body of the revolutionary-war soldier who literally carried the stigmata of his faith. Their bodies, he said, are a «history bearing the indubitable testimonies of the [Revolution's] own authenticity in the limbs mangled, in the scars of wounds received...» As President, Lincoln becomes the iconic figure of Christ-like sacrifice.
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, they are seen through the lens of citizen sacrifice. Their deaths are the latest instance of the relationship that every citizen bears to the popular sovereign. That sovereign can always demand a life. Sacred violence, not individual well being, bears the meaning of this state. A politics of well-being alone is always in danger of being labeled the pursuit of “special interests”. This is quite literally the political form of temptation, which stands opposed to the demand to sacrifice for the nation. Our successful consumer culture always appears to our political faith as tainted by sin.
Our post 9/11 politics has been that of life through death. Once again, and quite literally, through «these honored dead, this nation, under God, shall have a new birth of freedom». As in the Civil War, terrible violence is accomplished in the name of this vision of national rebirth. This time, the violence is directed outward. But why not? For America brings the “good news” that through sacrifice comes freedom. This is the message that the Bush administration carried forward with great popular support. It is the same set of meanings, however, that accounts for President Bush's dramatic decline in support as he failed to sustain a politics of sacrifice.
A nation founded in sacrifice is one that is willing to injure and kill. This is a familiar paradox: for the sake of love, we are quite willing to destroy. The political-theological project differs from the theological at exactly this point: both may locate meaning in sacrifice, but political sacrifice is always imagined as warfare. In politics, killing and being killed form a linked pair. The Christian idea of sacrifice breaks that link and thereby represents the end of the political. It takes up sacrifice, but declines the license to kill that attaches to a willingness to be killed. Even here, however, we should be careful not to make too much of the distinction. The Church did become a political project engaged in its own forms of reciprocal sacrifice. Conversely, we do find moments in which a sacrificial politics breaks free of reciprocal violence. This played an extremely important part in the American civil rights movement of the 1960's -led by yet another Christian politician, Martin Luther King, Jr. The refusal to allow sacrifice to become a license for violence reflected a very Christian idea of membership in a community. The Civil Rights Movement understood that only by taking up the burden of sacrifice does one realize the truth of one’s nature as an American citizen. The movement struggled against the appearance of a confrontation between friends and enemies. Without enemies, there could be sacrifice but not killing. If one is committed to the idea that there can never be any enemies, then one is committed to the apolitical idea of a single, global community, which is the universal church.
America cannot conceive of itself as a colonizing power, for it understands its projection of power as simply 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 was a constant presence. America, we should remember, never disarmed after the Cold War. We have lived our ordinary lives in the shadow of the demand for sacrifice. Political identity could always displace any other conception of the self, and the political was quite literally a matter of life and death.
Today’s war on terror is imagined within this frame of total war. The terrorist pursues a low-tech version of total war, bringing the threat of destruction directly into the domestic order. The new battlefield is imagined as literally anywhere and thus everywhere. The result is that every citizen can be called upon to sacrifice. And if to sacrifice, then to kill. The paradigmatic moment in this new national endeavor of sacrifice for rebirth is not so much the destruction of the World Trade Towers, but the events that same day on United Flight 93, which was brought down by its own passengers in a sacrificial act of killing and being killed. In a war on terror, every citizen can be conscripted at every moment. The combatants in the battle against terror are as likely to be firemen and airline pilots -our “first responders”- as soldiers. Conscription has moved beyond the capacity of law to regulate or constrain. Instead, it characterizes a pre-legal and a post-legal condition of political sacrifice. It is the politics of sovereignty, not law.
The American sacrificial tradition is often seen through the lens of republican political theory: citizen soldiers displaying the martial 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 Schmitt’s concept of the exception. In America, however, the exception is inflected through an idea of the popular sovereign, rather than Schmitt’s idea of the sovereign as he who decides.
Our politics of sacrifice is one of participation in the mystical corpus that is the popular sovereign. At stake are not fame and personal immortality, but a giving up of the self and a living in and through the transcendent being that is the popular sovereign. The Revolution killed the king, but it hardly did away with the mystery of sovereign existence. Popular sovereignty in the United States is distinctly not the liberal conception of self-government through elections that express the majority will. Popular sovereignty is substantive, not procedural. The popular sovereign is a transtemporal, 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 not a reasonable idea at all, and it will never be adequately accounted for by theory. Rather, it is the reified object of an experience of faith sustained through the sacrificial imagination. A citizenry that no longer imagines a politics of sacrifice will no longer be in thrall to the idea of popular sovereignty. Instead, it will speak of a post-sovereignty politics of the rule of law as the rule of reason.
As with any appearance of the sacred, there is a convergence of the is and the ought in the popular sovereign. America is always striving to be that which it already is -to realize the truth of its being, which is transparency to the popular sovereign. The history of the nation is the narrative of the presence of the popular sovereign and, in its absence, of a life that is both a falling away and a striving to hold on to that meaning. Whenever the sovereign appears, it is miraculous, for it exists outside of the ordinary course and concerns of everyday life. There is a suspension of the rules because the popular sovereign is always wholly free-meaning wholly unbound. Accordingly, its appearance is marked by violent chaos. Order returns only as the nation takes up the burden of interpreting the remnants of sovereignty that are left behind. Those sacred relics are the higher law of American political life. The rule of law in American life is neither the positive law of a legislative body nor the working out of a reasonable order by the common law; it is constitutionalism founded in the mystical presence of the popular sovereign. It is the realization of Lincoln’s early plea for a religion of law. Through law, we literally make contact with the popular sovereign.
Access to the American popular sovereign takes two forms: sacrifice and ritual, which we experience as war and law. Both gain their meaning by making present the single source of all meaning: the popular sovereign. In sacrifice, the sovereign is experienced as present in an unmediated form; in ritual, that presence is mediated. In neither case, however, is there any source of meaning outside of the sovereign. We may hope that our wars are for just ends and that our law creates a just order, but Americans are bound to the popular sovereign both before and beyond these questions of justice. One way to grasp this bond is to compare it to the family: we hope that our familial relationships are just, but we are bound even when we judge them unjust. If they become too unjust, we may abandon our faith in family or state, but not without regret.
In speaking of political sacrifice, I am not appealing to metaphor. Sacrifice is a giving up of a set of finite concerns -located immediately in the well-being of the body- through the act of making present a transcendent value. At stake is the presence of the sacred, which makes a total claim upon the body. The sacrificial claim is total because it is wholly incommensurate with the finite. Sacrificed, the person becomes a site of sacred presence. This does not mean that Americans operate with a death wish, although the romance of sacrifice can become a powerful force at times. It does mean that the possibility of what we call “the ultimate sacrifice” always exists at the borders of the political imagination. Because a life is not just one thing, but many different meanings and interests, most of us hope that we are never tested by this possibility. At the same time, however, we cannot help but wonder whether we will pass that test if we find ourselves on the wrong airplane or in the wrong building.
The normative experience of sacrifice is that of a surplusage of meaning that destroys the finite by making present the infinite. This is the lived meaning of the state as a political-theological project. National existence is not just one end among others; it is that for which everything else can be destroyed, and that which has a claim upon everything else. We pledge our lives, our property and our honor.
The American nation wants only to be itself without end, for the mystical corpus is already complete. Successive immigrant groups have taken ownership of the national narrative by taking up this project of self-sacrifice. Only then do they become a part of the popular sovereign. Citizenship in the United States has long turned upon a perceived capacity to bear the material presence of the popular sovereign. Groups that have been perceived as unable to bear that burden have never been welcomed: first blacks, but later Asians and Catholics. Again, this is not a calculation of justice; it is indeed a model of injustice.
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 character of the act to the victim. Outsiders can see only killing and being killed. Europeans did not see the sacred in Aztec rituals of sacrifice; they are not much better at understanding American sacrificial practices. Americans, of course, suffer the same problems of perception. They do not see terrorists as sacrificing for their faith; rather, they label their suicidal acts “cowardly.”
Were the sovereign to show itself only in the form of sacrifice, then the nation would be in an eschatological moment. Something like this is true of the threat of a thermonuclear exchange: eschatology enters politics. Access to the popular sovereign, however, is also mediated through the ritual 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 popular sovereign. That law is the will of the sovereign is an old idea in jurisprudence. It was, however, traditionally associated with command and coercion. In America, the identity of law and the sovereign will is experienced as a literal truth: the authority of the judge derives directly from his or her claim to articulate the meaning of texts that are themselves “relics” of popular sovereignty. This is not a matter of coercion, but of access to the sacred.
In the last twenty years, there has been a remarkable convergence among Western countries with respect not just to a substantive regime of human rights, but also to a jurisprudential methodology. The role of the judge is not to develop new rights -that work has been a project of political and moral science, which is already more or less complete. The judicial role is to continue the deliberative process of reason in the context of particular applications. He or she considers how best to actualize the right in a particular context in which other interests, and even other rights, must be given their due. The judge is to reach an “all things considered” judgment of what is reasonable. This methodology is sometimes called “proportionality review” and sometimes “balancing.” It is thought to have the objectivity of scientific inquiry. It is replicable, in the sense that similar resolutions should be reached under similar circumstances. Thus, there is nothing disturbing about national judges looking to foreign courts for guidance. Nor is it disturbing to allow transnational courts to review domestic decisions. Judges are experts, and rights are the domain of their expertise. Interaction among these multiple decision-makers is the path of progress, just as in other disciplines.
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. The 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, it is not seen as a model of law at all, but of judicial illegitimacy in three dimensions. First, the American rule of law is not the product of scientific expertise. Not since the early 1900s has anyone seriously spoken of a “science” of law in the United States. Second, judges enjoy no deference as experts, for there is no such thing as “political expertise” and our law must always be held accountable to our politics. Third, if there is neither legal science nor political expertise, then a judicial claim to base a decision on 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 in order to discern the progressive path of the development of rights? They are bound to a text. Their authority comes not from the application of reason and certainly not from the appeal to an “all things considered” judgment of reasonableness. All of our debates over fundamental rights are debates over the meaning of a text. The debates in constitutional theory are hermeneutical, asking what is the appropriate interpretive attitude to bring to that text.
To the uninitiated, our textualism looks very odd. Why, they ask, do we 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 every liberal theory of politics, which understands political order as the progressive realization of a continuous project of reform under the guidance of reason. Where is the value of progress in a legal culture that fetishizes an archaic text?
My description of the puzzle 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 science. Our 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 understood as a text that they authored. Rather, the authority of the constitutional text derives from its appearance as the product of an act of popular sovereignty. This text is a sacred relic; it is the evidence and product of sovereign presence. We are enthralled by the text precisely because we see through it to the popular sovereign. Like the Protestant Bible, in the ordinary course of our lives, the text is the only authentic evidence we have of sacred presence.
The judicial role is to bind our ordinary lives to the sacred, through law. Their privileged position comes from the belief that our lives can have no source of public meaning apart from that relationship. 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. Thus, there is no aspect of American life to which we cannot address the question «Is it constitutional?» We are bound by the judge’s answer because of a belief that through that voice we hear the now-retreated popular sovereign. If we fail to make contact with the popular sovereign, we will not understand why we should listen at all. Conversely, if we make contact directly with the popular sovereign, we are in an exceptional moment in which the judge has no special authority.
Elsewhere in the West, war and law are seen as antithetical forms of political organization. Indeed, the late 20th century project of globalization might be described as one of displacing war by law: where war was, law shall be. The great lesson of the 20th century was that war expresses the dark side of humanity -passion and self-interest- while law represents the light of reason. An order of law is one in which the human rights of all are recognized, while an order of war begins from a fundamental distinction of friends from enemies. But in the American political imagination, law and war are the twin forms by which the popular sovereign sustains itself in and through history. Americans continue to live in a sacred space in which the infinite announces its presence by the sacrificial 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 cannot exactly export our law because it is quite literally ours. But neither can we believe that other states do not have an equal capacity for an authentic act of self-creation through popular sovereignty. America is simultaneously conservative and revolutionary.
Only when we grasp the structure of the American political imagination can we understand the problem posed to it by an international law of human rights. American political identity is not a matter of participation in an order of law that protects life and property. Rather, to be an American is to be as a part of the mystical corpus that is the sovereign body. In this political understanding, human rights as the expression of a global order of law can get no foothold, for this understanding is founded in the national will, not universal reason. Indeed, speaking for a minute as a lawyer, I can say that the reliance on a claim of human rights in a legal argument is usually a sign that one’s position is completely untenable. The discourse of human rights -not civil rights- is used when there is literally nothing else to say.
Of course, I have drawn my distinctions sharply -too sharply- in order to emphasize the different world-views at stake and to try to pierce some of the misapprehensions of American political practice. Foreign views of the United States tend to oscillate between a focus on Hollywood and on the Pentagon. On the one hand, America is a land of unending individual consumption driven by the entertainment industry. On the other hand, it is a hyperpower, projecting military threats around the world for the protection of its national interests in markets and raw materials. 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. Similarly, American political faith does not eliminate a culture of reason. American universities and much of the American population remain deeply committed to science and reason -even the multiple social sciences of modern governance. It is a widespread and wholly valid criticism of the present administration that it has allowed its religious faith to get in the way of the pursuit of science both in research and education.
Neither in science, nor in interest, however, will we find the fundamental structure of the American political imagination. To understand this, we have to turn from reason and interest to the will as it has developed a unique cultural form in our religious traditions. One way to understand this is to distinguish between God’s speech and what it is that He says. If we think that all that matters is the content of that speech, then we will do away with any thought of God’s sovereignty. Understanding has no need of faith. But religious faith constitutes a relationship between the listener and the speaker. The same structure is present in American political culture. The foundation or the starting point is faith in the popular sovereign. That sovereign miraculously appeared; it spoke the nation into existence. Only after we affirm that faith do we ask what it is that the sovereign spoke: «What was the content of its speech?» When we ask that question, we move from sacrifice to law. To think that we can do away with the speaker and stick only to the content of the speech is to misunderstand the unity of a political project that spans law and war, sacrifice and ritual. It is to give up a project of the will for one of reason.
Of course, the popular sovereign must say something, and to what can it turn except the best political and moral theory of the day? That the American popular sovereign first spoke at a time of classic, liberal political theory is essential to the hermeneutic enterprise of interpreting the law created by the popular sovereign. But to believe that this is all that is involved is to make the Deist’s mistake of thinking that since God created a world of Newtonian order, we no longer have any need of God. This is the same mistake as thinking that because I want those I love to act justly, I can order my relationships to them without reference to love.
Here, finally, I am at my most essential point and my conclusion. The United States, I have argued, is a political theological project in which the critical terms are the popular sovereign as mystical corpus, sacrifice as the act of participation in that corpus, and law as ritual. 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. It is a bounded set of meanings that are of transcendent value and for the sake of which its members are prepared to give everything.
As with religious communities, the power of love is both promise and threat. Every other source of attachment and meaning can come to appear as sin, as a fall away from that which is the source of all value. Every relationship of love expects to be tested in this way. 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 the body, and not just from the foreign threat of violence, but also from the rise of a global demand for justice. Reason no less than interest poses a threat to the will. It is not surprising to find our government explicitly linking terrorism and international courts as sources of threat.
American exceptionalism is the exceptionalism that constitutes every community of love. Arguments against this exceptionalism that appeal to reason and justice -the language of human rights- are not likely to succeed. These are incommensurate normative orders. We may hope that love will lead us to justice, but we don’t measure love by justice. A loved one may make unjust demands upon us, but we do not abandon our love for that reason. Love can be full of pain; it is always full of sacrifice. It may require that we be unjust to others even as we suffer injustice ourselves.
I cannot tell anyone whether they should abandon justice for love or love for justice. This is what it means to say that love and justice are incommensurable. I can say that love, like every form of faith, is always tenuous. When faith fails, we may find that which we did for love seems to us now only monstrous injustice. This makes politics dangerous: what seemed to be sacrifice can suddenly appear to be murder. The modern Western idea of the sovereign nation-state turned out to be extremely dangerous for populations at home and abroad. It has been dangerous in just the way that Christianity has been dangerous: sacred violence is no less a killing and being killed. Yet, justice without love is not likely to strike many people as adequate, for we seek meanings in our lives that promise to transcend, not just to order, our finite lives.
The perspective of human rights is always located outside of this erotic community. It speaks to individuals as autonomous, moral agents whose relationship to the state is subject to the scrutiny of reason. It is resolutely set against the politics of sacrifice and the political claim of transcendence. It represents the end of the political-theological project that was the modern nation-state. If the United States is exceptional, it is because it remains bound to an earlier ideal of the nation-state as the autonomous product of its own self-creation. While the rest of the world may be turning away from the classic idea of sovereignty, it remains a vibrant idea in the American political imagination.
Whether the age of the political-theological has passed or whether it is simply reconstituting itself in new, and perhaps even more violent forms, is a question not of theory, but of fact. Predicting the demise of the United States as a political-theological project is, in my view, as likely to be wrong as predicting the end of religious faith with the rise of the Enlightenment.