Hamdan and the Burden of Democratic Freedom Posted by Michael Signer

I was in the restroom at my firm yesterday when a partner told me about the Hamdan decision -- a little awkwardly, but enthusiastically nonetheless.  He just had to talk about it, I guess, right then and there.  Word swept through other non-legal fora throughout Washington and, I imagine, the rest of the country.  Blackberrys buzzed, people's voices suddenly rose in conference rooms, reporters' eyes lit up.

I really don't want all of the sophisticated folks who read DA to pummel me for simple-minded flag-waving.  Really, I don't. 

But yesterday's decision was really quite extraordinary, not just as a momentary victory for the plaintiff and his legal advocates, but more importantly as a window into something like the soul of modern American democracy.  There was something deeply, uniquely, American about the decision. 

This is important because we are, at this historical moment, in the process of an ambitious but ungainly fit of nation-building by people who really don't seem to understand the internal complexities of modern liberal democracy, especially as practiced in America.  We would all do well -- especially neoconservatives -- to look inward, at the genius of modern American democracy.  We need to understand why democracy works here before we go about, willy-nilly, exporting the skeleton, rather than the muscle, of actual democracy.

Last night I finished teaching the last session of a graduate seminar I've been teaching titled "Contemporary Political Theory."  Over six weeks, the twelve students and I struggled with six difficult but important texts -- Hannah Arendt's The Origins of Totalitarianism, John Rawls' A Theory of Justice, Michel Foucault's Discipline and Punish, Leo Strauss' Natural Right and History, Kwame Anthony Appiah's Cosmopolitanism, and Seyyid Qutb's Milestones.

One theme that emerged through the course was the burden and trials of modern democratic individual freedom.  Qutb's fundamentalism or the totalitarianism Arendt describes are, in important respects, intended to become effortless for large segments of the population.  Qutb's premise is that Muslims must embrace absolute submission to their God; from that, society, law, the state, and jihaad follow.  The totalitarians demanded submission to a state warring for absolute geopolitical power; from that, all the rest flowed.  For individuals, the acceptable (actually lauded) course was to commit to the first premises; after that, you were doing the politically right thing -- indeed, taking the action the political theory most valued -- by floating along like a cork on a wave.

American liberal democracy is different.  The burdens are heavy.  Rawls' theory demands thoughtful and constant commitment to key principles of equality and justice, and constantly considering the gifts you did not earn that give you advantages over others.  Arendt goes even farther -- we have the ability to introduce new things into the world just by being human.  Our capacity to create -- in the beginning, what she calls our "natality," and then our ability to say something unpredictable, to bear children, to create new ideas -- is also our unique political ability, and the responsibility.

That's all a long-winded way of getting around to what was extraordinary and deeply American about the Hamdan decision.  In this country, the rule of law works only because the courts impose a certain fallibilism on the other two branches.  Peter Beinart has recently been arguing that this fallibilism, derived from the theologian Reinhold Niebuhr, constituted the original greatness of the post-WWII anti-communist American liberalism.  He's right.  Democracy is difficult and burdensome.  It can have been no small thing for the Justices and their clerks to have contemplated overruling a powerful Administration in the midst of what they call war on a significant issue like military justice in Guantanamo. 

But the difficulty is the Americanness of this.  Liberty can be heavy, almost painful.  The beauty of our system is that the elements, like broken bones, grow stronger through testing.  The internal tensile strength grows through trial.  Overt shows of "strength" -- this Administration's table-pounding and bellowing about the unitary executive -- in the end yield reverse consequences:  a shaky national image, the pictures from Abu Ghraib, our current unsteadiness against Iraq, North Korea.  What's most impressive, at the end of the day -- impressive because strong -- is when we subject ourselves to the most searching scrutiny, in the process creating policy, rules of law, and decisions that enhance actual liberty, real freedom.

I know that for many it's tough to praise a decision that seems to set back the executive branch in a time of war (or at least the struggle against extremism), and I'm disappointed by the partisan nature of the vote (Scalia, Thomas, and Alito in opposition).  None of us should rejoice in the decision because of our feelings about the President personally, or politically.  That's not relevant, and it's petty.  What is relevant is this:  the decision tests our democracy, at a time when we most need it.  And the Supreme Court passed this test, its standard streaming in the wind.

So, this Independence Day weekend, raise a glass to the rule of law -- and to the genius of American democracy.

Comments

[Cal]

This is definitely a win for the rule of law, but it's hard to be triumphalist about American democracy, considering its many failures the past few years.

And seeing how certain the conservatives are in their opinion, and how contemptuous they are of the majority (Justice Stevens -- a veteran -- is "unfamiliar with the realities of war"), it's easy to imagine this being our democracy's last hurrah.

Congress has to step up and check this President. The courts can't do it alone.

[Heather Hurlburt]

Right there with you, Mike, though not necessarily in the men's room -- I felt like such the naive out-of-towner yesterday as I stood in the lobby at the Center for American Progress, wanting to beg the blase receptionist to unmute the tv as the news scrolled across.

And something bigger as well: if I read Stevens right, he made pretty clear for precedent and public opinion that we and our President are bound by international law that we've signed onto, such as the Geneva Conventions. Take that, Eric Posner.

[Demosophist]

Mike:

This is important because we are, at this historical moment, in the process of an ambitious but ungainly fit of nation-building by people who really don't seem to understand the internal complexities of modern liberal democracy, especially as practiced in America. We would all do well -- especially neoconservatives -- to look inward, at the genius of modern American democracy. We need to understand why democracy works here before we go about, willy-nilly, exporting the skeleton, rather than the muscle, of actual democracy.

I'm not sure at this point what you mean. Does Lipset, for instance, understand the genius of American democracy? Read the comments to your post and you'll find that not many seem to understand the country in terms that Lipset, Tocqueville or Locke would approve of. They understand it in terms of the latest guru of multiculturalism, who doesn't believe John Locke had anything much to offer that shouldn't be trashed or ploughed under for fertilizer.

And while there are many versions of democracy that appear to work in particular locales, it's the Lockean versions, with the US in the fore, that are bearing the load. The non-Lockean (or dare I say counter-Lockean and counter-Enlightenment) systems may work for the time being, but they're not "load bearing members." So it isn't necessarily a good sign if we're following their lead instead of the other way 'round. They haven't been tested.

So if the conception of the genius at the heart of America doesn't have much respect for that reality (as opposed, for instance, to the "genius" of Marcuse) then they won't comprehend or give weight to your flag waving. To them, it's a foreign tongue.

My take on the ruling isn't the same as yours. But that discussion can wait for a clearer vehicle than Hamdan. To me the core issue is whether we're surrendering sovereignty to non-Lockean institutions, or they're surrendering sovereignty to our core values. If convergence is happening are we, or they, the point of the sword? This ruling appears to give deference to these internationalists--values that were formed before we had a genuine terrorist threat. But the ruling isn't quite that clear, and it seems to defer to congress more than to internationalism.

I'd say we haven't yet come to grips with these issues, but when we do the resolution may very well not be formed in terms of the "innocent until proved guilty" paradigm. That is a criminalist standard of justice, but if the criminal has the real intent of destroying a city that standard isn't appropriate. Nor will it work. Calling that choice "tough" doesn't quite capture the nature of the dilemma, unless it's your self, your family, your friends and loved ones, your institutions and your city that weigh little against the value we place on a Hamdan. Those who don't grasp the terrible nature of that Humean Horror have no right to decide for anyone.

And that's the principle that must ultimately out.

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