by George Anastaplo
(Constitutional Law Seminar – Loyola School of Law, Chicago, Illinois – April 26, 2010)
The liveliest discussion in my law school seminars this semester was in response to my Letter to the Editor on April 18, 2010 inspired by a front-page New York Times article of April 16, 2010 (“At MoMA Show, Some Forget You, Should Not Touch the Art”):
Why has there not been any serious public criticism of the determined impropriety of having completely nude women and men (standing a yard apart), shamelessly facing each other in a doorway, between whom visitors must squeeze in order to enter a popular exhibition these days in the Museum of Modern Art in New York City? Is not gross impropriety evident both on the part of those who mount such a display and on the part of those who attend this two-month-long exhibit in large numbers? Do not such ugly indulgences testify to an ominous decadence among our most privileged fellow-citizens, a deterioration that corrupts everyone involved, recklessly undermining thereby the moral foundations of our republican institutions?
The number of seminar members moved to speak was unprecedented, with no one venturing an opinion in support of the position taken in my letter. Perhaps a few may have been intimidated to remain silent by the vigor and persistence of my critics.
Such critics tend to ignore, when they do not even disparage, concerns about communal decadence and its consequences. The moral deterioration which was once routinely guarded against can now be dismissed as inconsequential. Public opinion and institutions are no longer to be looked to as guardians of our morals.
Deference to an unavoidable range in tastes may be seen in that arrangement at the Museum of Modern Art which permitted the prudish and others of like temperament to enter this exhibit through a more conventional doorway. Also, underage visitors, no matter what their temperament or desires, were not permitted to use the nudity-enhanced doorway available to “grown-ups.” This may have been, at least in part, out of deference to municipal ordinances grounded in what more “liberated” observers might regard as old-fashioned superstitions about corruption of the young.
The law students who were emphatic in their criticisms of my letter are themselves restrained, at least around the law school, in their language and dress. They defer thereby to the inherited limitations of the elders in the profession that they hope to join. One even suspects that few, if any, of such students would consider their careers advanced by publicized service in the enhanced doorway of the Museum of Modern Art exhibit that has been called to our attention.
However all this may be, most, if not virtually all, of these students came down firmly against the approach evident in my Letter to the Editor. They are quite apprehensive about the “repression” that might be opened up if my approach should be considered legitimate. Besides, it can be asked, what harm is really done if women and men with beautiful bodies are permitted to display themselves in the flesh, alongside works of art in which such bodies have long been depicted?
The law school discussion drawn on here occurred within a week of the virtually unanimous decision by the United States Supreme Court in United States v. Stevens (559 U.S. — ), the decision which seemed to find questionable, if not even unconstitutional (on First Amendment grounds), a statute which “criminalize[d] the commercial creation, sale or possession of certain depictions of animal cruelty.” This ruling seems to be part of a development which has significantly expanded the original political-discourse orientation in the First Amendment of “freedom of speech [and] of the press” to include an ever-broadening “freedom of expression.” It seems to be assumed, that is, that the community has neither a duty nor a right (nor, indeed, any need) to shape the opinions of its citizens with a view to the common good.
The sentiments voiced by the typical law student today seem to reflect the kind of permissiveness generally exhibited by the more ambitious youngsters of talent among us. On the other hand, people such as these do seem willing (if not even eager) to put up with all kinds of restrictions for the sake of “homeland security.” This has been a decade-long development since the atrocities of September Eleventh.
The resources, spiritual as well as financial, devoted to this enterprise have been tremendous. And they have been substantially unchallenged even by the otherwise freethinking young. Considerable physical harm is seen to be threatened—and vigorous measures may be (indeed, it can be insisted, should be) maintained to protect us.
The danger to life and limb is much exaggerated, especially when compared to many others physical dangers among us against which we do not routinely employ the resources now devoted to Homeland Security. On the other hand, the danger to the human soul of sustained fearfulness is not generally taken into account. We can see here still another form of the lack of concern for moral deterioration evident in the ever-growing tolerance of “an ominous decadence among our most privileged fellow-citizens.”
After all, moral deterioration can be suspected when the most powerful nation in the known history of the human race conducts itself so apprehensively. This has led to the many precautions in our everyday life that we have become accustomed to. These are equivalent, in spirit, to the concern once felt with respect to the Satanic (as during frantic campaigns for decades at a time against witchcraft).
This has led, as well, to remarkably extravagant military campaigns abroad. Such extravagance has not been good for the reputation of the United States worldwide. Thus, there has been seen in Iraq the kind of folly exhibited decades ago in Vietnam.
Even our more plausible Afghan intervention has suffered from a failure to anticipate the limitations of any such enterprise which went beyond immediately punishing dreadful misconduct. We can be reminded here of the warning given to the Athenians when they contemplated their fateful expedition to Sicily during the Peloponnesian War. They were told, Thucydides reports (VI, 9-14), “It is senseless to assault people whom you can’t hold on to after you conquer them, while failure would leave you worse off than before you attacked.”
It can seem, therefore, that the American people, and especially the young, can sometimes be excessively fearful about physical threats to their well-being and insufficiently fearful about moral (if not even spiritual) threats. Indeed, the moral threats are generally not seen as threats at all. They may even be seen as providing much-needed spice to what would otherwise be humdrum lives.
These failings—whether in excess or in deficiency—may even assure us, curiously enough, about the soundness of the American regime. That is, we are confident we can continue to govern ourselves fairly well despite critical shortcomings in key perceptions. A momentum that reaches back across centuries continues to keep us fairly steady, despite intermittent indulgences in collective silliness of one kind or another.
Perhaps that momentum is reinforced by the steady infusion into our system across decades of millions of immigrants. Do not such immigrants tend to be old-fashioned in their respect for moral standards? Thus, it might be instructive to determine what kind of families supply both the current shameless exhibitionists at the Museum of Modern Art and the hordes of privileged fellow-citizens who recklessly patronize them.
I have noticed the fearfulness of those, especially among the young, who warn against the repressiveness inherent in any collective effort to develop and maintain moral standards. I have also noticed the fearfulness, in the community at large, about the threats of “terrorism.” Do I not, however, exhibit still another form of fearfulness when I develop the criticisms I have been making?
Still, are there not more noble as well as less noble forms of fearfulness? The guidance here of Socrates can be instructive. Certainly, he has taught us, one should be fearful lest one not do the best of which one is capable.
That is not likely to be realized, however, if one does not recognize what the conditions are for developing and maintaining the best of which a community is capable. Both debilitating self-indulgence and paralyzing fearfulness should be recognized and avoided. A self-indulgent people, upon being attacked, can even be shocked into recognizing their mortality, thereby making themselves unbecomingly fearful.
One consequence of any steady deterioration in public character (as well as in the character of individual citizens) is that we can become unduly susceptible to chance events. The workings of chance here can extend to how such events are regarded. It can be difficult to exaggerate the influence here of the ever-growing and largely undisciplined electronic media.
One consequence of this profligacy is that one can be encouraged in one’s appetites and errors by having ready access to others of like “mind.” Such access can appear to be liberating, but only to those who do not recognize how much discipline may be needed to develop and sustain a human being who is self-knowing and self-controlling. It remains to be seen, for example, whether any of the electronic mass media can provide the reliability that particular publishers have been known to exhibit.
What is already evident (it should be emphasized) is that the wide variety of electronic venues can mean, in effect, that all tastes and inclinations find what may appear to be sufficient support. Thus, one is repeatedly reinforced in any peculiar tendencies one chances to have rather than being steadily challenged in a salutary manner. This means, in effect, that anything goes—somewhere!
Authoritative instruction remains invaluable. Thus, Socrates was sincere in his insistence that he welcomed—indeed, sought for—informed correction. Any correction thereby received can be gratefully remembered.
I remember, for example, a fleeting (but most instructive) episode at our Southern Illinois high school, a few weeks after the Japanese surprise attack on Pearl Harbor, when a film was shown to us in our high school gym, a film which included pictures of Japanese envoys in Washington. The boos from the student body moved our principal to stop the film, turn on the lights, and then lecture us that this was not the way to behave. This was, seven decades ago, a salutary intervention, reminding us of old-fashioned standards of propriety, even in time of war.
What happens when a sound liberty disintegrates into innovative licentiousness that is either “artistic” or “principled” in its protestations? This may be seen, perhaps, in the “hooligan art” current in those Eastern European countries that had been corrupted by a half-century of Stalinist repressiveness. A determined recourse to First Principles may be needed for a sound rejuvenation of human souls in accordance with the principles and the aspirations of a proper regime.
I return to a much more recent episode, that of the responses by both law students and the general public to the “bold” Museum of Modern Art exhibit. It is striking, if not even disturbing, that there has not been a public outcry in response—or, at least, none that has come to my attention. What, it can well be wondered, might move students to recognize the appropriate reach here of venerable rules of propriety?
My students could be asked, subsequent to our original seminar about this matter, whether the Museum of Modern Art display would seem objectionable to them if the nude pair used in the doorway consisted of a mother and her adult son or of a father and his adult daughter or of a brother and sister. Would such a display, even if “voluntary” on the part both of the performers and of the museum visitors, be objectionable? Almost all of those who spoke on this later occasion did find these pairings objectionable.
I was heartened by this abandonment by them of their earlier insistent tolerance of public nudity in the service of artistic expression. Particularly instructive for me was the fact that I had adapted this revised “scenario” from Aristophanes’ The Clouds, for it had been an apparent toleration by his “liberated” son of incest which had provoked an elderly Athenian in that play to move vigorously against philosophic innovators. Indeed, it was reassuring as well as intriguing to discover, across two and a half millennia, how sound an inspired diagnosis of morality can be.