by George Anastaplo
We are now one-third of the way through our tenth year since the September 11, 2001 “terrorist” attacks in New York City and Washington, D.C. And we are now in the first fortnight of the shooting of nineteen people in Tucson, Arizona (on January 8, 2001). Among the nine killed on that occasion were the Chief Judge of the Federal District Court in Arizona and a nine-year-old girl, charmingly interested in politics, who had been born on September 11, 2001.
Robert Burns suggested that it would be salutary for us to see ourselves as others see us. But also useful, I venture to add, is to see others as we see ourselves. This can be particularly instructive as we notice what we often do to others without stopping to think about how we regard such things when done to us.
We have had a score of people gunned down in Tucson, an assault that the President of the United States could immediately identify as “a tragedy for our entire country.” This assault was dramatized, for the public at large, by the critical condition of the Member of Congress who was evidently the initial target of an obviously demented gunman. But we do not generally recognize that comparable body-counts have resulted from hundreds of assaults by us and our allies in Afghanistan, Iraq, and Pakistan during the past decade, assaults which have all too often included victims as innocent as those gunned down in Tuscan ten days ago.
The assaults that we and our allies have been responsible for in Afghanistan, Iraq, and Pakistan have not been conducted by demented agents. Nor can there be an explanation for such violence offered in the terms used (perhaps prematurely) by a distraught Arizona sheriff (Clarence Dupnik) during that dreadful weekend in Tucson:
When you look at unbalanced people, how they respond to the vitriol that comes out of certain mouths about tearing down the government. The anger, the hatred, the bigotry that does on in this country is getting to be outrageous. And unfortunately, Arizona, I think, has become the capital. We have become the mecca for prejudice and bigotry.
It is reported that the Congresswoman who had been gunned down had recently expressed similar concerns after “her Tucson office [had been] vandalized” and someone had showed up at an earlier gathering of hers with a weapon:
In an interview after her office was vandalized, she refered to animosity against her by conservatives, including Sarah Palin’s decision to list [her Congressional] seat as one of the top “targets” in the midterm elections. “For example, we’re on Sarah Palin’s targeted list, but the thing is that the way she has it depicted has the crosshairs of a gun sight over our [Congressional] district. When people do that, they have to realize that there are consequences to that action.”…After the [recent] shooting Palin issued a statement expressing her “sincere condolences” [to the families of all the victims.]” [Amanda Lee Myers and David Espo, “U.S. Rep Shot in Head, 6 killed,” Chicago Sun-Times, January 9, 2011, p. 2A]
It should not be suggested that any respectable politician or political movement in this Country hoped for a Tucson-style massacre. The immediate source for this disaster was obviously a madman, who may not have been moved significantly by any contemporary “political” discourse. Such insanity is bound to be “available” and largely unsupervised in the modern communities that we have become accustomed to.
However, it has been suggested that any madman among us (especially if he is suicidal) can easily wreak havoc because of the weaponry readily available to him, especially in the form of a machine gun-type pistol that can be used to gun down dozens of the unwary before anyone else also present (even with a gun) can intervene. Complicating the assessments of this “situation” are the reports that the Congresswoman struck down on this occasion had publicly boasted both that she too had such a pistol and that she knew how to use it. This is the kind of talk we can expect, and that we have to contend with, when there is the remarkable (perhaps even unique in the Western World) “gun culture” that we have long had to become accustomed to in this country.
The President’s remarks, at a Tucson memorial service a few days after the massacre, have been acclaimed across the political spectrum. It is hoped that such remarks can help tone down the “political rhetoric” (or, rather, the anti-political rhetoric) in this Country. People at large seem to be prepared to believe that this will happen.
What has already happened, of some note, was the effort made by several people in that Tucson shopping center to subdue the gunman, especially when he attempted to re-load in order to continue his attack. Even if he had had two such pistols perhaps he could have been kept from using them. What may be critical in such situations is that the gunman cannot readily believe he can “escape” by killing himself.
The responses of potential victims in Tucson were in marked contrast to what had happened, a few years ago, at Virginia Tech and at Northern Illinois University. Those victims were made even more vulnerable by their efforts to escape, which served as a perverse form of cooperation with their attackers. The more courageous (the more aggressive) the would-be victims are in such circumstances, the safer they are likely to be, so much so that some would-be attackers may be deterred if it is expected that they themselves might become “targets” and even prisoners.
We can be reminded by all this that an underlying (or pervasive) problem in these matters (in assessing what has happened in Tucson or in our recent combat zones abroad) is with respect to the Sense of Proportion. Two dozen victims in Tucson became a national catastrophe even while hundreds (if not even thousands) of our victims abroad may be barely noticed by the American public. It is such a cavalier attitude on our part which has led some to argue that our Iraqi Intervention (since 2003) has served as a recruitment campaign for Al Qaeda.
Critical to any assessment of these and like matters is a Sense of Proportion. A Sense of Proportion very much bears on such jurisprudential considerations as Prudence and Justice. It can help us see and hence to understand what is going on.
Particularly challenging for us can be the case of drone (that is, unmanned) aircraft to strike targets. Such targets can include innocent people that we really do not want to hurt. All this can seem quite peculiar, to say the least, when the military personnel guiding such weaponry are halfway around the world.
Our responses to the shocking September Eleventh attacks were disproportionate from the outset. I noticed this in my first public remarks thereafter, which were the day after to a law school audience. I questioned, that is, the talk we were already hearing that those attacks were “a second Pearl Harbor.”
I have suggested that a reliable grasp of a sense of proportion should help us recognize and address questions of justice. These are questions that do not depend on the legislation of a community. Rather, they are questions that should be considered in developing and assessing such legislation.
Questions of justice bear on the framing of constitutions. Provisions in constitutions for their amendment recognize, in effect, that there are standards that are somehow superior even to the most venerated constitution. Such standards are drawn on, for example, in the Declaration of Independence.
Respect for enduring standards may be seen as well in the deference paid to international law. A dramatic instance of such deference was provided by the Nuremberg Trial of 1945-1946. It can be wondered whether the Soviet judges participating in that Tribunal appreciated what was tacitly being said about their own determinedly oppressive regime.
I have also suggested that a reliable grasp of a sense of proportion should help us be more prudent than we might otherwise be. Prudence permits one to recognize how critical the element of chance can be in the conduct of human affairs. It has to be provided for, especially when one ventures into unfamiliar territory.
Chance can affect who happens to be targeted and to what effect. Thus, a Congresswoman may be one’s primary object as the assailant, while others one knows nothing about may turn to be the most critical victims. Thus, also, “Al Qaeda” may be our primary object in one military strike after another, but others may be so affected as to become formidable (at least implacable) enemies for a generation, however noble our intentions may have originally been.
The workings of chance may be seen as well in what the sudden explosion of a madman in Tucson has done to the long-term interests of an Alaska politician. Thus, the vivid language which may be enjoyed by one’s partisans can come back to haunt one. This may be apart from how decent, and well-meaning, one may really be.
Perhaps the most important consequence of a sense of proportion may be that it can help one understand oneself. Knowing oneself, it should be remembered, was one of the standard commandments associated with the Delphic Oracle. This can be particularly difficult to live up to when one is riding high (especially when one considers oneself invulnerable).
Critical here can be the kind of question that may not be noticed or addressed. Such a question is one that I once had occasion to ask a Greek general who had helped lead (in late 1967) an unsuccessful coup (in the name of his King) against a stifling military dictatorship in his country. The question that had not been provided for on that fateful day (which contributed to the permanent exile of an inexperienced but well-meaning monarch) had to do with the contingency plan for the Second Day if things did not go as expected on the First Day.
A sense of proportion, I venture to add, should help moderate the claims, rooted in part in a curious sense of vulnerability, about the protection provided for private gun-ownership by the Second Amendment. It can be difficult for many of us to grasp how fearful many manly types among us may be. Or is it insensitivity on my part, for example, that has left me without a handgun since I last served as Officer of the Day on my airbase sixty years ago and without any other such weapon since I volunteered to ride “shotgun” (with a rifle) in a truck taking supplies from our air base to our Embassy in Cairo, Egypt during a riot in that city.
A proper sense of proportion should call into question the Security measures insisted upon in this Country since September 2001. Particularly instructive can be the remarkably expensive (and ever more offensive) airport measures relied upon. Once airliner cockpits had been properly secured from forcible entry by passengers, the resources devoted to such security with respect to passengers could be put to much better use elsewhere.
Critical to the assessments that should be made of what is both feared and put up with is a proper recognition of our mortality. An undue fearfulness can be both demeaning and debilitating, however vigorous the measures resorted to may seem. One sad consequence can be the corruption to those with whom one is allied, as may be seen in what happened to a talented British Prime Minister during the determined push for the Iraqi Intervention in 2003.
A sense of proportion can help shield one from the determined fearfulness that sometimes seizes a community. This need may be seen in the proclamation, by a very learned United States Supreme Court Justice in 1919, of the remarkably-mischievous Clear and Present Danger Test. There was a danger to be confronted then, but it emanated not from obviously ineffectual agitators against that monumental folly known as the First World War but rather from the Authorities who were neither as thoughtful nor as principled as they should have been, crippling thereby a self-governing community for at least a half-century thereafter.
These remarks were prepared for a Junsprudence Seminar, Loyola University School of Law, Chicago, Illinois, January 18, 2011. See, on discussions over the years of responses to the September Eleventh assaults, http://www.anastaplo.wordpress.com. The most-recently-published such discussion may be seen in the Oklahoma City University Law Review (2010).