Law, Tolerance, and Civility's Illusions
TO BE CIVIL is not to suspend moral judgment; but to be civil may sometimes mean tolerating conduct of which you disapprove. You may, for example, believe that smoking cigarettes is wrong and yet be unwilling to interfere with the freedom of your fellow citizens to choose to do it. In this, a sensible civility tracks the tension between two important aspects of the role of morality in a free society. On the one hand, freedom unrestrained by clear moral norms begets anarchy. On the other, moral norms that have the force of law often stifle freedom. This tension is inevitable in a nation that wishes to be both moral and free. But nobody can (or should want to) sustain the tension indefinitely; sooner or later, on every question on which we might disagree, the side of freedom or the side of restraint will have its way.
Consider the most divisive moral issue in American history, the only one over which we fought a shooting war among ourselves: slavery. In the first half of the nineteenth century, abolitionist sentiment spread rapidly through the young nation. Already by the 1830s, proslavery and antislavery partisans had met in violent confrontations. Everybody knew that the argument might end in warfare. Yet, as the historian William Lee Miller has shown, the antebellum Congress turned parliamentary handsprings to avoid serious debate on the issue.1 After all (as many Northern members evidently reasoned), the fact that slavery was immoral did not mean that the government should ban it. To many of the self-