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For Which We Stand | The Nation

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Diary of a Mad Law Professor

For Which We Stand

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Supreme Court Justice Anthony Kennedy has been traveling around the
country recently as part of a nationwide post-9/11 effort to promote
debate about civic values in schools and colleges. According to the
Boston Globe, Kennedy spent a day in that city's top public school,
Boston Latin Academy, and proposed a scenario in which "students
accidentally end up on a three-day layover in a very poor (imaginary)
nation called Quest, where Drummer, a young charismatic man, preaches
that the decadent United States should be destroyed. Quest citizens say
Drummer offers hope for change and that America is corrupt." Quest is
described as pervasively corrupt; although it has a written
constitution, "promises are not kept." The students were challenged to
defend American democracy.

The idea of getting students to excavate and examine the values they
hold most dear is an excellent one, although I must say I'm suspicious
of such a flatly simplistic scenario. I'd want to know a lot more about
the politics, history and economy of Quest. What's driving the
resentment--is it poverty? If so, is the anti-American sentiment merely
due to the abstract symbolic wealth of the United States, or is there
some specific industrial business presence in Quest--say an Enron--whose
unethical exploits have, by exacerbating living conditions, been
mistaken for the people and values of the United States? Does
anti-American resentment in Quest cut across all socioeconomic
spectra--hinting at some more ideological or religious discontent? Or is
it the result of some specific trauma, like Bhopal? Has the United
States supported oppressive regimes in the region? Is Quest an ally,
like Iran or China?

I suppose Justice Kennedy would not appreciate a devil's advocate like
me; I suppose he wants students to imagine Quest along the lines of
Zimbabwe or Iraq. I suppose the "right" answer would be that I'd spend
my three days proselytizing, as I do right here at home, about the
salutary effects of due process, free and honest elections, the Bill of
Rights and equal opportunity for all. But any good player in strategic
games knows that studying the motives and designs of the opposition
makes all the difference.

So I question what was accomplished by the vagueness of this exercise.
Indeed, its open-endedness made me think of an essay I read recently by
Harvard law professor Richard Parker, in the spring issue of the Harvard
Journal of Law and Public Policy
. Parker urges the "making" of
patriotism as a mobilization of emotion--"a political equivalent of
love"--that must be "grounded like electricity." He poses a set of
questions to test those sensibilities: "Recall your own early reactions
to the September 11 attack. (1) Did you feel that it was, in fact, an
attack 'on the United States'? (2) Did you believe that the United
States should defend itself--including preemptive self-defense to the
extent necessary? (3) Did you focus mostly on the past misdeeds of our
country. (4) Did you adopt a 'pragmatic' stance and argue that we ought
to govern ourselves by attending to 'the way we and our actions are
perceived' abroad? those who love our country are more likely than not
to give one set of answers: yes, yes, no and no."

Much of this essay struck me as romantic, murky nonsense; but what
troubled me most was its source. Like Justice Kennedy, Professor Parker
is powerfully positioned to be advancing a Rorschach test no more
reliable than a mood ring--patriotism reduced to "which side of the line
did you see yourself on if I flash this picture of September 11." And it
is irresponsible if one is then prepared to fashion a set of
consequences for being on the wrong side--as could well be under the USA
Patriot Act, which authorizes increased surveillance and interference in
the activities of those deemed unpatriotic.

What I thought on September 11 was considerably more tangled than
Parker's test. Lots of people were confused--people whom it would be
quite foolish to characterize as unpatriotic. When I first heard of the
hijackings, for example, I feared that it was retribution for Timothy
McVeigh's execution only a few months before. That gut reaction might
place me on the wrong side of Parker's test--my fears didn't
"privileg[e] insiders" more than "hostile outside forces." Moreover, in
my conviction that our civil rights are on a continuum with human
rights, I might run afoul of his assertion that "strict commitment to
universal values," including the notion of human rights, tends to
"stretch and break the bonds of patriotism, as their enthusiasts
proclaim themselves 'citizens' of nothing less than 'the world.'"
Indeed, by this measure, Timothy McVeigh might have had a greater chance
of passing Parker's test than I, which is distressing, to say the least.

Back in Boston, Justice Kennedy asked "whether it was right to let
people in other nations choose dictatorships." That troubled one senior,
who felt that the Justice was saying it was OK to impose democracy. "I
don't agree...[but] if I was in another country, I wouldn't be able to say
such things to such important people. You probably wouldn't see me
tomorrow." (I do hope the student was a citizen; if not, he could be
subject to President Bush's order allowing indefinite detention of
noncitizens without charge in undisclosed locations, with no recourse to
lawyers of their choice.)

If I were designing such an exercise, I'd use specific examples--like
Argentina under the junta or Turkey under martial law--rather than a
one-size-fits-all fictional foe. I'd have students compare the text of
the Constitution with the text of the USA Patriot Act. I'd have them
studying the right of habeas corpus, to my mind the greatest
contribution of Western jurisprudence. And I'd remind them of playwright
Arthur Miller's concern that we not turn our civic engagement into a
crucible where a "political policy is equated with moral right, and
opposition to it with diabolical malevolence. Once such an equation is
effectively made, society becomes a congeries of plots and counterplots,
and the main role of government changes from that of the arbiter to that
of the scourge of God."

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