Monday, February 13, 2023

The Perils of American Exceptionalism--at Home and Abroad

 by Michael C. Dorf

On Friday of last week, I critiqued President Biden's statement during the State of the Union asserting that the U.S. is unlike other countries in the world, which are based on geography and/or ethnicity because the U.S. is based on the idea that every member of the polity "is created equal in the image of God." I explained that each of the four propositions implicit in that statement is wrong. To recap, those four propositions are: "(1) The U.S. is not defined by or based on geography or ethnicity, but is instead based on an idea; (2) the idea on which the U.S. is based is human equality; (3) the idea of human equality is Divine in origin; and (4) no nation other than the U.S. is based on an idea."

Why did I go into so much depth? Because Biden's false claims--which echo views that we might call patriotic hyperbole passed off as conventional wisdom--are widely held and conducive to great mischief in both constitutional law/politics and foreign policy. I elaborate each of those forms of mischief below but first I'll follow up with a brief clarification and further development of a couple of points I made on Friday.

Clarification: Biden tacitly made a metaphysical/theological assertion in stating that all people are created equal in the image of God. That was a claim that "the idea of human equality is Divine in origin," as noted above and in Friday's essay. However, I shouldn't have said that that claim is false, because to say as much is to make a statement that is itself laden with content about ultimate reality. I take no position (for purposes of Friday's essay or today's) about the existence of God or about whether, if God exists, He created humans equal in His image. To be sure, I have views about such matters but I didn't mean to invoke those views and whether others agree with me or not about these ultimate questions doesn't bear on the proposition I should have stated more precisely. The claim that I should have said was false is this one: the American nation is based on the view that God is the source of human equality. And in fact my argument was aimed at showing that that proposition is false.

Elaboration: In refuting point (2), I explained that the U.S. is not based on a single idea. Part of the evidence for my refutation was the fact that people who say the U.S. is based on "an idea" give very different statements of what that idea is. I further claimed that no sensible polity would be based on a single idea. I stand by those claims, but I want to add that one can point to other polities that come substantially closer to being based on a single idea than does the United States. Here are four: (1) the Vatican city-state, as a sovereign entity, is based on the idea that the Gospels as deemed authoritative by the Catholic Church are true; (2) the Islamic Republic of Iran is based on the idea of the truth of the tenets of Shia Islam as dictated by the Supreme leader; (3) Israel is based on the idea that the Jewish People are entitled to a homeland in territory that overlaps substantially with the land from which they were exiled in ancient times; and (4) Liberia is based on the idea that formerly enslaved African Americans and their descendants would fare better in Africa than in the United States.

Each of those descriptions is of course an over-simplification, but I think it fair to say that with respect to each example, one has an easier time identifying one single idea as central to the nation's foundation than one has for the United States. And it's no accident that two of the four (the Vatican and Iran) are expressly religious, while a third (Israel) is ethno-national in origin (thus belying Biden's assumption that a nation that is rooted in geography and ancestry cannot also be based on an idea) and increasingly becoming expressly religious.

* * *

Now onto the mischief:

(1) The false belief that the U.S. was founded on a genuine commitment to human equality or, for that matter, any other noble ideal that can be located in the founding documents--such as liberty or democracy--is harmful in at least two respects.

First, it can lead to a kind of complacency born of the view that the Constitution is perfect and thus should not be amended--ever. In a particularly absurd illustration of that particular brand of ancestor worship from the country's self-appointed antiquarian-in-chief, George F. Will, writing in June 1989, denounced then-President George H.W. Bush's proposals to amend the Constitution, even though Will agreed with the substance of two of the proposals as a matter of how the Constitution we already have should be construed. Nonetheless, Will's column scolded Bush: "Hands Off Madison's Document." Writing from the other end of the spectrum six years later, Kathleen Sullivan condemned "Constitutional Amendmentitis." She asserted that a "rash of amendment proposals is cause for alarm, even apart from any of their individual merits."

Will and Sullivan were both wrong. Sure, there are some matters that are too trivial to bother including in a Constitution or that could backfire. But why should a proposed amendment be evaluated apart from its merits? Sullivan (and tacitly Will) treated the enormous (and politically skewed) difficulty of amending the U.S. Constitution as a virtue, rather than the bug that it obviously is.

Neither Will nor Sullivan is stupid, and they probably disagreed with one another then and now about a great many policy points. So why did they agree that the Constitution is nearly perfect? I suspect that ancestor worship of the sort that treats the Framers as near-gods and that is part of the standard American ethos played a role. So that's the first problem with believing that the nation was founded based on wonderful ideals: it can undercut political movements for needed change.

Second, the belief in a noble founding enables terrible constitutional interpretation. If you correctly understand that the framers were hypocrites who wrote pretty-sounding words they neither believed nor applied to most of the people living among them, you will rightly treat those words as the tribute that vice plays to virtue and interpret them to do justice. But if you incorrectly believe the framers were moral visionaries who founded a country based on respect for fundamental human rights, you will be tempted to interpret their words in accordance with their practices. That's certainly how Justice Alito (in Dobbs and beyond), Justice Thomas (in Bruen and beyond), and most of the other SCOTUS conservatives want to read the Constitution--in light of the practices of the founding generation.

There is, unfortunately, a long tradition of denying the import of the broad ideals of our founding documents in light of the founders' failure to live up to them, rather than taking those idealistic phrases at face value. Here is how Justice Taney played that game in the Dred Scott case:

The general words ["all men are created equal"] would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. Yet the men who framed this declaration were great men -- high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others, and they knew that it would not in any part of the civilized world be supposed to embrace the negro race . . . .

But in fact the conduct of those distinguished men was "utterly and flagrantly inconsistent with the principles they asserted."

There is, of course, a counter-tradition, stated most eloquently and forcefully by Frederick Douglass in his 1860 Glasgow speech. Whether Douglass correctly read the pre-Reconstruction Constitution's text as anti-slavery is open to debate. My point for now is that he rightly accepted that the frames were utter hypocrites, so that he did not glorify the past but instead espoused a version of what we would now call textualism that looks to the words apart from the intentions or the practices of their framers or adopters.

(2) Meanwhile, American exceptionalism--and in particular the notion of Divinely ordained American righteousness--has led to disastrous adventurism in foreign policy that is captured by a disturbing scene from Stanley Kubrick's powerful film Full Metal Jacket. The marine platoon looks down upon the dead bodies of two of their comrades. The camera pans among the onlooking marines as each says a word or two for the camera, culminating in this:

Rafterman: Well, at least they died for a good cause.

Animal Mother: What cause is that?

Rafterman: Freedom.

Animal Mother: Flush out your headgear, new guy. You think we waste [derogatory term for Vietnamese people] for freedom? This is a slaughter. If I'm gonna get my balls blown off for a word, my word is [vulgar term for female genitalia].

The scene, like the film overall, encapsulates the entire misadventure of the U.S. military campaign in Vietnam. Hawks in the Kennedy, Johnson, and Nixon administrations saw the war as a battle to stop the expansion of Godless communism in the name of America's Divinely ordained mission to spread the Gospel of freedom--which, more often than Biden's equality, is the singular idea most commonly identified as the foundation of the American nation and our gift to the world. The effort led only to mass bloodshed and ultimately failure.

Fast-forward a few decades and George W. Bush--who somehow didn't learn the lessons of Vietnam while serving stateside in the Texas Air National Guard--embarked on a war of choice in Iraq based at least in part on the delusion that, as his Vice President infamously declared, we would "be greeted as liberators." Thus were hundreds of thousands of lives lost and Al-Qaeda in Iraq--which became ISIS--was created. Mission accomplished.

The most recent overseas military disaster--our by-far longest war ever--was not entirely a war of choice, at least at the outset, when the Taliban's provision of sanctuary for Al-Qaeda following 9/11 provided a plausible casus belli. But surely American overconfidence born of belief in the inevitable triumph of our goodness played a role in the continuation of that war through four presidential administrations despite Afghanistan's well-earned reputation as the graveyard of empires. Biden has been rightly criticized for the terrible and chaotic execution of the withdrawal of U.S. forces in the summer of 2021, but it never was going to end well.

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