In our schools of law, we should teach patriotism. What I am saying isn't simply that we should teach about patriotism. We should teach it. For patriotism, properly understood, is essential to the vitality of our democratic politics. It is through democratic politics that our law is supposed, ultimately, to be made--and legitimated. Thus, patriotism must be essential to the spirit, if not the letter, of law in America. Hence, it must be basic to "thinking like a lawyer."
When we're considering possible legal responses to terrorism--which has already elicited so many expressions and so much discussion of American patriotism--my proposal for a fundamental enrichment of the content of legal education would surely seem to be in order.
But let me back up. There is, of course, no chance that law schools will undertake to teach patriotism anytime soon. This isn't just because the proposal is at odds with the current ambition of most of them to reposition themselves as "world" law schools, hoping to "internationalize" everything in sight. Nor is it just due to the spell that rationalistic universal theories (economic, philosophical, you name it) have cast over legal education for decades now. It is also because an awful lot of legal educators would simply be embarrassed to teach patriotism. To them, patriotism may seem a "point of view" too controversial to be embraced by academia. (To be sure, more politically correct points of view may not seem at all "controversial" to them. But that is another story.) Worse, American patriotism may strike some of them as more than a mere point of view--a sort of "religion"--and thus not only inappropriate but dangerous. Even worse, they may simply feel it is "beneath" them. If you think this suggestion is unfair, consider that things could be still worse: In the midst of World War II, writing of the general tendency among intellectuals to "snigger" at patriotism, George Orwell famously claimed that "almost any English intellectual would feel more ashamed of standing to attention during `God Save the King' than of stealing from a poor box." (1)
For whatever reason, any idea of patriotism being taught in law schools is a dead horse. Instead of pretending to whack it into life, I want to do something more practical. What I mean to do is elaborate on the initial premise behind my proposal: that is, my assertion that patriotism, properly understood, is essential to the vitality of democratic politics. To be sure, patriotism, no less than democracy, has been understood in many different ways--ways that are often mixed and mushed together, their variety obscured. My aim isn't to disentangle all these differences, though I hope to highlight some. Nor is it to define one "true" understanding of anything. Rather it is to paint, with a few strokes, a picture of a deep strain in American patriotism that is crucial to a deep-rooted imagination of the vitality of American democracy (and so of American law).
With our homeland under violent foreign attack for the first time in almost two centuries, this project is, after all, more important than any improvement of legal education. The effort to defend the nation, now only beginning, is bound to be controversial. Sometimes, the issue will be: What is the right thing to do? Sometimes, the same issue will be more focused: What are the pros and cons, taking public opinion into account, of doing this or doing that? In any event, assumptions about patriotism-as a source of value and as a popular sentiment--are going to play a part in the controversy to come. What could be more worthwhile than examining assumptions ahead of time?
How, as a general matter, should we imagine the relation between American patriotism and American democratic politics? Can patriotism be understood to be a democratic politics? More specifically, can it be understood as an invitation or an inspiration to popular political activity, promoting engagement by the mass of ordinary people in self-government? I believe it can be (and commonly is), but only after clearing away a good deal of all-too-familiar detritus.
What is all-too-familiar is a conglomerate idea of patriotism, conceived as an aspect of democracy that works to discredit, rather than promote, the project of popular self-government. Usually, this idea flourishes in the dusk of platitudes and supposedly self-evident assertions. I want to catch it for just a moment in the headlights of analysis. I'll try to illuminate three separate images within it, and I'll suggest that each of these yields two distinct conceptions. Their polyglot character should be clear. That they are so often, so casually, combined (2) suggests that this idea of patriotism, taken as a whole, expresses an animus--against ordinary people as political actors (3)--which should, in turn, spur us to consider a more democracy-friendly alternative.
The first image simply cuts most of the politics out of patriotism. That is, it understands American patriotism to encourage nothing in particular. So imagined, patriotism moves us not to interfere with what others do. Indeed, it moves us to avoid public disagreement about what anyone should do. One conception yielded by this image is captured in the proclamation of the eight-year-old: "It's a free country!" It is also exemplified by a superficially more sophisticated claim made by adults: "The flag stands for my freedom to bum it (if I want)!" Pushpin or poetry or politics: one is as good as another. Invoking patriotism as a value, these are arguments meant, in fact, to shut down argument--to turn off political controversy with the laughing gas of laissez faire. A second non-political conception of patriotism takes it to be a sentiment rather than a value. It identifies a patriot as one who yearns for a simple identity, an easy emotion, warm reassurance, a hiding place. The picture is one of self-indulgence and passivity. So conceived, patriotism provides ready cover for all manner of sins--refuge, as they say, for a scoundrel. Unlike the other conception, this one is typically invoked to express an open disdain for the patriot. What unites the two is this: neither of them imagines patriotism as motivating--indeed, both imagine it as significantly resistant to--popular engagement in politics.
The second image portrays patriotism as too political rather than non-political. It takes patriotism to be a dangerous sentiment, threatening the suppression of freedom by means of democratic politics. In its milder form, it yields a conception of patriots as conformists, bent on forcing conformity on everyone. Thus, patriotism is often identified with the politics of a herd, of authority, and of obedience at the expense of democratic controversy. In more extreme form, this image leads to a conception of a patriotic virus, driving people infected by it to aggression, expansion, and domination, like millions of fundamentalist despots. Think back to the immediate aftermath of September 11. Recall the expectations of a return of "McCarthyism," mobilizing patriotic sentiment to compel political conformity. (In some circles, Waiting for McCarthy is a habitual self-dramatizing pose.) Remember the warnings of roundups of hundreds of thousands of Arab-Americans, raising (as if invoking an historical law) the specter of internment of Japanese-Americans years ago. Recall the widespread anticipation that the President, in obedience to inflamed public opinion, would lash out, indiscriminately bombing vast swathes of the planet, without pause for thought. A delicious doomsday scenario: attributed, directly or indirectly, to the democratic politics of popular patriotism.
As if in response to the first two, the third image of patriotism seems designed to correct the distempers they highlight. It understands patriotism primarily as a value, secondarily as a sentiment. The value is transcendence of one's ordinary self through obligatory service to others, with service imagined as radically distinct from and superior to the quality of the ordinary self. This image yields, first, a conception of patriotism as extraordinary civic virtue, a species of heroic altruism. High-minded concern for--indeed, devotion to--"the common good" as opposed to "self-interest" is portrayed as the mark of a patriot. But how can you be sure that you are civically virtuous enough? The question yields a second conception--a conception of patriotism as self-sacrifice. It is not sufficient to transcend yourself. You must invite and embrace harm to yourself. You must feel your own pain: patriotism as a sort of masochism. (Think of the perennial calls on our leaders to call on us for sacrifice.) Taken as a whole, this understanding of patriotism is neither non-political nor anti-political. It is commonly invoked to encourage active engagement in politics. What it imagines, though, is a noble kind of engagement in a noble kind of politics, by noble individuals. (How often, still, do we hear politicians proclaim that theirs is a "noble profession"?) What it does not imagine is widespread popular engagement in democratic politics by ordinary people--who may very well have in mind their own mundane concerns, their "narrow" personal interests, as much as the good of the community, and who experience no opposition or even distinction between the two. (4)
What, by contrast, are the elements of a democracy-friendly idea of American patriotism? Two are required. First, rather than non-political or anti-political, it must be pro-political. That is, it must embrace and celebrate engagement in political conflict. Second, the kind of engagement it imagines must not be limited to, nor should it privilege, noble or heroic commitment or behavior by extraordinary individuals. To the contrary, it ought to include the personal, private, even self-interested motivations and concerns of ordinary people; and the deeds it celebrates ought to be the deeds of...