America’s history of tolerance and accommodation, which the late Justice Ginsburg invoked at oral argument, reflected America’s constitutional institutions. When legislators representing diverse people and values meet on equal footing to debate and deliberate, the product is informed by values of toleration. The legislative process’s inherent tendency toward compromise and moderation is itself a crucial institution for the perpetuation of tolerance. But in dominance, intolerance.
And when Americans see the lawmaking power as a weapon to be won in warlike presidential elections and then wielded against one’s opponents for the four years that follow—not the shared responsibility of legislators—they too lose their capacity for tolerance and their memory of toleration.
Rebuilding that capacity, and restoring that memory, requires a return to Madison—not a “Madison’s Razor” of Rakove’s creation, but the genuinely republican constitutional institutions that Madison himself labored to help create, and the republican virtues that Madison knew undergirded those institutions.
In a country governed primarily by uncompromising regulators who make law unilaterally, the recent rupture in Americans’ views of religion and religious liberty has become much more ominous.
— Commentary Magazine (@Commentary) December 24, 2020