O wad some Pow’r the giftie gie us
To see oursels as ithers see us!
It wad frae monie a blunder free us,
An’ foolish notion. . .
─Robert Burns, To a Louse
Constitutionalism, an established system for a decent rule of law, can presuppose an understanding of how things are done and why. Such an understanding can even make it seem that the prescribed way of “doing things”—“our way”—is instinctive.
One can be reminded of distinctive features of the United States Constitution of 1787, with its grounding in the Declaration of Independence of 1776, by comparing it with the Confederate Constitution of 1861. The many similarities of these two instruments make their differences here and there quite dramatic. One obvious consequence of the changes deliberately made in 1861 is to remind us of the extent to which slavery had been no more than reluctantly tolerated, certainly not endorsed, by the 1787 Convention in Philadelphia.
Less obvious, but perhaps even more significant in our present circumstances, is what the changes made in 1861 by the Confederates in Montgomery tacitly recognized about the nationalizing tendencies in the 1787 instrument. Those 1861 changes can usefully be understood (and especially by us today) to have recognized as well the power (if not also the duty) of the Government of the United States to “promote the general Welfare.”
I have undertaken, during the past decade, three “projects” which can remind us of the dreadful things that can happen, at least in the modern world, when the constitutional proprieties are not respected. A particularly horrible instance of this, of course, is what happened in the European Holocaust of 1933-1945, something illustrated in the course of a dozen conversations I recorded in the Year 2000 with a Lithuanian Jew, a gifted mathematician (conversations which I have been publishing seriatim).
My second project has been to provide a running commentary, since 2001, upon our responses to the dreadful September Eleventh assaults. Some five hundred pages have thus far found their way into print in law review collections. It can be instructive to remind oneself, years later, of how one regarded challenges as they appeared from time to time.
There has also been developed, since 2005, a projected ten-volume series of what I have called “constitutional sonnets.” One can, upon subjecting oneself to such a discipline, be reminded both of the constitutional treasures always available for discovery and of one’s inevitable limitations as a truly innovative discoverer.
Tone-deafness with respect to the constitutional proprieties may be encountered in the running commentaries that journalists are permitted by their editors (and by the public) to publish about the evidence presented in political corruption trials they cover. Thus, there have been routinely provided, in the local press, interpretations of trial evidence that is presented by journalists as revealing the sort of shady practices typical of Illinois politics, interpretations (devastating for defendants) that almost certainly come to the attention of the not-sequestered juries.
Tone-deafness with respect to the rules of war may be encountered in our resort to drone-missile strikes against villainous men distant from a traditionally-recognized battleground. It could even be believed, without any resulting public protest, that the alleged leader of the September Eleventh assaults had been sentenced to be killed at once whenever encountered (even if he could be taken alive). And such a dreadful sentence could be carried out, it seems, with our President, Vice President and Secretary of State watching “in real time” (halfway around the world) with evident approval.
Tone-deafness with respect to the solemnity of death—a deafness exhibited in monstrous extremes among the Nazis—may be encountered in the passionate political protests that have been indulged in here and there, deliberately disturbing military funerals in this country. The United States Supreme Court, with an invocation of the First Amendment, has exhibited itself here to be as peculiarly “principled” as our more permissive newspaper editors, recalling in effect the 1971 juvenile ruling by the United States Supreme Court in Cohen v. California.
We should be thankful that summary executions of notorious villains were not routinely relied upon at the end of the Second World War. The 1945-1946 trial at Nuremberg of the surviving Nazi leaders was a remarkable and quite instructive tribute to the rule of law, even if the principal judges on that occasion included a representative of the Stalinist regime (and even if the executions carried out thereafter released the executed from decades in which to contemplate their awful deeds).
Our increasing use of drone-missiles to kill, far from any conventional battlefield—to kill men evidently identified (but not necessarily publicly) by someone in our government as wicked, should be deeply troubling. It can be wondered whether we truly hear what we are saying when we attempt to justify such measures (however careful we may try to be to limit the evidently inevitable “collateral damage”). We can be reminded here of the determined obliteration bombing of cities we resorted to during the Second World War, a practice (I confess in passing) I never heard any of us (as officers in the Army Air Corps) express any reservations about.
Our current triumphalist acceptance of these drone attacks comes at a time when we ourselves can become quite indignant about reports that the Iranian government has attempted to have killed in this country the Saudi Arabian ambassador to the United States. This is the same government in Teheran, by the way, that seems to have been the principal beneficiary in the Middle East of our determined Iraqi Intervention of 2003.
We have long been dubious about the efforts routinely made by regimes which employ assassination squads to eliminate “enemies” abroad. Both the Nazis and the Stalinists were believed to have done this, with the 1940 butchery of Leon Trotsky in Mexico a particularly gruesome example.
It can be a matter of chance, of course, what one learns both about the deadly doings of one’s government and about the assessments made by one’s fellow-citizens of such doings. Thus, one may not be in a position to hear all that might be said in defense of a particular decision. Even so, one can venture to voice one’s opinions about such matters in the hope that other equally conscientious citizens will correct the opinions one has presumed to offer.
One also hopes, of course, that one’s fellow citizens will make proper use of what is sensible in what one says from time to time. In this way one properly collaborates with one’s critics in composing a glorious constitutional symphony that truly promotes the general welfare.
Second Annual Constitutional Law Colloquium
Loyola University of Chicago School of Law
October 21, 2011