Teaching Law: Training, Education, and Thinking

I don't always agree with Stanley Fish, the former English professor and noted literary theorist who morphed into a law school professor a number of years ago and currently resides temporarily at Yale Law School. Fish, in fact, like any other deep and serious thinker, has sometimes changed his mind about important issues (this was especially true in his literary theory days) -- and so, by definition, one cannot agree with everything he has said. But, as Emerson told us, "a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Real thinkers -- rather than persons preoccupied with their image or persona, like those "little statesmen," or those who adhere blindly to a preset, inflexible ideology, like Emerson's "divines" -- go where the mind leads and are fully willing to change their minds when circumstances, reasons, or arguments prompt a new way of seeing. Our politicians would do well to heed this. In any event, Professor Fish could be classified as a thinker worth attending to -- even if not always to agree.

But this time I agree with him. In a column in The New York Times this week, Fish took issue with those who loudly criticize legal education for its failure to produce lawyers who are "practice ready" right after they pick up their diploma. This critique has become increasingly common in recent years, though the fact has been generally acknowledged for decades, and it lies at the heart of the current attack on law schools for saddling their graduates with huge debt that does not seem to be justified by the practical skills and knowledge they learn in their classrooms (see, for example, this article from the Times). I have myself suggested that practical computer/technological skills should be taught as part of a decent legal education because lawyers must enter a practice world in which such skills are absolutely necessary.

Fish disagrees that the point of a law school education is practical; it is, rather, to teach an understanding of the enterprise of law and all that that means. "The practice of law," he says, "is more than a technical/strategic exercise" that can be taught by schools or law firms as if it were a bag of "tricks of the trade." Instead, the marshaling of "doctrines, precedents, rules, and tests" that a lawyer engages in on behalf of a client "takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor."

Fish thinks that such a view of the law -- as a purposive enterprise caught up in larger questions of power and authority, legitimacy and rights, and so on -- should be the focus of legal education. Such a focus does not preclude "training" in a body of skills and background knowledge (e.g., computer/technological competence), but it does mean that such training must take place within a context in which "education" rather than "training" is the goal, a context within which the overall project is conveyed, questioned, and engaged. I think Fish is right about this. You cannot teach someone to be a good baseball player merely by training him to swing like Albert Pujols, or to throw a curveball or two-seam fastball, or how to field a groundball or execute a crow-hop for a throw from the outfield. Someone could have all those skills but if he doesn't understand the purposes of the movements, the rules of the game, the overall design of the enterprise we call baseball -- if he doesn't know it was a game into which the skills he's being taught fit and serve distinctive purposes --  he will not be a good baseball player. (The philosophical among you will recognize shades of Wittgenstein and Searle here; Fish himself cites Searle.) So a proper legal education involves not just teaching some practical skills -- those are important but they can be picked up more easily in actual practice than in a school environment. In addition, and centrally, a proper legal education entails the location of those skills within the larger ongoing project that is the rule of law in the United States.

That means that the bulk of the study of law in school should be devoted to principles, to basic questions and issues, and to the role of law in a constitutional democracy. Traditional legal education may have overemphasized these topics to the point where the education was abstract and disconnected from what a lawyer would actually be doing once out the law school door, but a legal education that ignores these topics does not deserve the term "education," being only a training in the doing of practical tasks, not much different (though considerably more expensive) than the training of an auto mechanic. Fish is right: law students should be made to read, reflect upon, and engage with the ideas of Hobbes and Locke, Holmes and Cardozo, Bentham and Mill, Hart and Dworkin, and so on -- for those ideas, and our understanding of them, lay the foundations for the enterprise of law within a democratic republic. Law is a profession, not a trade -- and its practitioners deserve an education fitting a profession.

It should be remembered that, after obtaining their law license, most lawyers are required to do continuing "education": a certain number of hours sitting in a hotel meeting room learning about the nuts and bolts, the tricks and strategies, of practical lawyering. Continuing education almost never asks the larger questions (though I have found that when you do ask those questions in a CLE seminar, many lawyers respond quite positively). So if lawyers are to gain the knowledge and understanding Fish thinks important to the continuance of a real profession, it will have to be the focus of their coursework in law school.

Fish concludes by saying that "the emphasis on practical short-term payoffs has already laid waste to the traditional project of the liberal arts, which may not survive. Is the law next? The law is surely a practice but it is also a subject, and if it ceases to be a subject -- ceases to be an object of analysis in classrooms and in law reviews -- its practice will be diminished."

Right again. A number of factors have conspired to put liberal arts education in the United States in jeopardy. Sadly, "practical" programs designed to garner a job for the graduate, frequently in fields that once did not require a college degree (and really don't need to do so now) have nudged out liberal arts courses at many colleges and universities. Even when those schools do require exposure to the liberal arts, as in English requirements, the focus tends to be on reading and writing skills, and not with the development of the educated person's working knowledge of Shakespeare or Chaucer or Joyce or Eliot (let alone Milton or Dryden or Pope or Johnson). Recent years have seen the proliferation of so-called "masters-level" programs in a host of practical fields, programs that offer skills training and eschew theory; they even dispense with those long and detailed reading lists, designed to give the student a deep grounding in the history and philosophy of the field, that characterized traditional graduate education. Of course, such graduate programs are simply responding to the inflation of degree requirements: the same job that once required no more than an undergraduate degree, if that, now requires a masters degree, not because the real demands of the job have changed but only because employers and others have upped the ante in terms of the required credentials. Increasingly, we are a society that wants to see the practical "use" of whatever we teach our students; to a great extent we have lost the ability to see the importance of any education that does not have immediate cash value.

This myopic view of education -- as training for the workplace, rather than the public square, as conveyor of practical skills rather than the materials of real thought -- threatens legal education, as Fish makes clear. Clinical and semester-in-practice programs have a role to play, to be sure, but they should not be allowed to replace either the traditional, intellectual curriculum or the elective courses that push students to ask the deeper, more fundamental questions about the meaning and importance of the rule of law in constitutional democracy. To the extent that law comes to be seen only "as a means rather than an end, as a tool for solving problems rather than something of interest in its own right," we all suffer. Such a focus narrows our vision and cabins our ability to recognize the larger importance of law in a decent society.

Hannah Arendt observed that the most frightening thing about Adolf Eichmann was that he was quite good at mastering the practical skills necessary to perform his job, but he did not think. He never took a look at his life and his choices, never examined what he was doing with a critical eye, except perhaps to ask whether he was being efficient enough or using the proper tool or strategy. If we reduce legal education to the mastery of those tools and strategies, if we make it a practical education designed to equip the student for day-to-day law practice, if we belittle or diminish or eliminate consideration of the meaning of law and justice, or the role of law in a free society, we risk creating a host of little Eichmanns -- masters of tricks and tactics but unable and unwilling to think deeply about the larger import of what they do. And in the process, we will seriously damage our profession and eject it from its central place in our constitutional democracy.

Computers and Competence

I have a friend who longs for a return to classical education -- a restructuring of education to encourage a reading of the Greek and Roman classics, often in the original languages, taught in the old, traditional way. He believes that such an education develops the kind of memory that is necessary for well-being, and lays the groundwork for learning and the ability to think that is crucial to mature human being.

There is much that is attractive in this vision of education and it may well be that my friend's reconfiguration of education would have a positive effect. But my friend goes further. He sees the root of many of the evils of contemporary education not just in the loss of classical language training, not just in the substitution of the latest novel for a reading of Plato (or even Milton and Shakespeare), not just in the resort to Wikipedia to avoid hours spent in the library -- he is highly critical of computer technology, arguing that all our labor-saving devices save the wrong sort of labor: they save us the labor of finding answers to our questions by thought and extended research; they relieve us of the work involved in remembering facts and details; they allow us to skip the crucial step of putting our ideas and our facts together into a logical structure before we start writing; they mean that we don't have to know how to spell, or understand the rules of grammar and syntax, for they will correct any mistakes we make automatically, thereby relieving us of the responsibility to think through our work. Overall, he insists, computer technology -- from word processors to the Internet to the smartphone -- prevent the development of sound mental habits and diminish us as human beings. In his modern day Platonic Academy, he would prohibit the use of these technologies.

Now this is where my views of sound education and my friend's diverge. Computer technology is part of our contemporary world. If we are to educate citizens who will take an active part in the ongoing project that is our constitutional democracy -- even if we only want to prepare young people to take their places in today's economy (certainly not what I think education should be about, but it certainly is the orthodox view today) -- we must give them computer skills and the thinking abilities necessary to use, intelligently and effectively, the technologies they have available to them. Competent humans cannot engage with their world today or tomorrow without considerable exposure to, familiarity with, and mastery of computer technology.

That last sentence applies, I believe, to lawyers. Competent lawyers cannot engage with their world and their clients, and they cannot work in the courts, without considerable exposure to, familiarity with, and mastery of computer technology. For the past couple of years Jim Knapp and I have been suggesting to Vermont lawyers that unless they understand modern computerized technologies -- from electronic data structures to online storage and management programs, to cell phone technology, to Facebook and Twitter -- they may well be "professionally" incompetent. After all, this technological world is the one in which our clients live and work. It is the world out of which all of our future clients will come, for they will have grown up with computers and all computers do. They will have been educated in schools that make extensive use of computers and online resources, almost to the exclusion of other tools and resources -- schools quite unlike those my friend would like to see established. Most of these future clients will be active in the online world, using contemporary social media for both personal matters and business, and using less and less paper as the years go on (meaning that all their records will be in electronic form).

Indeed, a strong case can be made that in certain areas of practice, lack of fairly detailed knowledge of the latest technologies means that a lawyer is ethically incompetent in violation of Rule 1.1. That case has been made by ESI expert Ralph Losey in a recent blog post. Losey tells us that trial lawyers have a "dirty little secret": the world has changed so fast in recent years that most trial lawyers have not kept up." As a result, most are incompetent to handle electronic evidence, including discovery of their client's documents." Worse still, the majority of trial lawyers, Losey tells us, "are in complete denial of their incompetence." They choose to bury their heads in the sand, hoping that the need to do electronic discovery won't come up in their cases, or imagining that they can just hire someone to do the necessary work without needing to know much about what those contractors are doing.

The trouble, of course, is that our clients have computers and are storing their information electronically. This is especially true of our business clients, but increasingly of our individual clients as well. And lawyers' lack of knowledge about electronic information raises the cost of electronic discovery: if you don't know what exactly you're looking for or where to find it, let alone how, you cast a wider net, wander down dead-end alleyways, pay through the nose for "expert" help, all to the cost of your client or the client on the other side.

Losey notes that most lawyers and judges are not techie-types who find the marvels of the latest computerized, whiz-bang gadgets a source of fascination. As a result, they tend to keep their distance. Anyway, for many years while documents were being created electronically, they were frequently not being stored electronically, especially in law offices; rather, they were printed out and stored as paper documents. So it was unnecessary to delve into the mysteries of electronic data-keeping and the arcana of electronic filing, data storage, and associated occult sciences.

Not anymore. To the extent that lawyers and judges are not technologically sophisticated, argues Losey, they may to that extent be less than competent. For today, documents are not being printed out and stored as paper -- they are being stored electronically, in databases, on servers, in the cloud. That, at least, is the way the rest of the world runs, even if many law offices still have not gotten there. The law is a conservative profession, of course, as many have noted (including Losey), and lawyers err on the side of carefulness and suspicion when it comes to the latest technology. That is good, to an extent. But conservatism can become archaism, and we are rapidly moving to a time when refusal to use the computer technologies of the day will seem musty, obsolete, archaic -- a day when our clients will expect us to be "up" on the latest means of communication and data storage. That day is coming soon, very soon. In fact, it is here now in most places, in most areas of life, in most businesses, in most personal matters, for most of those who need legal services. Losey insists that to serve those clients -- indeed, to serve any clients, even those who themselves do not inhabit an online, in-the-cloud, in-front-of-the-screen environment -- at least in the litigation context, competence means being technologically sophisticated, no matter how much that may go against the grain.

Increasingly, ethics panels around the country are recognizing that lawyers should be able to enter this modern and frequently changing world without fear. Those panels are concluding that ethical rules laid down when files were in cabinets, letters were typed and mailed, and phones were attached by wires to the wall no longer fit the contemporary practice environment and must be changed or, at the very least, reinterpreted using reasonableness as a standard. (See, for example, North Carolina Proposed 2011 Formal Ethics Opinion 6.) If the ethical objections are removed -- as they should be -- lawyers will no longer be able to use the rules to excuse their lack of technological sophistication. In fact, the rules themselves may soon be understood -- and should be understood -- to require knowledge of the technologies that pervade the relationships our clients have with the human world around them (their friends, their transactional partners, their opponents at trial).  

Law schools have come in for their fair share of criticism in recent months, but Losey thinks it is appropriate to add one more complaint to the pile: law schools are falling far short of their obligation to prepare new lawyers for the world in which they will actually work because they only train students in "paper evidence and paper discovery." Law schools, with a handful of exceptions, do nearly nothing to prepare future lawyers for the real demands of trial practice (let alone transactional practice). As a result, students graduate "unprepared to handle the ESI where the truth of past events is now stored." Still one more reason to re-think how legal education is currently structured. Law schools (as well as bar associations) have an obligation to teach new lawyers (and old lawyers) about technology; not to do so is to foster incompetence. And here we can return to my friend: good education requires providing students with the tools and skills needed to be competent participants in today's world, and familiarity with a wide range of computer technologies, tools, and resources is essential to such competence.

Excelling at Mediocrity?

A provocative opinion piece in the Harvard Business Review last week asked the question "what is America still the best at?" The answer, surprising from the pages of a mainstream, establishment, pro-business publication, was that America excels at mediocrity. The author, Umair Haque, quickly notes that he is not anti-American, and claims that he would love to hear what other people think this nation is still good at. But his own view is bluntly clear. And, viewed through the lenses of the financial-business complex, he may have a point.

Haque suggests the following thought experiment. Imagine that you are "really, really rich," someone perhaps richer than "the routinely opulent 1%," maybe someone in "the eye-poppingly decadent .01%." What part of your life would be American? Haque suggests there may be nothing. You'd probably "drive a German car, wear British shoes and an Italian suit, keep your savings in a Swiss bank, vacation in Koh Samui with shopping expeditions to Cannes, fly Emirates, develop a palate for South African wine, hire a French-trained chef, buy a few dozen Indian and Chinese companies, and pay Dubai-style taxes." Is this right? 


I imagine that to the extent one defines success in economic terms it is. Haque is surely correct that on all these fronts, American products and places are not at the top of the heap. And one should expect that a writer in the Harvard Business Review would see the world in terms of money and goods. It is also true that this is exactly how many analysts of the American situation evaluate where we are as a nation. It is to a great extent exactly the economic features of American capitalism that people all over the world -- from illegal immigrants to citizens of nations just emerging from under dictatorship -- look to when they think of the United States. In the eyes of so many -- writers and columnists, critics and friends, politicians and voters -- it is our economy that gets the most attention; for them, "it's the economy, stupid." To a disturbing extent, that is the way most American citizens evaluate their nation, the performance of their politicians, the value of their lives.


But surely there is something wrong with this. Doesn't this focus on money, on economic success, on business and products, miss much that helps define America? After all, if you want economic success -- at least for the benefit of some (and that is about all we have really achieved in the United States, after all) -- there could be no better place to live than contemporary China. But how many of us -- even how many of our money-obsessed fellow citizens -- would really trade the sputtering economy of the U.S. for the boom of China? For, while far too many of our fellow citizens fail to take notice of these facts, along with the boom in China serious restrictions on political liberty: free capitalist trade is hedged round by major limitations on what you can say, what you can read, and what you can use political processes to achieve -- just ask Google. In economically thriving China one gets what scholars call rule by law rather than the rule of law. Constitutional democracy, which with all its flaws, protects a range of freedom and provides a level of citizen control over the government, is totally missing in China. 


The point is that where the United States really excels, where it is exceptional rather than mediocre, has to do with the fundamental principles and practices of constitutionalism. This nation is not special because of its economic success; in fact, that very success may cut against the very things that make this nation unique and admirable. Those constitutional principles and practices that make up our identity as a nation, as I have argued many times before, are in jeopardy. They are at risk from a pervasive lack of thinking encouraged by many features of contemporary American life. Those principles and practices are belittled (sometimes under the guise of being praised) by talk radio hosts -- and their television counterparts -- who chant and shout but rarely engage with issues or with those who might think seriously about issues. Those principles and practices are challenged by cynical politicians who resist thought and appeal mind-numbingly to the prejudices, falsehoods, and whims that seem to intrigue the electorate. As one commentator has noted, if we are dissatisfied with the politicians we have (and most of us are -- why wouldn't we be?), we must blame that body of people deemed "likely voters," for it is their trivial, biased, thoughtless reactions to which the politicians appeal. Of course, blaming the voters for the state of American politics is in part to blame the victim; the ultimate responsibility for the demise of real politics and its replacement with the circus we see today belongs to many, and it makes some sense to seek out those who benefit from it when assessing blame -- and American voters do not benefit from politics as practiced in the United States today. 


There are other culprits, too. As I have noted many times before, the principles and practices of constitutional democracy are undermined by schools that (claim to) prepare students for the job market but not for citizenship, that place testable knowledge ahead of the dispositions, attitudes, and commitments essential to a democratic republic, that overemphasize math and science to the detriment of those fields of study that really develop the constitutional citizen. And the principles and practices of constitutional democracy are trivialized by pervasive and insistent emphasis on money, goods, commercialism, and success defined in monetary terms. In other words, the very focus on money and material stuff can, when carried beyond the concern for basic decency of living conditions, eat away at the vitals of constitutional democracy -- and has done so.


So Haque's argument, while accurate on one level, illustrates a deeper truth on quite another: the truth that all this worry over economic success, all this preoccupation with money, threatens to combine with other factors to destroy those things at which this country really excels, however perilously. The eighteenth century writers who participated in the founding of our nation had a term for this focus on money, economics, and self-interest: they called it "corruption." And they recognized that when corruption spreads among the citizenry it destroys civic virtue, undermines citizenship, and prefaces the failure of republican government and the rise of tyranny. What Haque doesn't notice is that the real mediocrity that threatens us has nothing to do with suits, vacations, and wine. It has to do with the decline of what was once an excellent constitutional democracy.

Disaster and Community

The floods that devastated so much of Vermont several weeks ago hit my town as well. Our river turned into a raging torrent, as if someone has turned on a spigot upstream. Quickly rising well above its banks, it swept through the valley, rushing down streets, filling up parking lots, inundating houses and businesses, carrying debris of all sorts -- trees, propane tanks, fences, toys, what-have-you -- wherever it went, leaving horrendous destruction in its wake. Many were left homeless, many without a car or other means of transportation. Many do not have insurance to cover the losses. Many lives were irrevocably changed, and in the current economy it is quite likely that those changes are not for the better.

A walk through some of the affected parts of town the next day revealed the extent of the damage. Chunks of paving had been deposited on downstream lawns; parts of the road bed had caved into the river; brand new sidewalks had been swept away like so much dust in the wind; mud and silt covered everything. Detritus littered yards; flower gardens, abloom with the colors of August one day, were in ruins; water, tree branches, and crud filled cars, trucks, mobile homes. Huge crevasses had appeared in the earth. It looked like a bomb had gone off -- or many bombs. Nothing would ever be the same on Water Street, which truly lived up to its name during those horrible hours on a Sunday evening. It is likely that nothing will ever be quite the same in our town.

One of the major events each year in my town is a three-day celebration of Labor Day. Our Labor Day festivities are known statewide, attended by people from miles away. They are a time when everyone comes together to ring out the summer, ring in the new school year, and celebrate the fact that we live in a picturesque town nestled in a beautiful river valley in Vermont.

This year our town mothers and fathers canceled the Labor Day Observances. They asked everyone in the community to help their neighbors harmed, sometimes deeply, by the flood waters. The community came together, not to celebrate and not to mourn, but to work together to clean up and take stock. Spontaneously, groups emerged to organize activities, to convey information, to collect food and clothing and distribute them to the homeless and to all the others who had lost their belongings in the deluge. Work crews -- composed of townspeople, students from the local university, and volunteers from outside the community -- labored from sunup to sundown. The American Legion and a local restaurant worked non-stop to provide food for the needy and for the volunteer workers; others prepared that food, brought in supplies, offered to help in innumerable ways, so that their neighbors could eat. No one waited for either big capital or big government to step in, though many hoped for quick action on the part of major institutions -- for at some point the resources of the local community are exhausted and help must come from outside. A locally run disaster relief center opened on the square and started publishing a resource guide for those in need of help. Soon FEMA was in business at the library and the governor came for a visit to offer whatever help the state could give. But throughout, the spirit of community never waned as fellow citizens did whatever they could to help their neighbors through the crisis. That spirit lives on even today, more than a month later.

The effect so far has been inspiring, a vivid illustration of the strength of community in a state where community is still valued because of the diversity it encompasses rather because of the lifestyles it excludes. Community here is not a lifestyle enclave, but a vibrant multiplicity. I am lucky to live in a real community -- not one of those gated places cynically called communities by their developers or one of those closed places (towns, counties, churches, sects, movements) that celebrate distrust and, frequently, hatred. The existence of vibrant communities is one of the strengths of Vermont, where some of the associational vitality that so impressed Alexis de Tocqueville in the 1830s persists even in the face of its near total demise elsewhere in our country. (This demise has been the premise of numerous studies and analyses, from the interviews conducted by Robert Bellah and his colleagues in the 1980s to the more recent research of Robert Putnam and Theda Skocpol.)

Real citizenship involves being woven into community with others, diverse others not just those who resemble us, others who share a place even if they do not share an ideology. Citizens are ensconced in a cascading set of relationships that range from family and friends, through local communities and associations, to governmental institutions at all levels, through the sovereign people and its polity, out into the world at large. Without a haven in strong local communities, the broader, more far reaching relationships lose their ground and become abstract and shallow. Bucking the unfortunate trend the characterizes our day in our country, Vermont is a place where real citizenship is still possible, if uncommon.

Assassination and the Rule of Law

News of the death of Osama bin Laden was greeted with a range of emotions in the United States -- from relief, to gladness, to jubilation. Much of the commentary has focused on the cleverness of the mission that led to bin Laden's death, on the lengthy investigation and intelligence effort, on the daring raid by Navy SEALs, and so forth. As time went on, some commentators began to raise questions about the legality and morality of going into another sovereign nation with an armed force and killing one of its residents. Justly so, though most Americans do not really want to think about the hard ethical issues involved and no American politician is willing to ask questions that will lose votes come the next election.

The legal status of the assassination of bin Laden should be clear enough: it was illegal both according to international law and according to United States law. Not that anybody is going to be prosecuted. After all, our nation has refused to prosecute those who condoned or carried out torture -- also clearly against international and domestic law, despite the contortions of Justice Department lawyers in the Bush Administration to take "waterboarding" out of the category of "torture." If we are willing to let bygones be bygones when it comes to torture for the sake of finding a famed international terrorist, why not simply extend that allowance to the killing of that very same terrorist? And there is no adequate mechanism to prosecute a nation (or its agents) for a violation of international law of this sort, especially a nation as powerful as the United States. Nor is there the political will or the prosecutorial chutzpah to bring federal charges against those who ordered or carried out the shooting of bin Laden.

What all this blithe illegality says about our commitment to the rule of law is subject to debate. I well-written article in Salon this week by Karen Greenberg argues that the decision simply to assassinate bin Laden rather than arrest him and bring him to justice in American courts reflects an increasing distrust in Washington of our court system. Greenberg argues that, when read along with the Patriot Act, the treatment of Khalid Sheikh Mohammed, the brutal handling of whistleblowers Thomas Drake and Bradley Manning, and the continued use of military commissions and the prison camp at Guantanamo Bay, the story of bid Laden's assassination simply confirms the fact that the rule of law has collapsed in the years since 9/11.

Normally I try not to fall victim to this sort of bold overstatement. In general, I do not believe that the killing of bin Laden suggests that the rule of law is in jeopardy in the United States -- at least not any more than it was prior to the killing. Nor do I think our brash flaunting of international law will ultimately have much effect on commitment to the rule of law across the globe -- that commitment has always been subject to the wishes of powerful nations to do what they want when they want to do it.

But Greenberg does make a compelling case that, regardless of the long-term effect on the rule of law, political leaders in the United States -- and perhaps even more vehemently their opponents -- have lost faith in our court system, either because it is not tough enough on bad guys or because it is not certain enough in its results. The reason they offer to try suspected terrorists someplace other than the sort of courtrooms that handle our more mundane criminal matters quite well every day, is that those courtrooms -- those lawyers, those judges, those juries -- do not guarantee that the alleged terrorist will be found guilty while he sits silently awed by the majesty of the U.S. government and then be punished with extreme severity. The reason not to arrest bin Laden, fly him back to the United States, there to stand trial in some federal court for his crimes, they tell us, is that (unlike proceedings in the Star Chamber) we cannot be absolutely certain, beyond a shadow of a doubt, that he will be convicted and sentenced to death. There are just too many procedural safeguards, too many opportunities for the accused to speak and confront his accusers, too many rules, too many laws, too many court opinions that must be followed on the way to a final judgment. Why run the risk? The reigning mentality in Washington has not changed since spokespeople in a previous administration made quite clear that, while the rule of law is fine under normal circumstances, these are abnormal times calling for quick, decisive, unfettered action to save civilization. (I first raised this issue in the aftermath of the September 11 attacks.)

There are those, even those noted for cultured tastes and thoughtful views on the issues of the day, who suggest that since the deep guilt of bid Laden was almost universally accepted, it made sense not to run the risk of a failed criminal arrest (whether due to the untrustworthiness of the Pakistani government or the bumblings of our own law enforcement people); it made sense not to run the risk of a mishandled prosecution or of bin Laden turning the proceedings into a circus. Since he was guilty, it was simpler and more reliable simply to "take him out." But doing so sets a bad example. In effect, by acting the way we did we claimed something like "might makes right": if you have the power, you can just swoop in and kill the bad guys; there is no reason to go through legal processes. Gang members and military dictators use this logic all the time, and if it is permissible for the United States to act on this logic, it is hard to figure out why it is wrong for Don Corleone or the leader of the Crips or Col. Qaddafi to act on it when they want to eliminate a bad guy -- and, let's face it, that is who they frequently eliminate: real bad guys. If it is permissible for the United States to skip established procedures and just punish (with death) someone assumed to be guilty, it is hard to explain why it is wrong for the playground bully to beat up the kid who stole the little girl's candy. The logic is the same -- the only difference may lie in the utter immunity to being called to account possessed by the United States. But surely, increasing one's might exponentially does not make it any more right, though it may mean one will not have to face any consequences. We spend billions of dollars each year trying to get other nations to embrace the rule of law, but we blithely set it aside when it suits us to do so. Bad lesson all around.

One cannot contend that the killing of bin Laden was a justifiable act of war: first, because in war it is illegal to kill a prisoner if you do not have to to protect yourself -- this was a hit not a fire fight; second, because there is no convincing sense in which we are at war with bid Laden -- there is no legally declared war at issue here. Indeed, there is no isolable enemy against whom to declare war -- bid Laden himself was neither a country nor a representative of one, and so there is no possibility of declaring war on him or his organization. We do not declare war on individual criminals or their gangs, no matter how serious the problems they cause. And we should by now have learned to take with a grain of salt the Bush-era metaphor of a "war on terror." One cannot fight a "war" with an international problem. Wars are fought against other nations. This was a vendetta, not a war.

It was a vendetta because we refused to couch it in the language and practices of the rule of law. The glory of the rule of law is that it is more advanced than the vendetta. We were once convinced that the rule of law is the civilized way to behave -- and that we were civilized. Not anymore. Now that we have so much power, we gladly use it whenever we want something done. Legal processes are cumbersome, slow, public, and uncertain. But that does not mean they are unsuccessful at bringing the guilty to justice. In fact, as Greenberg demonstrates, the criminal justice system has been notably successful at trying and convicting those charged with terrorism -- more successful, as a matter of fact, than the military commissions set up to dodge the legal system. The experience has been that, if you present a good case against someone accused of terrorism, you will win. We trust American law enforcement agents all the time to go to a foreign country, find, and capture (or work with local law enforcement to ensure the capture of) criminals and bring them back to the United States, where they are prosecuted in our civilian courts. We trust our prosecutors and courts all the time to convict and punish wrongdoers. The system works, but we chose to forsake it here.

There is something sexy, I suppose, about those brawny SEALs, with all their rigorous training and their bare-chested willingness to do what they are told -- far more appealing than some boring FBI agent in a gray suit, with her devotion to proper criminal procedures. We are a culture that idolizes many of the wrong things, and one of those things is the ultra-masculine superhero, the Terminator-type. And so, we eschewed the use of highly trained, smart, and routinely successful law enforcement agents, lawyers, and judges -- and juries filled with thoughtful, but unheroic, American citizens. We opted for the Hollywood scenario, rather than the everyday. We chose to spit in the eye of the rule of law.

Who are we? Who have we become? This is a question I ask each year of the students in my American Citizenship course, students who have imbibed huge drafts of Hollywood machismo and the assorted biases that go along with that sort of upbringing. A people defines and re-defines itself over time, creating, and re-creating constantly, its own identity as a people through an ongoing process of speech and action, debate and deliberation. It is because citizens of a constitutional republic should participate in this process of defining and re-defining that I have put so much emphasis in recent posts on thinking -- for thinking citizens will work together to define themselves publicly in ways that engage creatively with their past, their present, and their anticipated future. Thinking citizens are equipped to participate in the ongoing give-and-take of public reason (to borrow a phrase from John Rawls) through which they choose over and over who they will be and how they will live together.

But we are not a nation that does much to encourage thinking or participating with others in defining our identity. The result is that our identity has come more and more to resemble an action hero impatient with fair process; the result has been a process of identification dominated by a few, ignored by most, and characterized by shrillness, silliness, and meanness. We look less and less like the democracy that proudly thought of itself as the shining city on the hill, providing an example of justice, reason, liberty, and equality to the rest of the world. Now we are just the big bully on the hill, bereft of our ideals and infatuated with our might, afflicted with a bad case of what J. William Fulbright called "the arrogance of power."

The American Scholar, Part Two

I have been trying to do some thinking about thinking itself. The justification for what must seem to many to be a bizarre sort of navel-gazing lies in my belief, stimulated by the observations of Hannah Arendt, that good citizenship requires thinking, a habit of stepping back from the fray of daily life and examining things, and the skill to pull that off. I have the sense that this sort of citizenship is in short supply today, even in the professions where one would otherwise find thoughtful people (law, for example). So, what is meant by "thinking" in this civic sense? What does it require? What is it "about"? What consequences does it have? These are not easy questions.


In "The Humanistic Intellectual: Eleven Theses," Richard Rorty draws a distinction between two sorts of intellectuals. The first sort are "busy conforming to well-understood criteria for making contributions to knowledge." They are engaged in what Thomas Kuhn called "normal science." They are caught up in carrying out narrowly defined research programs, and they rarely ask "big" questions. As I have argued previously, though these intellectuals may be "thinking" in the technical, instrumental sense, they are not thinking in the broad, "out of order" sense Hannah Arendt believed to be essential to citizenship in a democratic republic and Ralph Waldo Emerson considered central to the mission of the American Scholar.

The second sort of intellectual in Rorty's scheme are people "trying to expand our moral imaginations." These people read books not in the way of Emerson's bookworm (who treats books as sacred objects in themselves and their authors as demigods), but "in order to enlarge their sense of what is possible and important -- either for themselves as individuals or for their society." Rorty calls these folks "humanistic intellectuals," and they are the sort of people he wants to encourage. They resemble Emerson's American Scholar, though not in every detail. Their distinctive role is to serve as teachers, as intellectual provocateurs inspiring fellow citizens to think. Humanistic intellectuals approach teaching as a process of "stirring the kids up" and their idea of research is to read a lot more books that might help them grow, to change, to become different persons. They instill in their students doubts about themselves and about their social world. They rattle the cages of the complacent. They inspire thought. They can be found scattered here and there around the campus -- though they are much rarer than Rorty imagines. No department or discipline has a monopoly on such characters, certainly not Rorty’s own field of philosophy; indeed, Rorty tells us, humanistic intellectuals are as likely to crop up in law schools as in the humanities or the sciences. They can be found off campus as well -- sometimes within the professions, sometimes among the rich and comfortable, sometimes even in the media -- but these social locations generally do not conduce to thinking as a vocation. 

Emerson argued that thinking demands reflection, a stepping away from daily affairs to develop ideas, a distance from the mundane issues of the day or the current "hot topics" of the political world. He is surely right about this. Thinking, as Aristotle noted long ago, requires a bracketing of the manifold commitments, obligations, impositions, and distractions of daily life; it requires at least temporary satisfaction of quotidian wants and needs, freeing one up to contemplate, to wrestle with ideas. One way of understanding Arendt's claim that thinking is "out of order" is to recognize that thinking can only occur when one steps, if only momentarily, out of the order of daily life.  

This vision helps explain why we have long tended to look for (and to find) thinkers on the college campus or in some similar haven from the storms of daily life. There is, too, a certain historical warrant for this tendency to see thinking as something that can only be done by those removed from the trials and tribulations of day-to-day affairs (Plato, Aristotle, Aquinas, Kant, and Hegel offer examples). Of course, there is plenty wrong with the idea that the campus is an "ivory tower" removed from the worrisome and preoccupying commonplace concerns of human experience; but there is something to the idea that, at least ideally, it can provide a safe place in which intellectuals can think. Perhaps this is why some of the more interesting thinking -- though also some of the sillier forms of dilettantism along with amateurish, abstruse driveling -- can be found in law schools. [One reason to resist the trend toward more "practical" training at law schools is that it will inevitably reduce the amount of actual thinking going on, and deprive students of a chance to witness thinking in action, thus depriving them of the chance to pick up the habit themselves.]

But there are crucial differences between Emerson’s scholar on the one hand, and Rorty's humanistic intellectual or Arendt's thinking citizen on the other. Emerson not only wants his scholar to step outside daily life for a few treasured moments of thought. He contends further that the scholar can only truly pursue his vocation as a self-reliant, isolated individual who refuses to get caught up in the issues of his day and society. I think he is wrong about this. I think his self-reliant, independent scholar is a failure as a citizen, and this failure is a matter of considerable importance. And I believe Arendt and Rorty would agree.

Both Rorty and Arendt talk about thinking in a way that suggests that an important characteristic of it is what we could call an "outward orientation." For both believe that thinking should be turned back toward the issues of the day, toward one's community and one's fellow citizens. Thinking, as they see it, cannot remain a matter of mental processes inside an individual person. While it must start as consideration of things that are "good for nothing immediate," it must soon extend outward. Thinking is a matter of engaging with
where one is, with one's historicity (to use a Heideggerian term), with all those influences that make one's self into the network of beliefs and desires it is at any given time. But to so engage is not only to change oneself (recall that this is why Rorty's intellectuals read books), for after thinking one must re-enter the world, inevitably changing one's surroundings, usually in small but sometimes in great ways. The human person cannot sequester himself away from the world for long, isolated from the cascading set of relationships in which he is enmeshed -- relationships with the world, with one's people, with the political system and governmental system (they are not the same) of one's country, with one's immediate community and one's fellow citizens. We are caught inevitably in these webs. Even Thoreau, out there on Walden Pond so intentionally alone, could not escape these relationships. We are all in positions of citizenship, though most of us are miserable citizens. And thinking, that quality that asks us to step out of our daily order, necessarily improves our citizenship, for it leads to speaking, deliberating, and acting in the world. It presages the projection of oneself back into the world, there to negotiate with others the shifting network of beliefs we create and share with them.   

Emerson seems to have imagined that our nation would fulfill its destiny if only there were enough thoroughly autonomous individuals out there thinking and improving themselves. Thoreau insisted famously in his essay on "Civil Disobedience," that "[i]t is not a man's duty, as a matter of course, to devote himself to the eradication of any, even to most enormous, wrong; he may still properly have other concerns to engage him; but it is his duty, at least, to wash his hands of it, and, if he gives it no thought longer, not to give it practically his support." But neither Emerson nor Thoreau could quite live up to this ideal of pure aloofness. Both felt the need to write about their thoughts, to share those thoughts with their fellow citizens. Emerson traveled around the country giving lectures; he did not hide in his study in Concord, lost in thought. Thoreau refused to pay his taxes as a way to demonstrate his opposition to slavery and the Mexican War -- and then wrote about his reasons, making them public, stepping into the public arena to address his fellow citizens. Even these non-political men, believing firmly that the purpose of thought was to improve oneself no matter what the society may be doing, could not avoid the relationships in which citizens exist.   

So Rorty and Arendt are onto something. Social detachment of the sort Emerson praises is not really possible for long, and so can constitute an ideal toward which to strive in only a muted and uncertain sense. I think Emerson was wrong to think the society would be better off were there more isolated American Scholars around. Encouraging isolation carries the risk that more and more citizens will eschew the public realm, leaving it to the vain, the ambitious, the crass, the power-hungry. It is more likely that isolation will take the form of self-involvement, self-interest, a focus solely on one's own mundane betterment, and one's own entertainment -- to a society of viewers rather than public actors, a society where isolation becomes the locus not of thinking but of passivity and of what Robert Putnam colorfully referred to as "bowling alone." Isolation rarely leads to thinking and re-engagement with others; it just leads to deeper isolation or shallower contact with fellow isolates. As Putnam has argued, we have seen far too much of this kind of isolation already in the United States and it is at least partially responsible for the sad situation of our democratic republic at this moment. 

The American Scholar, Part One

"Thinking," as Hannah Arendt tells us in her essay "Thinking and Moral Considerations," is an essential attribute of both good philosophy and good citizenship. If we want to encourage good citizenship, we need to encourage (and prepare citizens to engage in) real thinking -- not just the mundane stuff of opinion formation that passes for thinking today (and in Plato's cave), and not merely the instrumental thinking practiced by functionaries and bureaucrats, who use their minds to develop ways of achieving whatever ends they are charged with achieving (see Arendt's discussion of Adolf Eichmann, for instance). Instead, we need to encourage that "good for nothing immediate," "out of order" thought upon which the success of a democratic republic rests, because it is only a people familiar with that kind of thinking activity that can resist the drift into anomie and tyranny.  

But we live in a society that does not encourage thinking, perhaps one that actively discourages it. Certainly much that passes for education has little to do with preparation for thinking. As a result, many of our fellow citizens -- even highly educated ones in the professions, perhaps especially there -- do not think in the Arendtian sense, have never had a thought as such, and hope never to have one.

Ralph Waldo Emerson, for all his faults (and they are legion), raised a similar criticism of the America of his day. In his address to the Phi Beta Kappa Society at Harvard, entitled "The American Scholar," given not long after he had forsaken the Unitarian ministry in favor of becoming an independent scholar, Emerson tries to define the characteristics of the American scholar, contrasting this ideal with ministry, with devotion to social reform, and with what typically passed in his day (and still passes) for scholarship. What we can learn from Emerson is that the scholar is a thinker -- he is what Emerson termed with Germanic seriousness "Man Thinking." The scholar reflects independently, carefully, and deeply on his interactions with nature, with the great thought of the past, and with the social world around him. The true scholar, in Emerson's view, is someone who takes everything -- every experience, every contact with the natural environment, every book he reads -- as grist for the mill of his own thinking. He is necessarily rare -- at least in his guise as Man Thinking -- which is not to say that many of us cannot rise to his level on occasion, when time permits, when inspired by our muse. There are many quibbles one could raise against Emerson's view -- in particular with his belief that the thinker should not get caught up in the issues and movements of the day -- but I am struck by the applicability of much that he says about thinking to our situation today.

Emerson teaches us that the scholar is not the bookworm or the scientist wrapped up in a narrowly-defined, corporate-funded research program. She is not the journalist compelled to write, write, write on the issues (however trite or invented) of the day. He is not today's academic, preoccupied with publishing (in esoteric journals no one reads) in order not to perish. She is certainly neither the corporate or government functionary nor the medical or legal professional, busily applying instrumental reason to technical, mechanical problems in organizations, institutions, or society at large. Nor, finally, is he today's politician, who has given a bad name to the bios politikos by eschewing a concern for a common good defined other than as his personal, political good or the good of his fellow-travelers. 

Emerson makes clear that scholarship of the sort he has in mind is unlikely to occur in universities or colleges. What counted as "scholarship" in his day was a deep familiarity with the "classics," a devotion to preparing accurate editions of "great" texts, a desire to know the ideas contained in those texts. Emerson argued that it is better to know what one thinks oneself than to know what ever so many ancient authors thought. He insisted that old books have no inherent virtue except as triggers for one's own thinking. And he derided the "academy" of his day for failing to teach students to think for themselves, forcing them rather to master a pile of dusty and ancient books, written by dead authors who wrote in dead languages. He decried the "degenerate state" of contemporary scholarship, stating that it produced "a mere thinker, or, still worse, the parrot of other men's thinking."  

Emerson's criticism of "schooling" of this sort still applies today. What counts as scholarship today is narrow, specialized research into selected, often trivial or abstruse topics. Not only is the research narrow, the questions asked insignificant, but the selection of topics itself is extraordinarily cramped. So-called scholars spend years of their lives researching tiny, recondite aspects of the world around them. She who would earn tenure in today's university had better specialize in some constricted, even obscure, little corner within her larger disciplinary field, which itself is already considerably attenuated. No one could earn tenure today with a body of essays on the variety of topics on which Emerson wrote: from self-reliance, to friendship, heroism, poetry, character, manners, nature, beauty, worship, and politics. What academic discipline is described by these topics? 

Today's academic disciplines require their practitioners to focus to a pinpoint their minds, their work, their writings. Philosophy professors write about abstruse aspects of language, providing large bodies of evidence (were such needed) of the irrelevance of their discipline. English professors analyze rather than write literature (usually by asking questions no one has ever thought of asking before, and no one will again) -- the best of them are Emerson's "bookworms," while most of the others have sapped the life out of imaginative literature for themselves and their students. Scientists, including their poorer cousins the social scientists, must choose circumscribed areas of research to which to apply so-called scientific method; indeed, their method only really works when applied to problems defined in the narrowest way possible. Social scientists, from whom we might expect some interest in wrestling with the big questions of social and political order, simply assume the important things that call for serious thinking. Scientific results tend to be helpful at best; more commonly, they are trivial and cute, endlessly filling endless shelves of arcane professional journals.


All these so-called scholars are driven by the need to (1) publish (or perish) and (2) be original (for otherwise you cannot get published in the right "scholarly journals"). These two factors shove would-be scholars into a straitjacket and force them to think only instrumentally. There are notable exceptions, to be sure -- exceptions that prove the rule. Occasionally someone -- a philosopher like Richard Rorty, for example, or an English professor like Stanley Fish -- can rise above the stultifying environment of the academy to do some serious thinking, work that spans disciplinary boundaries (work consequently much criticized by the guardians of the disciplines), addresses matters of significance, and abjures the confining expectations of their field. Such people can do this, of course, only after carving out a position in the disciplinary world -- Fish, for example, was a noted Milton scholar, Rorty a linguistic philosopher with a bent toward epistemology; both earned tenure at top-flight universities. The existence of a Rorty or a Fish only goes to show that "thinkers," if they pursue their inclinations, cannot be held back by even the tightest of professional bonds; it does not suggest that academia is a place where one can expect much thinking.

Graduate schools, at least most of them (my own experience was somewhat, though not entirely, different) view their role as training grounds for the academic professions, and they quickly teach their inmates that broad-mindedness, eclectic interests, interdisciplinary thinking is taboo -- such scholarship won't get you a job and certainly won't get your tenure. Instead, graduate schools prepare students for a world in which tenure is most often reserved for the good soldier who has dutifully devoted his or her life to some specialized topic about which he or she can claim to be one of the two or three experts in the world. It is unfortunately rare for anyone evaluating the work of these soldier-scholars to ask "So what?"

And as for professional schools -- law schools, medical schools, business schools, and the like -- no one could reasonably expect them to produce thinkers in the Emersonian sense, for their mission is to train rather than educate, to fashion people who can analyze problems in the distinctive way of their profession and apply the right sorts of technical methods to arrive at solutions. Professional schools teach their students to think like lawyers/doctors/business executives -- which is to say, not really to think in the deep, non-instrumental sense at all. Of course, as with university professors, some lawyers, doctors, and business executives swim against the stream and actually engage in some thinking -- but they are few and far between, deviants who sit uncomfortably in the midst of the highly trained mediocrity around them.

So we are no closer to cultivating thinkers today than we were in Emerson's day. She who would truly think would do well to avoid the cloister, the ivory tower, the professional school. She must find a different path, figure out a way to make ends meet while carving out enough time to pursue her thoughts. She does not, unfortunately, live in a time, or a land, that is congenial to her vocation. And yet without thinkers, it is hard to imagine how we might stimulate our fellow citizens to think now and then rather than emote, react, or dismiss the realm of ideas as a distraction from what they have learned to feel really matters. 

Blogging and Thinking

It has been some time since I made a contribution to this blog. That, of course, is one of the cardinal sins of blogging. If you don't post frequently, we are told, you lose readers. If you don't establish a regular schedule of posting, you lose momentum. Both lead eventually to the demise of the blog.

But here, perhaps, we see the shortcoming of blogging as a vehicle for serious thought. Is it possible to have anything significant to say and yet to say it on a regular schedule? Does the muse inspire a thinker regularly, frequently, on command? Or do frequent postings prevent serious thought by forcing it to occur on demand? Isn't blogging more congenial to those who would utter random thoughts on random topics of the day, who think it important to treat others in the great wide world to their musings on current issues or features of their daily lives? Can, or should, someone trying to do some serious thinking use a blog as a medium, or is the medium the (determinant of the quality of the) message here?

There are, of course, a few exceptions to the general tendency of blogs to be either mere reportage or the product of relatively shallow thinking. But my bet is that those blogs are products of those with much leisure time and, even then, are either not very regular or are shot through with "reactions" to issues of the day rather than serious thinking. In general, I think, the demands of a regular production schedule force the writer to compromise, to post something (no matter how minor or off-the-cuff) rather than nothing, and therefore to renege on a promise to offer serious thought truly worth considering.

Some (and not just bloggers) would disagree. They would point to the work of great journalists -- or, more accurately, great columnists -- as examples of the way in which sound thinking on significant matters can regularized. Depending on their persuasion, they would point to the work of H.L. Mencken and Walter Lippmann in the past, or David Brooks, Thomas Friedman, Roger Cohen, or any number of others today, arguing that these writers demonstrate that good thinking can be produced on a journalist's schedule. This is not the place to examine this claim, at least in any detail. Certainly some of these writers have produced work that is thought-provoking, smart, even wise. Lippmann, for instance, wrote a number of books that still deserve our considered attention. But I would suggest that, while some of the work produced by some of these writers is of high quality as thought, much of it is not. Indeed, much of it is filler, forced from the pen to meet a deadline, half-baked ideas expressed well but with few signs of having been forced through a reflective process. These writers are unquestionably good, even great, writers. But there is a difference between great writing and great thought, and the vast bulk of the material produced by these writers is ephemeral and shallow, no matter how well expressed.

So good, serious thinking is likely to express itself in fits and starts, in spurts of activity and periods of lull, in creative bursts that follow no schedule rather than tightly structured statements produced on a regular calendar. I think the reason has something to do with the nature of thinking itself. In a series of posts I want to think about thinking and its place in a democratic republic. The muse has struck. Stay tuned.

Flunking Civics

A recent article -- indeed, the cover story -- in the American Bar Association Journal details the extent to which America's kids are "flunking civics." The story is a sad one. Strikingly few young Americans know much at all about our system of government, or about the rule of law, what it means, and why it is important. We know from numerous other studies that knowledge of popular entertainment is significantly greater than knowledge of American government or the meaning of American principles. We know that, while most Americans -- young or old -- are patriots, sometimes rabid ones, they ultimately know little about what it is they claim to love. They thrill, or feel they ought to thrill, at the idea or image of the United States, at the flag and the strains of the Star Spangled Banner, with nary a clue of the complex set of principles they represent. They support our troops, without any understanding of how troops in Afghanistan are "protecting our freedoms," let alone what those freedoms truly are. They enjoy days off from work on Memorial Day, July 4th, and other secular holidays, but their knowledge of what makes the United States different or inspirational, of the ideas upon which this nation is founded, or of the mechanics of government is thin at best. They confuse patriotism with jingoism. They cheer for the home team for no other reason than it is the home team.

As I have argued many times before, the primary reason American citizens -- be they schoolchildren or adults -- know so little about our government and the principles upon which it was founded, about public affairs and the major issues that confront us as a nation, is that our schools give short shrift to civics. A strikingly small number of schools in this country offer even one course on government, let alone the repetitive overexposure granted to mathematics, English, and science. While some states require students to demonstrate at least some knowledge of government and public affairs, most do not. Many, like Vermont, settle for a mere ticking off of a "grade level expectation" that permits a school to claim to teach students about the Constitution because they hold an hour-long assembly on Constitution Day or a teacher mentions the Framers during a quick buzz-through of the founding of our nation. An embarrassingly large number of teachers -- let alone their students -- are not clear about the differences between the Declaration of Independence and the Constitution, believe that immediately prior to the drafting of the Constitution we were "colonies," and think Jefferson helped write the Constitution. Very, very few really understand what the Constitution or its provisions mean or understand the debates about that meaning that persist today. The vigorous debates between federalists and anti-federalists that characterized the period in which the Constitution was adopted and were carried on well into the twentieth century (and persist today, albeit in altered form) are little understood, despite the centrality of those debates for an appreciation of what citizenship means in a nation such as ours.

Of course, it is not just teachers and their students who fall far short here. Most citizens know even less. I have been personally appalled by the lack of knowledge among many in the legal profession -- people who know everything there is to know about complex trusts or real estate permits but know next to nothing about the deep foundations of our democratic republic. Even public officials lack a basic understanding of the principles of government, the role of the constitution in a constitutional republic, or the meaning of "republic" and "democracy" and the ways in which our nation embodies them. But a democratic, constitutional republic requires more than an educated elite. It requires, as Washington, Jefferson, Madison, and many others in the founding generation appreciated, an educated citizen body, a citizenry that knows about public affairs and government, a citizenry conversant with political ideas (rather than ideologies), a citizenry with the attitudes and skills necessary for self-government within a constitutional framework.  


Civic ignorance, in other words, should deeply concern us. Schools should be producing future citizens who can and will participate in community and national affairs, not just good workers for America Incorporated or scientists that, given sufficient funds, can outperform our Asian competitors for the greater glory of
American capitalism. The health of a constitutional republic such as our own can only be maintained if citizens who are capable of speaking, deliberating, choosing, and acting in public are produced and reproduced. A failure to raise good citizens inevitably leads to a failure of the kind of system that relies on citizens and its replacement by a system that thrives on the existence of mere passive subjects (or should I say, "objects"?). In America, we have gotten quite good at producing subjects. We are not so good at producing citizens.

So it should bother us greatly when our national institutions withdraw support from civic education in their effort to cut the federal budget, reduce "social spending," and halt the practice of funding so-called "earmarks." This is exactly what the current Congress has done by eliminating in its continuing budget resolution funding for the Education for Democracy Act. That Act funds a number of national civic education programs, all of which have bi-partisan support. The problem is that the Act names those programs, thereby triggering the wrath of those who want to eliminate all earmarks (appropriations targeted at specific, named programs, groups, organizations, and companies). Out with the earmark bathwater has gone the baby of civic education. Programs with which the Vermont Bar Association has been closely involved, including the highly successful We the People: The Citizen and the Constitution and the Representative Democracy in America programs provided by the Center for Civic Education, have been cut from the federal budget. These programs are the single best source of high quality civic education in the United States, but they depended on Congressional funding for their existence, let alone their success.

Education is, as ever, an easy target for budget-cutters. They find support in the general ignorance about the value of education for a constitutional republic. And, of course, the less civic education is available, the fewer people realize its importance; a downward spiral is created in which fewer educational programs produce fewer people educated enough to understand why education is valuable, people who in turn support the funding of even fewer programs, thereby reducing the number of the educated, and so on. Budget-cutters also find support in what historian Richard Hofstadter described as "anti-intellectualism" in American life: a general distrust of those who spend their lives thinking rather than slaving away in the marketplace, a deep-seated national skepticism about the educated, the artist, the writer, the thinker. A strong case can be made that we live in the latest heyday of anti-intellectualism, an era in which the ignorance of Joe the Plumber is valued more highly than the complex understanding fostered now and again by National Public Radio -- an era in which candidates for the highest office are unembarrassed by revelations that they don't read newspapers, don't know basic details about the world, and don't understand the reasoning of courts. Budget-cutters also find support in the common prejudice in society against teachers, who, it is said, work only part of the year and make too much money. They find support in those who tell us that education should be producing workers with the skills to cope with the modern world, and that doing so leaves no time remaining for social studies, let alone "frills" such as music, art, and theater programs. They find support, finally, in a national selfishness that sees the reduction of government spending (especially on programs that benefit the poor, the helpless, the young) to be the essence of freedom.


Increasingly I fear for the prospect of true citizenship in the United States. One thing is certain: unless we, the people, find ways to halt the downward spiral of ever-declining civic knowledge, our great experiment in constitutional democracy -- perhaps still "the last best hope of earth" for government that values citizens rather than subjects -- may soon collapse, and "government of the people, by the people, for the people" may perish from our shores, if not from the earth.

Some Mistakes About Democracy and Freedom

I have a group of friends with whom I get together once a month to discuss topics of general interest. Modeling our conversations on those carried on by Samuel Johnson and his circle -- without the Great Cham to rule over our discourse -- we call ourselves the Johnson Society. Conversation is usually vigorous. Only one of the others in the group can lay claim to being a "scholar" of the academic sort, though all are thoughtful, scholarly citizens and excellent conversationalists. Each member of the group is able to consider a topic from many angles, to state positions and support them with arguments, to deliberate, and reach conclusions that are not merely louder or more entrenched versions of the position from which he or she started.

Last week the discussion focused on, among other things, democracy and freedom. I was unable to attend the gathering, but have received reports about the nature of the conversation. I was disappointed at not being able to be there, for it seems to me that it is exactly this sort of discourse, on these sorts of topics, that citizens should engage in much more frequently than they do in the United States. Indeed, the Founders hoped that American citizens would be just this sort of people: thoughtful, reasonable, engaged citizens, who speak, deliberate, and act in public. In their minds citizens are people who do not simply shout their untutored, unexamined views across a gulf at one another. Citizens are not people who listen only to those with whom they already agree; rather, they are willing to take the risk of free and open discussion with others coming from many different places, the risk that their initial prejudices, structured by their own personal situations and backgrounds, might change through interaction with others.

In any event, had I been in the conversation, I would have suggested that we too often make some mistakes about the character of democracy and freedom. American politicians and the American people, for example, call our nation a democracy -- and that is a mistake. It is a commonplace, or should be, that the United States is not a democracy but a republic, that it was never intended to be a democracy for good reasons. The Founders shared the classical view (one that has persisted through the history of political theory) that democracy is not a good system of government. Famously, Plato and Aristotle listed democracy as one of the bad types of constitution, primarily because in their minds democracy meant rule by the poor in their own interest rather than for the common good. The American Founders recognized other weaknesses of democracy, including its impracticality in any state larger than a small town. Most importantly, they (especially James Madison) worried that unadulterated, unlimited democracy inevitably led to tyranny of the majority -- an idea picked up by Alexis de Tocqueville in his classic and influential study, Democracy in America.

So democracy is not the proper term for the sort of constitution we have in the United States. No nation is a democracy in the strict sense, though many aspire to some form of popular sovereignty, as we do. But for complicated historical reasons, "democracy" has become one of those honorific terms that bring up within us a feeling of goodness -- and the usage of the term to suggest goodness has spread around the globe. Today's freedom fighters and rebels, most notably in the Middle East and North Africa, call for democracy, and their efforts and struggles should not be denigrated. But it is likely that they do not really want democracy so much as some combination of a free market economy, a variety of individual freedoms, the end of absolutist and tyrannical rule, and the development of some popular influence over governmental decision making.

What we have in the United States is a constitutional republic, and one we must struggle to keep, for we do not live in times conducive to constitutional republics except in the most formalistic sense. Benjamin Franklin, when asked on the streets of Philadelphia after the constitutional convention, "What have you given us, Mr. Franklin?," famously remarked: "A republic if you can keep it." A prescient and wise remark. As Franklin saw, citizens need to be keepers of the constitutional republic, a far more complicated matter than merely casting a vote now and then or taking an interest in public affairs from the comfort of an armchair. Most Americans are not citizens in this deeper way; instead, they are subjects of a government that happens to be elected (and by a minority of them, though the problem is the same in nations where the majority of population votes).

Consequently, I think we are mistaken to call most of our fellow subjects "citizens," for that term implies a more active and vigorous role in self-government than most Americans take. Most Americans today will tell you that a citizen is someone who is recognized as such by the United States government: those who are born or naturalized in the United States. But such a usage reflects the same flattening of the moral universe that leads us to call those who get in harm's way heroes even when they are only mindlessly following orders: we have lost any deeper sense of what these terms might mean, and so we strip them of their critical bite and apply them liberally to anyone who carries a passport or wears a uniform.

Speaking of the British, who in the 18th century were often praised (by Montesquieu, for instance) for their free government compared to the absolutist states on the continent, Jean-Jacques Rousseau said that they are only free when they vote and then they make such bad use of their freedom that they deserve to lose it. If citizens are only voters, then they are only choosers of their rulers -- not people engaged in the politics of self-government. Rousseau had a point, as he so often did (though he frequently took those points in unjustifiable directions). Americans simply choose their tyrants every few years, though our tyrants have learned that demagoguery is the key to success rather than bread and circuses or brute force. We are not very free politically, despite the right to vote (which so many choose not to exercise anyway) -- and despite how good it makes us feel to say we are free.

Freedom is far, far more than the right to make choices about peanut butter and toothpaste. It is even far more than the right to say or choose whatever life partner you want -- though these are much more central the freedom of consumer choice. Freedom must include the fact of, not just the reputation for, self-government -- and that requires a citizenry that is knowledgeable, skillful, and interested in taking an active role in the public square. We do very little in the United States to encourage that sort of citizenry and that sort of freedom. Indeed, we find the sort of critical, engaged citizens essential to real politics in a constitutional republic scary. It seems to me that the rise of a certain sort of politician, and a certain sort of political commentator, indicates the rejection of real, thoughtful, deliberative, active citizenship. Instead, we substitute (and celebrate) jingoism, xenophobia, ideology, and stupidity. We are witnessing the rise of demagoguery and the pointed, intentional rejection of the kind of thought necessary for constitution keeping (let alone constitution making). Instead of citizens, we seek fellow-travelers. Instead of thought, we value emotion-laden rhetoric unadulterated by consideration of facts or ideas. Instead of leading citizens, we follow those who mirror our prejudices and ideologies, who tell us what we want to hear and refuse to challenge us to transcend our baser instincts. We gladly rush headlong for our chains (to quote the highly quotable Rousseau again). To call this freedom is absurd, for it strikes me as preparation for continued servitude, no matter how many kinds of breakfast cereal stock our shelves.

The Challenge to Civic Education

It has been a month since I last contributed to this forum. In that time I have had the great pleasure and honor of joining a group of German and American scholars -- political theorists, political scientists, constitutional scholars, civic educators -- at the annual German-American Civic Education Conference, this year held in Bloomington, Indiana. As always, the conference enlightened and provoked.

I have written many times -- in this blog and elsewhere -- about the importance of civic education. Constitutional democracy, such as we have in the United States, such as they have in Germany -- requires a citizenry not only emotionally tied to the nation (the mistaken idea of citizenship too often held by Americans and, particularly, by pseudo-conservative writers and politicians) but one that understands, accepts, and values a body of principles that both underlie the nation and reflect the characteristics of constitutionalism itself. This body of principles is not static (another mistake made by many) but ever-developing, in precisely the way any live tradition develops through a confrontation of the tradition as handed down and the ongoing deliberation and debate of thoughtful citizens. [Lest I be misunderstood, this does not mean that we in the United States have a "living constitution" in the sense so often pilloried by jurists and (again) pseudo-conservatives.] Constitutional democracy, to thrive, must continually reproduce citizens -- and citizens must not simply be subjects, passively accepting what has been imposed upon them, but active participants in the thinking, speaking, deliberating, and acting in public that characterizes the political realm. These are complicated ideas, and require much more elucidation than can be given here. The main point is that constitutional democracy requires a conscious and active citizenry if it is to persist, if it is not to turn into tyranny and despotism (or, in modern guise, the caretaker administrative state). That is true in Germany as it is in the United States -- indeed, it is a fundamental truth about constitutional democracy no matter where it is established.

My German colleagues are as concerned about this need as are my American colleagues. In both nations, the vast majority of citizens know little about their political system, frequently express negative views about their system and those who take active roles in it, and seem willing to permit political leaders to exercise vast powers that contradict the fundamental principles upon which their constitutional systems rest. In both countries, schools are failing to carry out their fundamental task in a constitutional democracy -- to create educated and thoughtful citizens rather than to reproduce a labor force for post-capitalist economic orders. And so in both countries the need for sound civic education is critical.

In the United States civic education is in danger. The danger comes from those who believe that education should focus on English, math, and science to the detriment of social studies. It comes from a society-wide denigration of politics and a resulting lack of interest in learning about politics -- a lack of interest that means that remarkably few social studies teachers know much about our constitutional system. It comes from members of Congress who see education funding as discretionary, easily and quickly slashed in times of economic stress. It comes from a simplistic anti-earmark fervor that may sacrifice sound civic education programs with proven success to the gods of crass political ideology. It comes from presidential administrations in both parties who target their educational policies on fostering national productive capabilities rather than citizenship (in large part because they do not have a thought-out conception of citizenship, or see its value). It comes from the whole tone of public discussion: one that worries that teachers are overpaid without asking what they do and what they should be doing; one that values economic growth even if it means reduced civic knowledge and involvement; one that believes that education should focus on preparing the student for economic roles rather than political roles; one that denigrates politics because it accepts the reduction of the political to the play of politicians.

The sorry state of the American politics bespeaks the sorry state of our civic education, and from the papers presented at the Bloomington conference it appears as if more and more the state of German politics is coming to resemble that in the United States. If either of us are to thrive as a nation -- not only economically but as a constitutional people -- we must find the will and the ways to invigorate an education designed to produce a citizenry who are (as my friend Will Harris says) "constitution keepers" and "constitution makers." We must imagine and implement an education for a citizenry that will play an active and central part in governing themselves through real deliberation and decision, rather than one buffeted about by the whims of the day and the demagoguery of politicians bent on gaining or keeping power. In both Germany and the United States, excellent curricula for education of constitutional citizens exist and educators continue to hone those curricula and develop new ones. What is lacking, at least in the US, is a critical mass of citizens who will insist on the implementation of these curricula -- let alone politicians who will do so. We find ourselves caught up in a spiral in which our failure to educate citizens has produced a lack of citizens who see a value in educating citizens. The challenge we face in both nations is finding a way out of this spiral before our constitutional democracies begin to circle the drain.

Egypt and the State of Nature

News comes today that the Egyptian military, left in charge by the departure of President Hosni Mubarak, has dissolved parliament and suspended the constitution. The move has been applauded by the protesters -- a diverse group to be sure -- who toppled Mubarek. International reaction is likely to be ambivalent for military control of a nation is rarely, if ever, a good thing. The good news is that Egypt's military has so far not given any indication that it wants to establish a military dictatorship and its public pronouncements today have indicated a desire to draft a new, more democratic constitution and hold elections within six months.

The Egyptian people now confront that moment in the history of a nation when they must replace an old, no-longer-effective political order with something new. This is not exactly what the great modern political theorist Thomas Hobbes described as the state of nature: a time during which there is no common power to put the people of a territory in awe. When such a situation exists, according to Hobbes, people do whatever it takes to preserve themselves and cannot be faulted for whatever they do; their choices can only be evaluated as more or less well calculated to achieve self-preservation. As a result, during this time people live in a state of war, indeed a "war of all against all." "In such a condition," Hobbes tells us, "there is no place for industry, because the fruit thereof is uncertain, and consequently, no culture of the earth, no navigation, nor use of the commodities that may be imported by sea, no commodious building, no instruments of moving and removing such things as require much force, no knowledge of the face of the earth, no account of time, no arts, no letters, no society, and which is worst of all, continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short."

This is not -- yet -- the condition of Egypt. While the economy has slowed due to the unrest that preceded the downfall of Mubarak, it has not collapsed. While there were demonstrations, the level of overall unrest was relatively low and major clashes between demonstrators and the military did not occur. Indeed, perhaps the most remarkable thing about the demonstrations was the relative order and peacefulness with which they occurred and with which the government responded. Life for many in Egypt continues to be poor, brutish, and short, in part due to the policies of the Mubarak regime. But it seems clear that there is a "common power" capable of keeping people in awe -- the military -- and, as a result, the war of all against all has not materialized. Political order has not disappeared, though its nature will surely change.

The situation, therefore, reflects the time described by John Locke and Thomas Jefferson as the moment of revolution: when one government is cast out and replaced by a new one without returning the society as a whole to a state of complete disorder. Locke's description bore a strong resemblance to the so-called Glorious Revolution in England, when James II was sent packing and William and Mary were called to the throne by Parliament, establishing parliamentary sovereignty once for all. Jefferson's, of course, was meant to capture the moment of the American Revolution, when the colonists cut their ties with the king and set up their own new nation with its own independent government.

We can hope that developments in Egypt will go the way of William and Mary's England or the post-revolutionary United States. But we should be aware of the Hobbesian warning: revolutions bring disorder, and disorder can get out of hand, rendering a once "common power" perilous. When that occurs, there are two directions in which a nation and its people can go. Those who hold power can find themselves incapable of enforcing order, whether through lack of physical strength or lack of will, and as a result the state of nature returns. Afghanistan, for example, seems to be ever teetering on the edge of chaos; it is a nation in which the ability of any power to extend its reach to all of the country bespeaks a "failed state," which is to say a situation strongly resembling the Hobbesian state of nature. A even more powerful example is offered by Somalia, where no power is able to enforce its will on the nation and where life is truly solitary, poor, nasty, brutish, and short -- Somalia is the Hobbesian state of nature.

At this point, however, it does not look like Egypt will go the way of Afghanistan and Somalia. Order appears to be too deeply embedded in Egyptian society, and frankly the military appears too powerful. Today, as the military tried to persuade the last demonstrators to leave Tahrir Square, people set to work tidying up, scrubbing grafitti off statues, repainting curbs, removing litter. This reveals a deep sense of order in Egypt and suggests that the state of nature is far, far away.

But should events not move forward smoothly and consistently with the wishes of the protesters who felled Mubarak, disorder may re-emerge. If it does, there is a strong chance that the holders of power will redouble their efforts to enforce order, becoming less tolerant of dissent and much more willing to use whatever force is necessary to preserve peace.We can applaud the democratic rhetoric of those who filled Tahrir Square and the restraint so far shown by the military. We can applaud the idea of creating a commission to draft a new constitution and the promise of truly free and fair elections in the near future. But we must be mindful of the lessons of Hobbes and history: few revolutions have actually resulted in stable, long-lasting democracy.

The American case remains more an exception than the rule, surely due to the principles and actions of a truly special generation of political leaders. More typical, unfortunately, is the experience of France after 1789 where, as Hannah Arendt has argued, "constitution followed upon constitution while those in power were unable to enforce any of the revolutionary laws and decrees," resulting in "one monotonous record illustrating again and again what should have been obvious from the beginning, namely that the so-called will of a multitude (if this is to be more than a legal fiction) is ever-changing by definition, and that a structure built on it as its foundation is built on quicksand." More typical, as well, is France after 1848, when Alexis de Tocqueville, the great observer of democracy in America, participated in drafting a new constitution that soon gave way to the autocratic rule of Napoleon III. More typical, unfortunately, is the short story of the Weimar Republic in Germany, a democracy that collapsed due to a combination of factors, among which were a devastated economy and a lack of democratic political culture to help weather the inevitable storms of the first years of republican government.

If history has taught us anything it is that democratic rhetoric in revolution does not necessarily (or often) translate into stable democratic practice. Talk of democracy too often is used by those who seek power. In the wise words of Federalist No. 1, "a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."

This is not to say that Egypt cannot succeed at crafting a new model for a democratic republic. It is only to suggest that we should temper our enthusiasm and not be bamboozled by the rhetoric of democracy and constitution. It is to suggest that neither the departure of Mubarak nor the formation of a constitutional commission necessarily means that democracy is coming to Egypt; nor does it mean that Egypt can avoid what the classical political philosophers always sought to emphasize -- the tendency of democracy to degenerate into class war, chaos, and ultimately tyranny. Perhaps our best hope is that Egypt (or any other nation in the region -- Yemen, for instance) avoids the fall into the sort of civil war that Hobbes saw as the essence of the state of nature.