INTRODUCTION: A CONSTITUTIONAL FAITH I. THE FOUR SONS AND THE INTERGENERATIONAL FESTIVAL OF PASSOVER II. THE WISE SON A. The Keepers of Intergenerational Faith B. The Problem of Formalism C. The Detachment of the Elite III. THE SIMPLE SON A. The Constitution as Symbol B. The People's Constitution IV. THE WICKED SON C. The Problem of Exclusion D. The Problem of Doubt V. THE SON WHO DOES NOT KNOW HOW TO ASK A. The Educational Imperative B. The Precipice of Silence VI. BROWN AS PEDAGOGICAL MOMENT CONCLUSION INTRODUCTION: A CONSTITUTIONAL FAITH (1)
At the same time as it bans the "establishment of religion," (2) America's Constitution brings a new faith into being--a faith in the Constitution itself. The Constitution is not merely a charter of government, ratified by an elite minority in the 1700s and amended at various intervals across the nation's history. The Constitution has come to symbolize something much greater: it has become the sacred text of an American community of faith. (3)
"Veneration" of the Constitution has become a central, even if sometimes challenged, aspect of the American political tradition.... "The flag, the Declaration, the Constitution--these... constitute the holy trinity of what Tocqueville called the American 'civil religion.'" These formal symbols--and the historical experiences they condense--evoke, for some, what the late Alexander Bickel once termed "the secular religion of the American republic," in which "we find our visions of good and evil." (4)
The Constitution is accurately called Higher Law (5)--and not only out of respect for the Supremacy Clause. (6) It is the source to which Americans turn when their countrymen fail them; it is the promise of redemption in a currently imperfect political system. (7) It is a document that binds a pluralistic and often internally incompatible population into a unified people. (8) While some scholars would prefer to characterize this "faith" in the fallible, man-made Constitution and its accoutrements as a form of idolatry, (9) I pass no judgment on this front. For my purposes, I only note that the devotion inherent in both forms of worship is similar. An idolater's god may be false, but he reveres it nonetheless. In characterizing the American Constitution as an article of faith, I mean only to capture its deep appeal to emotion--rather than its surface reliance upon rationality; I mean to emphasize its core, constitutive role in Americans' self-understanding--rather than its detached existence as formal law.
American constitutional faith is an intergenerational enterprise--as it must be, in order to sustain itself over time. The Constitution's invocation by a timeless "We the People" has invited intergenerational slippage in authorship and ownership, (10) and retained the document's symbolic potency even as the founding moment recedes into distant history. This endurance of American faith across the generations is, at some level, surprising. Like all faith-based communities, America faces the challenge of maintaining the vitality and viability of its collective faith over time--not through blunt violence, (11) but through a pedagogy that is responsive to the multiplicity of viewpoints, individual experiences, and ways of understanding reflected in the community. Indeed, America faces added challenges of tremendous demographic diversity and substantial inequality. Under such conditions of disunity, how is constitutional faith sustained both vertically--across generations--and horizontally--across contemporaneous populations with vastly different lived experiences of the Constitution's promise?
In the hopes of beginning to answer this question, I draw a comparison to another faith-based legal system: Judaism. I pick Judaism as my point of comparison not only because it is the faith with which I am most familiar, but also because of the special relationship between law and faith in Judaism that makes it well-suited to constitutional comparison. Neither Judaism nor American constitutionalism is wholly faith-based, nor wholly law-based. Each is a blend--which makes Judaism a particularly useful analog for analyzing constitutional faith, despite the fact that Christianity has borne a more obvious impact upon the structure of the constitutional order. Judaism, in comparison to Christianity, places greater emphasis on action than faith. Faith in God, of course, runs through the entire project of Judaism, but individuals are judged on their conduct, not on their belief. Likewise, American constitutionalism emphasizes obedience more than faith. We must seek out the role of faith in the constitutional order; it is not always readily apparent. To understand a Jewish or a constitutional faith, one must look to the interaction between fidelity to law and faith in law's principles--to the way that laws and principles are supported by a community over time.
Within Judaism, there is a both a conscious attention to the project of intergenerational faith, as well as a recognition of the heterogeneity within a faith community that complicates and informs this project. A striking meditation on these themes is offered by the famous pedagogical tale of the Four Sons, which explores how a father should relate to different types of children in recounting the story of Passover. This Article develops an extended analogy to the Four Sons story. Without accepting the judgmental connotations of their names, this Article considers whom we might identify as the "Four Sons" of the American constitutional faith, and how the pedagogical insights of the Jewish tale transfer to the constitutional context. I explore these archetypes from a distinctly cultural lens--seeking to illuminate, rather than reform, our national commitments, so that we might better understand ourselves. (12)
Through the literary vehicle of the Four Sons, I offer a new theoretical framework for understanding the way in which a complex nation--not bound by any shared God, ethnic history, or intellectual disposition--nonetheless keeps faith with a single document. This framework is at its core relational. Americans interact not only with the text or symbol of the Constitution, but also co-exist within a polity composed of people who interact with the Constitution in markedly dissimilar ways. The success of the constitutional project depends on the ability of these constitutional actors to communicate with one other.
The Article proceeds in six parts. In Part I, I describe the Jewish Four Sons--one wise, one wicked, one simple, and one who does not know how to ask--and contextualize their situation within the self-consciously intergenerational holiday of Passover. I then consider each son in turn. In Part II, I begin with the "wise sons" of the American constitutional community--the legal elites who maintain the vitality of the constitutional faith through a fastidious, intergenerational, yet somewhat detached analysis of the intricacies of law. In Part III, I next turn to the American "simple sons"--the People writ large, who relate to the Constitution through deep yet nontechnical faith in its overarching principles and symbolic significance. Part IV identifies the socalled "wicked sons" of our constitutional community--those who have been historically excluded from its protections and those whose faith is tempered by doubt--and considers the challenges posed by inequity, marginalization, and dissent to the cohesiveness of the constitutional community. Part V discusses the "son who does not know how to ask"--the young and the apathetic--and the call to reach out and engage these members of the constitutional community. Part VI argues that the Four Sons analogy helps us to understand how Brown v. Board of Education--which successfully spoke to each of these four sons--was a kind of "pedagogical moment" that itself became a canonical article of constitutional faith.
THE FOUR SONS AND THE INTERGENERATIONAL FESTIVAL OF PASSOVER
The story of the Four Sons is one of the most famous and oft-debated anecdotes recounted at the Passover seder. In full, the story reads:
With reference to four sons the Torah speaks: one wise, one wicked, one simple and one who does not know to ask.
The wise son--what does he say? "What is the meaning of the testimonies and statutes and ordinances which the Lord our God commanded you?" Therefore explain to him according to the customs of Passover. That after the final taste of the Paschal offering, one may not have dessert.
The wicked one--what does he say? "What is this service of yours?"--'yours,' not his! Because he has excluded himself from the group, he has repudiated the foundation. Therefore set his teeth on edge and say to him: "It is because of what the Lord did for me when I came out of Egypt"--for me, and not for him. If he had been there he would not have been redeemed.
The simple one--what does he say? "What is this?" And you shall say to him: "By strength of hand the Lord brought us out of Egypt, from the house of bondage."
As for him who does not know to ask--you begin for him. It is said, "You shall tell your son in that day, saying, 'It is because of what the Lord did for me when I came out of Egypt'." (13)
The story of the Four sons has been interpreted to mean many things by scholars, rabbis, and seder participants across the ages. The story itself is a rabbinical gloss on biblical text.
Four biblical verses (Deuteronomy 6:20; Exodus 12:26, 13:14, 13:8) merely mention children asking or being told about the Exodus. From these disparate verses the Rabbis created a framework for personalized pedagogic instruction. They predicated dissimilar dispositions and varying degrees of maturity, and counseled that the story of the Exodus should be geared to the attitude and age of the questioner. "The parent should teach each child on the level of the child's understanding." (14) But who are these Four Sons, and what do we learn from the rabbis' pedagogical paradigm? Perhaps most...