In my last essay ["July 4 (1986)"] I tried to make the point that the only useful and accurate definition of an American is the strength with which he or she fights to protect and make available to all the freedoms we have gained through the Constitution. But what are those freedoms?
This is not as naive a question as it might appear because many people either don't know what their freedoms are or believe that their freedoms are the same things as their prejudices. Looking at the question in the large view, there are at least two kinds of freedoms, political and cultural.
Politically, our freedoms are enumerated in the Constitution, most dramatically in the amendments (and most forcefully in the original Bill of Rights). These are essentially freedom from certain measures: infringement of speech, the practice of a required religion, unwarranted searches, kangaroo courts. They don't prescribe what people may do; they define what limits the state must follows in dealing with its citizens. If the ultimate source of law in the republic is the people, then the state cannot be allowed to do anything which maims that source, such as depriving groups of the right of free assemblage. A democratic government's end is the creation of a political situation in which and by which people may pursue, as the Declaration says, their life, liberty, and happiness (and, we may as well add because the Founders meant this as well, their property).
Of course, how the government's "end" is reached is open to debate, which is why we have elections. But that end has at least two dimensions to it, one we'll call "local," the other" global". The "local" dimension includes all those laws and rules regulate and govern, more or less, our day-to-day lives. They are "local" because they pertain to specific situations in specific places and times, and they constitute the body of what is called statutory law. But because laws are "local" does not mean that they can be arbitrary or whimsical, even if the event they supposedly regulate occurs nowhere else in the world. They have a higher law to which they must refer, the "global" Constitution.
The Constitution has several dimensions of its own that make up its global character. First, it is written to advise the running of a nation, something larger than the sum of municipalities, townships, and what-not that make up the governmental structures of the nation. Second, the Constitution has embedded in it its own higher law, the standard from which the Constitution cannot deviate and to which everything Constitutional must be referred. That higher law, as described by Edward Corwin in his book, The "Higher Law" Background of American Constitutional Law, is the fact that legislative sovereignty comes from the people. This is the standard by which all acts of the government must be measured. Third, the Constitution has both explicit and implicit aspirations for the society in which it exists. As Sotiros Barber points out in his book On What The Constitution Means, these aspirations for a free and just society transcend the particular time and place of the Constitution's creation, so much so that appeals to "strict construction" and "original intent" can, despite their historical helpfulness, hamper legislation.
This, then, is the political background of our freedoms. In essence they embody the right not to be restricted, and if restrictions are necessary (as they are in any human situation), those restrictions must follow the rule of the sovereignty of the people and conform to the Constitution's aspirations of a free and just society.
But these political freedoms makes ripples in the society in which they exist, creating a culture of freedom that extends far beyond political debates and electoral campaigns. It is this culture we think of most often when we think of our freedoms: the right to wear orange hair, to read any kind of book, to buy the biggest car on the lot. It is also this culture which offends many people because of its seeming licentiousness and obscenity, and which many people would like to expunge, in the name of "cleaning up" America. (Though licentiousness and obscenity are relative words: one can argue that the violence of Sylvester Stallone movies is far more obscene than anything Hugh Hefner ever did).
But these cultural freedoms are part and parcel of the political freedoms, and no one can argue (and still call himself or herself an American) that they both believe in the Constitution and want to take certain books off the library shelves (or certain magazines off a convenience store's racks). The culture abetted by our political freedoms can indeed be abrasive, bizarre, and unruly, but it also can be provocative, brilliant, and thrilling. But "bizarre" can apply equally to orange hair and large cloistered monoliths of glass and steel clogging downtowns of major cities. "Thrilling" can apply equally to new developments in modern dance and a small community organizing to integrate its schools. There are no set definitions or judgments in a culture of freedom since things are usually so rapidly opening and changing. To be sure, this can be disheartening and confusing, but it also provides almost unlimited opportunities for people to pursue whatever it is they believe important to pursue -- which is what the Declaration meant all along.
Many believe quite the opposite of this, that being an American requires having a specified collection of values which are essentially moral prescriptions: families will be formed in certain ways, freedom will be pursued in certain ways, sexual choices will be made in certain ways, money will be obtained in certain ways. But the weakness of this approach should be apparent: to prescribe is to exclude, and the aspirational direction of the Constitution opposes this. Insofar as people who believe in the certain ways enumerated above organize politically to elect candidates, they are Americans. Insofar as they want to buy air time to debate, educate, and propagandize, they are Americans. Insofar as they recognize and respect the validity of opposing arguments, they are Americans. But if because of their beliefs they concretely abrogate or abolish the freedoms of even one person, then they are not Americans. If they believe themselves an elected or a specially chosen people, they are not Americans. If they will not accord rights to others which they claim for themselves, then they are not Americans. It is not clear what they are, but they are not followers of the Constitution.
Freedom is hard work because, in many ways, it goes against the grain of human nature. Humans want security and assurance in an uncertain world. They want to be free from pain and privation. They want some sense of useful connection with the society in which they live. That is why tyrannies are so often attractive to people: for the price of conformity, the tyrant assures stability and freedom from guilt. Freedom, especially a freedom as demanding as the one invoked by the Constitution, takes away the refuge of tyranny. It requires that we be better than we are but will prevent any legislation which tries to force virtue on the populace. It demands that we be well-informed and active, even at the end of a 10-hour workday. It demands that we be citizens of the nation rather than inhabitants of a place. Freedom is a discipline and must be practiced; one is never free by default.
Instead of the term "American," I would prefer "Constitutionalist." "American" has had most of its sense battered out of it by being appropriated by too many bad or questionable causes. "Constitutionalist," despite current debates over original intent and strict construction, states at least somewhat clearly where one does and doesn't stand. Perhaps, then, apple pie can become the dessert that it is, and we can move on to the real food of the day, an appreciation of the liberties we have and (we should also admit) need.
(September 1995)