Constituting a Nation, Making a Home,

After September 11th

 

David A. Westbrook*

 

 

I recently accepted an invitation to speak at a panel on American constitutionalism after September 11th, a panel given at least in part for remembrance and reflection, with more than the usual trepidation.  It is difficult to know how to respond appropriately to September 11th.   The risk of profoundly bad taste is substantial.  As Leon Wieseltier recently put it, “But if death may be usefully forgotten, it may not be usefully misremembered.  A shallow mourning is a hideous thing.”[1]  Hideous, but not uncommon, as has been amply demonstrated in recent months, and especially by the chattering classes.  We have great difficulty publicly considering without cheapening, and that is something of which to be ashamed.  Fortunately, the ceremonies on the actual anniversary of the attacks, September 11th, 2002, were handled with dignity and are already behind us, and so much of the embarrassment of our shallowness is fading. 

In asking after the American constitution, the organizers of the panel excused us from having to respond to September 11th directly.  We could talk around the matter, and ask what the attacks of September 11th meant for American politics, a familiar and pretty tame arena for law professors.  There are even a number of customary ways in which to approach the problem.  First, we can ask about the attackers, a discourse which has too often been reduced to the slogan “why do they hate us?”  It quickly emerges, of course, that “they” is already a simplification, and understanding another culture is a difficult matter, and we generally do not have the discipline to engage in serious comparison.  That said, I certainly believe that thinking about other cultures is usually salutary, and I wished the invited comparativist luck, confident that I would learn something.

Another customary way for American lawyers to begin talking about the political consequences of an attack on the United States is to talk about possible threats to civil liberties.  Governments that are attacked understandably tend to defend themselves and their people.  In order to do so, they generally aggrandize power unto themselves, until civil libertarians begin to worry that their own government poses greater dangers than the foreign enemy.  We see this tension between the military capabilities of the state and the libertarian objections of the citizens throughout American history, from the Alien & Sedition Acts[2] to Lincoln’s suspension of habeas corpus[3] to the internment of Japanese Americans during World War II[4] to the establishment of the Cold War intelligence apparatus[5] to the issues of equal treatment, rights to representation, and so forth raised by this administration’s efforts to conduct the War on Terrorism.  In principle at least I support this approach, for the traditional reason that government power should not be exercised without at least the resistance of critique.  But, as with issues of Islamic perspectives, other people on the panel were more competent to speak than I.

Increasingly sceptical of the enterprise, but having promised to talk, I approached the question of what September 11th might mean for the constitution of the United States in a different way, a way that I hoped would shed light on both our comparative endeavors and our traditional concern for the balance between civil liberty and military capability.  I wanted to think about the constitution of the United States in the literal sense of forming, constituting, a nation, not the document, but the cultural process in which the document plays such a large role.  On the sort of occasion when we lawyers usually interpret a text, I talked about the development of a collective understanding of political life.  Specifically, I asked after Plato’s noble lie: what is the myth that enables a group of individuals to understand themselves as an entity, a polity, and hence justifies the legal order, with the inevitable unpleasantness that maintaining order requires?  In The Republic, the noble lie was the idea that people are, from birth and by nature, of different sorts, and therefore particularly suited to their jobs within the republic.[6]  Does the United States have a noble lie, and if so, what is it?  Does September 11th cause us to rethink our lie?

 

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I believe America’s noble lie is the idea of America itself.  America, as any listener to country music knows, is “the greatest country on earth.”  Government officials echo this sentiment in their pursuit and indeed realization of the tradition of American exceptionalism, the belief that America is a nation unlike other nations, with its own special mission in the world.  The United States is the indispensable nation, said Secretary of State Madeleine Albright, and contemporary international discourse about foreign affairs is largely a discussion of how to handle American exceptionalism.[7]  The preoccupation with American exceptionalism is rooted in objective facts as well as American beliefs: as any number of recent commentators have pointed out, the relative power of the United States government is unprecedented, orders of magnitude different from that of other governments or international institutions, a situation aptly captured by the French Foreign Minister Herbert Védrine’s phrase hyperpuissance, hyperpower.[8]  The idea of American exceptionalism can even be rendered somewhat acceptable to squeamish academics by reference to John Winthrop’s biblical image of a city on a hill – an image of justice achieved with which law professors in particular have been known to console themselves.[9]  But what does it mean to say that this is the greatest country on earth?  What could it mean?

The question is rarely asked.  Proponents of American exceptionalism put the notion forth as a self-evident truth, not unlike the inalienable liberties with which all men and now women are endowed by their creator.  But the nature of this truth is a bit obscure.  Clearly, the claim that America is the greatest country on earth is not a judgment based upon a social or historical aesthetic, a standard by which one society could be denominated great.  Still less does American exceptionalism indicate that one has traveled to and evaluated other countries, and found that they do not measure up on some yardstick of national greatness.  On the contrary, American exceptionalism at least suggests a lack of interest in other countries: because America is the greatest country on earth, we pay insufficient attention to other countries.  But this is too simple.  American exceptionalism cannot be reduced to exuberant isolationism.  American internationalism, self-interest, and even charity are as old as our exceptionalism, and the traditions intertwine in complicated ways.  American exceptionalism with regard to Iraq, for recent example, or the former Yugoslavia, for another, are not expressions of isolationism.  So we are left asking after the substance of American exceptionalism, more simply, we are left asking what it means to say – as so many of our citizens do – that this is the greatest nation on earth. 

Any American knows the correct, in the sense of expected, answer to the question: freedom.  When the occasion arises, the vast majority of Americans, as well as presidential speeches and country music songs, claim that American is the greatest of nations, or that America is worthy of being loved, because Americans are free.  Despite the familiarity of the sentiment, it is hardly an obvious response.  When teaching the ambiguity of post-war German experience, my mother asks her students, affluent undergraduates, what they love about America.  The students almost invariably answer in terms of political freedom, liberty, but why?  Few if any of them have had their rights curtailed by the state.  German students, in contrast, are far more hesitant to speak about the German nation in terms of either love or freedom, despite the fact that Germany is their home and has had, at least in their lifetime, a substantial tradition of civil liberty and indeed social rights.  My point here is that America is the land of the free in a very literal sense: we publicly understand the characteristic virtue of our political order and even culture to be, without elaboration, freedom. 

I think the concepts of freedom and American exceptionalism are deeply linked, but in a way that may not be self-evident.  If we return to the idea of the city on a hill, we must remember that this was a city yet to be founded – the point was to build the city on a hill, to build a new nation in the wilderness.  The Constitution was an effort to establish a more perfect union.  Then and since, the United States understood itself in terms of the future, and conversely, as opposed to history.  We speak of the American experiment, the American project.  America has always understood itself as something to be judged on its potential.  We hear the echoes of this understanding of politics in the future tense, for pertinent example, every time we law professors make some argument for a policy that, we argue, is law because it helps realize some aspect of the American promise.  In contrast, other nations generally understand themselves as achievements of history, and not always political history.  Where Americans see a political promise, members of many other nations tend to see a cultural inheritance; when Americans have spoken of opportunity, others have thought in terms of obligations and traditions.  American constitutionalism, then, is oriented towards the future rather than the past, and towards politics at the expense of culture.

An important point of clarification: American claims about individual freedom are not claims about the quantum of personal liberty that individuals enjoy in fact.  Many Americans have been and are constrained in sundry ways.  But America was the land of the free even before the repeal of de jure segregation; America is the land of the free in spite of the very real social burdens under which many Americans live today.  Nor is American freedom merely a political ideal, a social good to be achieved whenever possible.  Instead of a description or even a normative ideal, American freedom is a constitutive political principle.  Freedom is a logical antecedent to the American understanding of their political order.  Winthrop’s audience had to be free to leave first England, and then the ship, in order to set foot in the new land and get to work.  The Declaration of Independence and the constitutions that followed presumed freedom.  How else were such covenants to be joined?  Without denying that many people have been excluded from participating in the American project, one cannot talk about such a project at all without simultaneously asserting that one is free to embark on an adventure.  The assertion of the American project, to believe that Americans will create a better America that has yet to come, thus necessarily entails an ideal of freedom, logically requires America to be the land of the free.  Americans are free not as a matter of accidental fact, but by definition, as a matter of principle.

There are profound problems with politics understood in terms of the future and the political freedom to seize it.  Understanding the purpose of politics to be “freedom” sets few constraints on the grand designs of the nation.  Once a free people has made up its collective mind, once destiny is manifest, who is to say otherwise?  If the future is on our side, then sins tend to be forgiven, and perhaps committed more easily, because the end – whether it be the conquest and cultivation of the West, the industrialization of the North, the defeat of the South – is progress and so could not be more just.  In the same vein, American foreign policy since the Monroe Doctrine has had a rather frighteningly presumptuous quality, in which America announced what it believed to be its future, and the future of its neighbors.  It is worth recalling that Marxism made similar claims on the future, and by the second half of the twentieth century the United States and the Soviet Union were poised to obliterate one another, literally prevent the future, in the name of different ideas of what was to come.

Which brings me to a second problem with understanding politics as we do, in terms of the future and our freedom, a strange combination of defensiveness and willfulness.  If we understand our political order to be our own creation, if we see ourselves to be conducting an experiment with human history, then we are deeply responsible.  America has not been achieved, but we have so much invested already that we must go forward, brooking no opposition.  The most beautiful and frightening statement of this combination of anxiety and bloody resolve is Lincoln’s at Gettysburg:

It is rather for us, the living, we here be dedicated to the great task remaining before us – that, from these honored dead we take increased devotion to that cause for which they here, gave the last full measure of devotion – that we here highly resolve these dead shall not have died in vain; that the nation, shall have a new birth of freedom, and that government of the people by the people for the people, shall not perish from the earth.[10]

 

And so Lincoln continued to prosecute the war, a decision our history gives us no real choice but to applaud: the Union needed to be preserved, and slavery needed to be abolished, and war was the only way.  But even at the time, with so many dead, how could Lincoln do anything other than continue to fight?  In a similar trench, the United States fought for over a decade in Vietnam, in part because it could not withdraw honorably, that is, without dishonoring its own commitments to itself and to its dead. 

Less dramatically and even more pervasively, the immigrant couple who moves to the New World and raises a family must try to believe that they have done the right thing, that they have built a better life.  In a country as vast as the United States, those of us who have moved far from our homes in pursuit of this or that career opportunity must tell ourselves similar stories.  And there is something faintly un-American about dwelling on how ugly much of our country is, ranging from bad industrialization to uninhabitable cities to the suburban sprawl that disfigures enormous swathes of the countryside.  While our homes are degraded we tell ourselves that, after all, there would be no market for such things if people did not like them . . . we are free to build, but once we have built, we are estopped from complaining.  More generally, insofar as Americans are free to participate in the project, then the brave and upstanding thing to do is to accept responsibility for their political order, without whining.  Academics aside, Americans rarely blame fortune, like Machiavelli, or the workings of history or tragic circumstances – now that our city on the hill has been established, we do not deny responsibility for building it.  Even our oppressed peoples tend to be not only long-suffering, but patriotic.

This sense of responsibility gives rise to the defensiveness that marks the claim that this is the greatest country on earth.  An enormous amount has been done within a few centuries – America has literally outstripped the world in many endeavors, and does very well in countless others – but one cannot completely deny the struggles that building this society has required.  It has been no small thing to build America.  The continent is huge.  There have been many, many wars.  Many people have died badly.  History is ugly.  It is a terrible thing to feel oneself responsible for, and Americans cannot deny responsibility for their political order.  This, after all, is the nation built from “the reflection and choice” of Americans.[11]  Of course this is the greatest country on earth.  It had better be.

            To summarize the argument thus far: because we understand politics in the future tense, as a task to be achieved rather than an inheritance to be assumed, we understand ourselves as free; and because we understand ourselves to be free, and in fact understand this to be a free society, constituted by the aggregation of individual choices, we feel responsible for what history we do have; and because we are responsible for history, with all its horrors, we defensively claim that America is the greatest country on earth, or in more polite language, that America is exceptional, sets its own standards, keeps its own counsel, irrespective of the judgments of others.  For what could others have to say about America?  America can only be understood in terms of its own historical process, a process which is never ending, and which promises something always yet to be delivered, and consequently can only be rightly perceived by those involved in bringing it about, that is, Americans.  This is our noble lie – the myth on which our understanding of our political order turns.

            There is a third problem with our understanding of politics lived forward, a certain vacuity.  A polity which is not yet achieved is all promise and potential, and hence haunted by the possibility that the promises are empty, the potential perpetually unrealized.  More deeply still, we may come to understand (we have come to understand) politics as the act of promising, and in doing so, we give up on the possibility of satisfaction, contentment, home.  America, in short, is a liberal polity, perpetually becoming but heretofore at least incapable of just being.  The best, as a recent presidential campaign slogan has it, is yet to come.[12]  Always.  And so we need not think too much about who we are, now.  We are defined in terms of our liberty, our capability to act in the future, but we never reach the horizon that defines our political identities.

            I stress that we never reach our political identities.  The United States is not, in fact, vacuous.  American culture is rich in most senses of the word.  Much that is American is distinctively so, and instantly recognizable as such.  Consider music, movies, business culture, clothing, cars, architecture . . . Even things which other nations contribute, including items on the foregoing list, seem to have made it when they become widely accepted in the global – which not accidentally seems strangely American – market.  Consider in this regard Irish bars and Thai restaurants and British games and German cars and Japanese video games, things that regardless of their origin are part of the fabric of not only global, but specifically American, experience.  Although it may be difficult, and even a bit politically incorrect, to define what “American” means, we know.  In practice, we have very little difficulty identifying a moment, a stance, an attitude as “American.”  Citizens of other countries tend to be more forthright about the existence of a distinctly American culture.  Indeed, at times the substance of American culture often seems oppressive, hence the phrases “cultural imperialism,” or “anti-Americanism.” 

            For their part Americans often have genuine difficulty coming to grips with the very idea of cultural imperialism.  In part this is because the United States has at most flirted with traditional ideas of empire.  Americans have no desire to rule spice islands.  More typical is the willingness to give up strategic assets, such as the Panama Canal or the Subic Bay base in the Philippines.  More fundamentally, however, because Americans understand politics in terms of freedom and of the future, indeed, in terms of freedom from the past, and therefore the typical American response to charges of American cultural imperialism is to insist on choice.  One may choose not to go to McDonalds, or to drink Coca-Cola.   From the American perspective, the political question is not about the cultural environment, which may or may not include a McDonalds.  The question is about the availability of choice, autonomy.

            Small wonder, then, that the international discourse over American politics is so confusing.  For Americans, politics is by definition indeterminate, vague, procedural in nature, and hence fundamentally empty.  When talking about politics, Americans are talking about an ideal structure, a vision evoked by phrases like “ordered liberty” or the “availability of choice.”  From outside the United States, however, American politics is seen to reflect, breed, and impose a powerful set of cultural practices and norms, inescapably foreign.  When non-Americans talk about politics, particularly American politics, they are talking about a set of experiences, about what (they think) it is like to be in America or to be American, a possibility that many of them resist.  In short, because the word “politics” means fundamentally different things in America and elsewhere, international conversation about American politics tends to be incoherent.

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            I do not believe that the liberal tradition is optional for Americans.  We have too many people, coming from too many different cultures, with different beliefs about fundamental matters, spread across too many miles.  And we are committed to making this confusion work, a commitment we animate with some version of the city on a hill, some version of “I have a dream”[13] that our political ideals will be realized in the future, that our efforts will yet be redeemed by an America still struggling to be born.  The liberal polity will come to mean something once the experiment is successful, the project completed . . . and this noble lie logically requires us to espouse freedom in principle, and even exceptionalism.

            Those things said, it may be that the sheer horrors of September 11th, the raw losses, cause us to reflect on the concrete experience of living and dying in America.  While I concede that we must live in a liberal polity, liberalism need not be the horizon of our thought.  From within a liberal constitutional frame, we might think about what our lives amount to, rather than being satisfied with further articulations of civil liberties, of our perpetually unrealized potential.  We should also consider our own America, America as experienced right now, without forgetting or denying that America is also a dream, a vision. 

            What I am proposing is not entirely new; we have traditions of articulating the American experience as opposed to the American project.  Consider the blues and other forms of “traditional” music that struggle to express the deeper meanings of ordinary life.  Some traditions of American experience are even antagonistic to the dominant politics of America as opportunity.  Consider environmental law in its preservationist mode, that asks after the special meaning of  particular places in opposition to the transformations wrought by the national market.  Even more to the point, consider the tradition of writers including Thomas Jefferson, Mark Twain, and Thomas Wolfe, each of whom understood America to be deeply hostile to their experiences of land, home, and identity. 

The Southern origin of much of the politics of American experience rather than American aspiration may still be part of our problem.  One of the things that was destroyed in the Civil War was the idea that home, the rallying cry of the South, was a political concept.  To be blunt, the idea of “home,” a place, was defeated by the idea of “the Union,” a compact.  In the process, the politics of “home” became tainted by its association with brutal domination, slavery, whereas the Union literally proclaimed emancipation, so that it became difficult to talk about what the South might have meant without risking an apology for evil.[14]  Perhaps in consequence, American politics since the Civil War has increasingly divorced itself from culture, and conversely, we have constructed American culture through institutions and forms distinct from those we rather narrowly call “politics.”  But now that Tom Wolfe is writing of suburban sprawl in Atlanta, and we cannot go home again because home no longer exists (salting the earth, indeed!), we finally may be able to declare the Civil War over, and ask, again, what our political lives might amount to.[15]  We already may be doing so, at least in small ways: September 11th has caused us to speak not only of our freedoms, as usual, but also of America the beautiful, and even of homeland security. 

September 11th may yet inspire us to ask what we should have been asking all along: what is this way of life we find ourselves defending?  What, specifically and concretely, do we love?  At issue then would be not what does a system of ordered liberty require, the question law schools have traditionally pursued.  Instead, our question would be what does American culture, and hence the human possibilities afforded to Americans, require?  Perhaps if we had attended to that question over the last few generations, we as a people would now be able to mourn, and even fight, more gracefully.

 


* Associate Professor of Law, UB Law School; Visiting Associate Professor of Law, Emory University School of Law.  This essay was written for a conference, “Perspectives on the War on Terrorism: 9/11 a Year Later,” given by the American Constitution Society at the University at Buffalo Law School on September 25, 2002.  Thanks to Shubha Ghosh for organizing the conference and inviting me.  I also thank Pierre d’Argent, Pierre Schlag, Jack Schlegel, and Joseph A. Westbrook (from whom I stole the idea of talking about lying).  Michael Jones provided great research assistance.  Any mistakes in the text are mine.

[1] Leon Wieseltier, “A Year Later,” The New Republic, September 2, 2002.

[2] An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. 596 (1798); An Act Concerning Aliens, 1 Stat. 570 (1798).

[3] Proclamation No. 7, reprinted in 13 Stat. 734 (1863); see also 12 Stat. 755 and Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

[4] See Korematsu v. United States, 323 U.S. 214 (1944), purporting to apply 18 U.S.C. § 97(a), 56 Stat. 173 (substantially based on Executive Order No. 9066, 7 C.F.R. § 1407).

[5] National Security Act of 1947, Act of July 26, 1947, 61 Stat. 495 (codified as amended at 50 U.S.C. § 401 et seq. (2002).  § 403 applies specifically to the C.I.A.

[6] PLATO, THE REPUBLIC III (414b-515d).

[7] See Michael Dobbs & John M. Goshko, Albright’s Personal Odyssey Shaped Foreign Policy Beliefs, WASH. POST, Dec. 6, 1996, at A25.  Albright apparently uttered the phrase in remarks following the announcement of her nomination as Secretary of State.

[8] HUBERT VÉDRINE, FRANCE IN AN AGE OF GLOBALIZATION (2001).

[9] See JOHN WINTHROP, A Model of Christian Charity, in 2 Winthrop Papers 282, 295 (Stewart Michael ed., 1931) (1630).

[10] ABRAHAM LINCOLN, Gettysburg Address, in 7 THE COLLECTED WORKS OF ABRAHAM LINCOLN 23 (Roy P. Basler ed., 1953).

 

[11] THE FEDERALIST NO. 1, at 33 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[12] See, e.g., Charles M. Madigan & William Neikirk, Democrats Embrace Clinton: Jubilant President Nominated as He Arrives in Chicago,  CHI. TRIB., August 29, 1996, at 1.

[13] Martin Luther King, Jr., I Have a Dream, in The Penguin Book Of Historic Speeches 487, 489-90 (Brian MacArthur ed., 1995).

[14] 12 Stat. 1267 (Jan. 1, 1863) (freeing slaves); see also ABRAHAM LINCOLN, THE EMANCIPATION PROCLAMATION (John Hope Franklin ed., 1994).

[15] This sentence turns on a set of allusions for which a bit of background may be useful.  The search for home, and its impossibility for Americans, a “lost” nation, was a theme of Thomas Wolfe’s work, most famously Look Homeward Angel (1929).  The homelessness of America, and especially the South, was bound up with the destruction of the Civil War.  In that war, Union General William Tecumseh Sherman eviscerated the economy of the South in his “March to the Sea,” in the course of which he burned Atlanta.  The burning of Atlanta – the death of the antebellum Southern vision of itself – is central to Margaret Mitchell’s Gone with The Wind (1936) and the film of the same name (1939).  In its economic and military totality, Sherman’s campaign recalled the Romans, who salted the fields of Carthage, rendering them barren and prohibiting the resurgence of the city.  Atlanta, however, has been reborn from its ashes (the city takes the phoenix to be its symbol), but in being reborn, has been transfigured – indeed, Atlanta has entirely remade itself several times over the generations, causing a process of psychic dislocation, homelessness, that is, in part, Tom Wolfe’s subject, especially in A Man in Full (1998).