The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Some recent posts reminded me of a National Review Online article of mine from 2007, which I thought I'd put up again here.]
People talk a lot about "multiculturalism," whether to praise it or condemn it. But standing alone, the concept is too vague to be supported or opposed. In this respect, it's much like certain other concepts, such as "equality." Do you support equality or oppose it? Well, it depends on what exactly is meant by "equality," doesn't it?
"Multiculturalism" is similar. Some things that are reasonably labeled "multiculturalism" are mostly bad, and others are mostly good. We can all imagine bad versions of multiculturalism – ones that dramatically undermine the social cohesion necessary to maintain order or defend the nation in war; ones in which many people in a modern economy speak mutually unintelligible languages; ones in which members of some subcultures feel comfortable violently attacking people, whether of their own culture or of others; and so on. But America is also founded on its own sort of multiculturalism, which has usually (though not always) stood us in good stead. Here are four constitutional manifestations of this multiculturalism.
1. Federalism: The premise of federalism is precisely that multiple states, which the Framers envisioned as often having substantial differences in culture, should be able to retain their cultures, including the legal rules that flow from those cultures. (Within states, home rule by localities has had a similar, though lesser, mission.)
Of course, the Civil War shows the potential cost of this multiculturalism, though I suspect that the Constitution's toleration of slavery in some states but not others was inevitable given the situation at the time of the Founding. And the post-Civil War amendments were aimed at homogenizing the nation to some extent, with regard to slavery, voting rights, and other individual rights.
But despite this, even after the Civil War the nation remained committed to a good deal of federalism, aimed at letting the people of each state maintain their own legal and social cultures, which might differ from those in other states. And pro-federalism advocates today, including those who often deride multiculturalism in general terms, are committed to maintaining the rights of states to maintain their own legal regimes, which reflect differing cultural values.
2. Religious freedom: The Constitution and the Bill of Rights – especially the Free Exercise Clause – contemplate a country with a considerable range of religious views and even religious cultures. Many of the Founding-era American denominations were distinct cultural groups, such as the Quakers, and some of them lived in relatively homogeneous enclaves.
American religious freedom has always included religious tolerance – the willingness to let religious groups live free of deliberate persecution. But it has also always included some degree of religious accommodation, which is to say exemption of religious observers from certain kinds of generally applicable laws. The Constitution itself embodies one such accommodation, in the provisions stating that a person taking the oath of office may affirm instead of swearing; that was intended to allow Quakers and other groups to participate in civic life without giving up their religion. Other early accommodations included exemptions from the military draft, exemptions of the clergy from the duty to testify, exemptions of Jews in Rhode Island from laws banning uncle-niece marriages, and more.
3. Free speech and economic liberty: The Free Speech Clause, coupled with protection for private property and – more broadly – freedom of movement and action, likewise facilitates multiculturalism and especially the preservation of immigrant cultures. When people come to America, they can live near others from the old country, speak their language with one another, celebrate their old festivals, and start up businesses that cater to their fellow immigrants.
They can also organize political movements together with their fellow immigrants, lobbying for exemptions from laws that they see as burdensome, or aiming to change American foreign policy with regard to the old country (or its enemies). Like it or not, this is a necessary consequence of our constitutional structure.
A legal system that was more dictatorial, more majoritarian, and less free-market could more effectively suppress such immigrant cultures. But our system can't do so without undermining everyone's free-speech rights, political-participation rights, and economic rights.
4. Parental rights: Parental rights, which have been expressly recognized by the Supreme Court since the 1920s, further promote multiculturalism, by giving parents broad power to convey their culture to their children. Indeed, the Court's first parental-rights cases struck down restrictions on child rearing that were aimed at suppressing what some saw as excessive multiculturalism. Meyer v. Nebraska (1923) struck down a law that banned private schools from teaching children a foreign language – a law largely prompted by a sense that such teaching would undermine the common American culture. Pierce v. Society of Sisters (1925) struck down a ban on all private schooling, a ban largely motivated by its backers' view that Catholicism is incompatible with majority American culture. Parental rights are not absolute, but they remain powerful protectors for dissenting cultures, whether they are immigrant cultures, religious-separatist cultures (such as the Amish), or religious-conservative cultures that reject the secularism of the public schools.
These aren't just multiculturalist values. They are long-standing, deeply rooted American values. And they have been (or at least could be) seen as serving at least four different goals.
1. Multiculturalism as increasing minority members' happiness: Religious tolerance – coupled with federalism and localism – has often let people live, be free, and pursue happiness in America without having to sacrifice or hide their belief systems.
2. Multiculturalism as an engine of the search for truth: Both federalism and religious diversity often produce a wide range of options – ideological and governmental – that then compete with one another. In federalism, this is known as the "states as laboratories of democracy" model. For religious and other ideologies, this best fits the metaphor of the "marketplace of ideas."
3. Multiculturalism as a source of valuable citizens: The tolerance for a wide range of religious belief systems has drawn more people to this nation, and has avoided forcing people into exile. Recall the old joke, "who was the most successful German general of World War II?," with the answer being "Eisenhower." More seriously, America's development of the atomic bomb during World War II, which relied heavily on European (and often Jewish) scientists who had fled Hitler, is one illustration – one of many – of the value to America of ethnic and cultural tolerance.
4. Multiculturalism as a source of knowledge for dealing with a multicultural world: The world is filled with lots of different cultures, whether we like it or not. Experience with different cultures within the U.S. helps us deal with different cultures outside the U.S. – for instance, by giving us a pool of American citizens who actually know the foreign language and culture, and more generally by making our citizens more familiar with people of other cultures.
Again, these are not unalloyed benefits. Multiculturalism can create domestic tension; consider the Civil War, as I mentioned above, plus of course many ethnically, culturally, and religiously based civil wars in other countries.
Some cultures may teach their members to prey on outsiders. Some cultures may teach their members to prey on insiders, so that tolerating the culture may give extra happiness to some members at the expense of other members. Some of the immigrants from other cultures may come to be dangers to the nation rather than assets. There are doubtless other possible problems as well.
And it should also be obvious that, because of this, we should properly calibrate our tolerance for multiculturalism with our insistence on also supporting a unified national culture. We shouldn't try to completely stifle all rival identities (whether Catholic, Jewish, or Baptist; Irish-American, Chinese-American, or Mexican-American; or whatever else), but neither should we neglect the building of an American identity. We should accommodate some religious or cultural objections to generally applicable laws, as we have done for centuries in countless ways. But we shouldn't (and generally don't) accommodate objections when the accommodation would substantially harm others.
Still, it's also important to recognize that many forms of multiculturalism are not valueless, alien, or new. Even without reference to specific valuable aspects of specific cultures, they have some general value. And they are deeply linked to fundamental aspects of our American constitutional culture.
It's a mistake, I think, to condemn multiculturalism in general, just as it's a mistake to praise multiculturalism in general. Rather, we should think about which forms of toleration, accommodation, and embrace of differing cultural values and behaviors are good for America – in the light of American legal and social traditions – and which are bad.