George Anastaplo

September 12, 2011


            Much has been made in this country of the tenth anniversary of the September Eleventh attacks in New York City and Washington, D.C. Perhaps this can inspire us to do (and to say) something appropriate as well about the nine-hundredth anniversary, in 2015, of the proclamation of Magna Charta. Should not reminders of the spirit, if not also of the text, of Magna Charta (which we are studying in this seminar) illuminate what we are saying these days about “September Eleventh”?

The authority of Magna Charta is reflected in how it could be used, by Alexander H. Stephens, the Vice-President of the Confederate States of America, to justify Southern Secession. Stephens, in his “Corner-stone Speech” of March 21, 1861 (in Savannah, Georgia), invoked Magna Charta in this fashion:

[Our] new constitution, or form of government, constitutes the subject to which your attention will be partly invited. In reference to it, I make this first general remark:  it amply secures all our ancient rights, franchises, and liberties. All the great principles of Magna Charta are retained in it. No citizen is deprived of life, liberty, or property, but by the judgment of his peers under the laws of the land.


This, and much more, he could say in a speech that argued for the natural right of his people to hold Africans in slavery, a servitude which (he further argued) was good for the enslaved as well as for the enslavers.

Among the principles invoked in a document which made much, in its thirty-ninth “chapter,” of what we know as Due Process of Law, is that of Majority Rule. It is evident throughout Magna Charta that the passions naturally aroused by what the King had done should be held in check. Discipline (including respect for long-established principles and entitlements) is called for if the most effective response to atrocities is to be developed, a lesson that is quite applicable to the September Eleventh challenge in this Country.


            Discipline includes an insistence upon seeing things as they truly are. One failing here can take the form of not taking threats seriously enough. That could be seen, for example, in the illusions that led to the determined appeasement of the Nazi threat resorted to in Europe in the 1930s.

Another failing can take the form of making threats out to be far more serious than they are. This could be seen, for example, in the public insistence on September 11, 2001, that the United States had just been subjected to “a Second Pearl Harbor.” I was obliged, in a talk to a Loyola constitutional law class on September 12, 2001, to question such an assessment.

After all, it could be pointed out, the Pearl Harbor (and related) attacks, on December 7, 1941, had destroyed much of the Pacific fleet of this country. Those attacks had been made by a powerful nation that already controlled much of Asia. And it was a nation allied to a power that already controlled much of Europe.


            A constant concern, during the decade following upon September Eleventh, should have been that a Sense of Proportion be maintained among Americans. This is not to deny that the plot to use airliners as manned missiles was fiendish. Retaliation was inevitable against those believed immediately responsible for such an atrocity.

But even fiends have motives. And it is only prudent to try to figure out what their underlying grievances are. Such grievances, it should be expected, would continue to move many others elsewhere who might never want to resort to what was done on September Eleventh.

Thus, one consequence of the way we have responded to atrocious assaults is that we have not adequately understood what happened on September Eleventh. And this has hampered us in what is needed for the long-term—a reliable sense of what moves other people. It is only prudent, in any event, that we should be aware of whatever misconceptions (especially about us) may fester among (and, indeed, poison) peoples elsewhere.


            I ventured to predict, the day after the September Eleventh attacks, that the people who had mounted these assaults would not be able to do soon anything significant in this country. Of course, I recognized at that time (as in three memoranda sent to the Federal Bureau of Investigation) that commandeering one or two more airliners may have been in the original plot. But it was obvious that airliners could not be commandeered thereafter as they had been that day, whatever may be done here or there to destroy individual airliners.

That is, the limitations of our opponents have never been adequately sensed. Instead, a peculiar fearfulness possessed, for a decade, the most powerful nation in the world. Something of this kind of misreading of the evidence could also be seen, during the Cold War, in the widespread failure to recognize how vulnerable the Soviet Union was to collapse.

The heartless men who organized the September Eleventh attacks must have recognized, early on, that they could not expect to be able to do anything comparable again. Indeed, they must have recognized, also early on, that all they could reasonably hope for was to avoid being located and destroyed by agents of the United States. The most useful weapon available to them for a decade was an effective concealment which could make them seem, to the uninformed and the apprehensive, far more dangerous than they could ever again be.


            The more perceptive among the original September Eleventh plotters may have sensed, early on, that the United States was apt to hurt itself more thereafter than it could ever again be hurt by others. This may be one consequence of our treating the original assaults (in New York and Washington) as acts of war rather than as crimes. When the war-mode is resorted to, self-restraint is far less likely, especially if the enemy has been blatantly dishonorable in its initial assaults.

But the original plotters were not of the character required to understand why it would be particularly harmful for the United States to try to do what it did against supposed enemies. That is, such plotters could not appreciate, for example, that it is far better to be wronged than to wrong others. Thus, they would not be able to recognize it as a sign of weakness that one acts unjustly against others, even if one can do so with seeming immunity.

Particularaly noteworthy here are the deaths we have been responsible for during the past decade, many more than what we suffered on September Eleventh. Indeed, there may be a callous thoughtlessness evident in the growing use by us of drone aircraft (or guided missiles) in recent years. It cannot be a surprise that many innocent bystanders are likely to be killed thereby along with those who may deserve to be targeted by us.


            Also noteworthy are the many premature deaths all around us that do not have the resources devoted to their prevention that have come to be lavished on “homeland security.” It is reported, for example, that four hundred thousand deaths a year are caused in this country by smoking. Warnings on packages, no matter how graphic, do not seem to discourage the foolishness of those smokers who will eventually run up tremendous expenses in treatment that cannot (in many, perhaps, in most, instances) be borne by them alone, expenses for which the community should be able to require tobacco companies to compensate the taxpayers who are thus relied upon.

Particularly intriguing here are the attitudes (including the  rationalizations) of the respectable men and woman who not only make their lethal “coffin nails” readily available, but who market them most effectively. The glossy brochures (pockmarked by ever more graphic Surgeon General cautions) mailed out routinely to recent college graduates expose something ugly in the market economy upon which we do have to rely. The shamelessness of such campaigns is both “unbelievable” and all-too-familiar, as are, of course, the glamorous pictures (as of President Franklin D. Roosevelt on the cover of a 2005 Smithsonian National Gallery publication) that show celebrities sporting cigarettes.

Whatever additional resources the anti-smoking campaign (as well as the relevant medical services) could put to good use, outright prohibition of the distribution of tobacco is not likely to be a prudent remedy for these ills in our circumstances, just as it might not be with respect to narcotics and to alcohol. But should not the executives of tobacco companies, whose stock is dealt in by respectable brokers, be at least recognized as pariahs by all (including smokers) who know what they are doing (just as the dealers in slaves were so regarded by respectable slave-owners in the pre-Civil War South)? A modern-day John Brown might even be tempted, in his righteous madness, to unleash drone missiles against the corporate headquarters of the more conspicuous tobacco companies.


Then, of course, there are the gun-related deaths to which we, as a modern nation, seem to be uniquely accustomed. Our “productivity” here seems to exceed what is seen in all other countries combined that are considered to be in an advanced stage of economic development. And yet the resources (spiritual as well as physical) devoted to dealing with this epidemic are far fewer than what are routinely accessible for Homeland Security.

What is routine here, instead, is how we are accustomed to what “has” to be put up with, treating them as almost unavoidable chance developments. Thus, a Chicago newspaper can run every Thursday a map of homicide sites in the city (sometimes almost a dozen) during the preceding week. Most of these killings are by guns.

Particularly intriguing, by the way, is the insistence that there is a constitutional right that has to be respected here. This “scholarship” is reinforced by the finding of those who seem to insist as well that the more guns there are distributed among us, the safer we all are. It can be wondered what the comparable arguments are with respect to the tens of thousands of highway deaths we have come to be reconciled to annually.


            The practical response to any of the routine massacres to which we are accustomed is not that of the pacifist. But the resort to force, even when required and justified, can be self-defeating if not properly disciplined, as was seen in the overreaction in the Summer of  1950 to the invasion of South Korea. That overreaction on our part (as we drove north well past the Thirty-eight Parallel) led to a Chinese intervention that did no good for any of the parties involved.

But the risk of misuse of force is hardly likely to lead to any comprehensive pacifism among a people. Rather, a major concern should be with how decisions are made about the use of force by the community. It was once believed in the United States that the decision to go to war should be made by Congress, thereby making it less likely that an adventurous Executive might indulge in self-aggrandizing heroics.

We can return to Magna Charta with its insistence, as it draws to a close, that a majority of the relevant band of barons should suffice to direct critical measures thereafter. This understanding of “parliamentary” protocol should be kept in mind as we contemplate how the Senate of the United States has allowed itself to be paralyzed in recent decades by irresponsible minorities. Properly self-confident majorities should be able to assert themselves effectively when needed.


            Of course, force alone cannot usually suffice in dealing with the more serious challenges to any community. When the origins of such challenges are worldwide in origin, the good will of others can be critical. It is only then that effective surveillance, in the long run, is likely to be maintained.

That good will is more likely to be developed and continued when it is evident that force alone is not what is relied on. Here, too, Magna Charta can be instructive. Longstanding rights and duties were invoked and depended on in 1215.

Victims of terrorism can eventually forfeit the sympathy naturally aroused everywhere on their behalf whenever dubious measures are repeatedly relied on in the name of self-defense. Indeed, such measures may themselves come to be regarded as a kind of terrorism. And this may somehow even come to be regarded by all too many as partial vindication of those who had intitiated the conflict that has become so troubling.

Constitutional Law Seminar

Loyola University School of Law

Chicago, Illinois


[See, for the running commentary by George Anastaplo on the responses by the United States to the September Eleventh assaults, 29 Oklahoma City University Law Review 165-382 (2004), 4 Loyola University of Chicago International Law Review 135-65 (2006), and 35 Oklahoma City University Law Review 625-851 (2010).]

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