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Returning to the Cave: The Loss of Classical Light in Modern American Teaching

Every State is a community of some kind,
and every community is established with a view to some good…
He who is unable to live in society, or who has no need
because he is sufficient for himself,
must be either a beast or a god….
The determination of what is just is the principle of order in political society.

Excerpts from Aristotle, Politics, Bk. I, Chaps. 1 and 2

 

I. Introduction

I begin my remarks by expressing my cordial thanks to the members of the Hellenic American Professional Society of Northern California for inviting me to speak at this Annual Commemoration of Greek Letters Day.  I consider it a privilege to be invited by you to address a subject which, though concerning education, is far from merely academic: the progressive decline, during the past half century or so, of classical teaching and learning in our public and private schools, colleges, and universities.  I look forward to the conversation among us, which I hope will follow my talk, concerning the theme of my remarks.

The title I have given to my remarks is “Returning to the Cave: The Loss of Classical Light in Modern American Teaching.”  The title refers to a celebrated image constructed by Plato in Book 7 of his dialogue, the Republic, written sometime between 386 and 367 B.C.  The Republic is generally considered to be Plato’s greatest work.  It is an inquiry into the nature of Justice, explored partly through the imaginary construction of an ideal state which, Plato makes clear, could never actually exist in this world.  It is, as Socrates tells us in the dialogue, only “a model laid up in heaven” illustrating philosophical judgments about the nature of the truly just human being and state.

The image of the cave in the Republic follows Plato’s description, in Book 6, of the relationship between different kinds of knowing to different aspects of being (or to what really is) in comparison to opinions about different kinds of appearances (that is, what only seems to be).  Plato’s analysis tells us, for example, that we can know with certainty the things that mathematics can teach us; but we can only have opinions –without such mathematical certainty– about the world of appearances, and images of visible objects.

After exploring these questions about the nature of knowledge and being,  appearance and opinion, Plato turns, in book 7, to an image of “human nature in its educated and uneducated state.”  Notice: Plato tells us in advance that he is about to give his audience –us–  an image of “human nature in the educated and uneducated state.”  It is for this purpose that he constructs the metaphor of the cave from which I take the title of my talk.  Let me quote the dialogue at this point, which describes the cave shown in the diagram I have handed out.  Socrates is speaking:

“Imagine men in a cavelike underground dwelling with a long entrance, as wide as the cave and open to the light.  The men have been chained foot and neck since childhood.  The chains keep them in place and prevent them from turning their heads, so that they can only see forward.  Light comes to them from a fire burning at a distance above and behind them.  Between the fire and the prisoners, higher than they, imagine a road with a low wall built alongside, like the screen set in front of puppeteers, over which they show their puppets…Then see people walking along the road carrying things on their heads, including figures of men and animals made of stone and wood and other materials.  These extend over the top of the wall…

“Do you think such prisoners would ever see anything of themselves or each other or the things carried by the other people except their shadows thrown by the fire on the facing wall of the cave?”

“How could they [Glaucon replies] if their heads were held still all their lives?”

“Now, if they could talk to each other, don’t you think they’d believe what they saw was reality?”

“Necessarily.”    —Republic, Book 7, 514-515b).

This image looks so much like people chained to chairs in front of their television sets, that I can’t resist remarking on that.  But Plato is concerned with something even more fundamental than such particular numbings of our wakefulness.  After giving the basic description of the cave I just quoted, Socrates goes on to describe what would happen if one of the men was freed from his chains, and turned around to see both the fire and the objects carried along the road.  He describes how the light of the fire would at first blind such a person, and how he might be confused when he first sees the real objects he had only seen before as shadows, while he was in chains.  Socrates then continues his description of the cave and its inhabitants.  He asks us to imagine someone who was dragged entirely out of the cave into the real light of the sun.  He asks us to consider how the sun’s brighter light would at first completely blind such a person, and how he might even be tempted to run back into the cave because the shadows seemed so much easier to see (at first) than what was outside the cave.  But then, again, Socrates asks us to consider what would happen if such a man stayed long enough out of the cave for his eyes to adjust to the sunlight.  Wouldn’t he be filled with wonder and delight at the clarity and beauty of what he saw, compared to the dim and shifting shadows that were all he was able to see before?  Finally, Socrates asks us also to imagine what would happen if the man came back to the cave and sat down in his old place.  “Wouldn’t darkness fill his eyes,” Socrates asks, “after suddenly coming in from the sun?

“And if again he had to ‘evaluate’ those shadows down there in competition with the perpetual prisoners, then in that short time of habituation in which his eyes were dimmed and unrecovered, he’d make a fool of himself, and they’d say he came back from above with ruined eyes and the trip wasn’t even worth the attempt.  And if they could get their hands on the one who was trying to release them and lead them upward, wouldn’t they kill him?”

“Most violently,” Glaucon replies.

Now anyone even a little familiar with the story of the life of Socrates is likely to recall, when hearing this description, what actually happened to Socrates himself because of his devotion to philosophy, and his constant questions about the nature of things other Athenians took for granted: the Athenians sentenced him to death.  (We might also be led to think of Jesus, whose early followers called him “the light of the world,” 5 Matthew 14; see also 8 John 12.)  And we can all understand the factual basis for the image: whether we go into the light from the dark, or the dark from the light, our eyes need some time to adjust to its surroundings.  It is a often a struggle to learn something new; and it is sometimes difficult to see things from the point of view of others who haven’t.

I have taken this time to recall to you Plato’s image of the cave in some detail, because considering it may suggest answers to the central questions raised by my subject:  First, why has classical teaching and learning declined so much in the last half of the twentieth century?  And, second, what have we lost and what further may we be in danger of losing by that decline?  To help get your attention to what I am about to say, let me give you my short answers to these questions:  First, what we have lost: We have lost an appreciation of the paramount importance of seeking to understand the nature of the human soul and spirit. And what are we in danger of losing?  We are in danger of losing the democratic civil liberties that are the greatest legacy of classical learning and teaching, and sinking voluntarily into a disguised, but nonetheless progressive and degrading, slavery to our economic, material existence. That is why I say that the topic of my remarks is far from merely an academic subject.

II.  The Decline

 

Before giving you the reasons for these sobering conclusions, let me define, or at least describe, what it is we are talking about.  When I was a high school student in Philadelphia in the 1950’s –nearly half a century ago– it was assumed that if you were headed for a college education, you would probably study Latin.  Fifty years before that, it would also have been assumed –among the very few then privileged to plan a college education– that they would probably also learn some ancient Greek.  Now, of course, the reverse assumptions are made.  I do not know the statistics, but we can take informal notice of the fact that the study of Latin and ancient Greek in our public and even private schools is now uncommon, even rare.  Likewise, in the 1950’s, a general liberal education was presumed to include at least two years of introduction to what has been called “the canon:” a study of the greatest works of Western literature, beginning with the ancient Greek philosophers, playwrights, and historians.  In fact, for most of nearly 2000 years, no person who sought to be educated would have failed, for example, to read either Euclid’s Elements of Geometry or Plutarch’s Lives of The Noble Grecians and Romans.  The twentieth century “canon” also embraced what Robert Hutchins called the writings of the “Great Conversation:” works which assumed some acquaintance with the great ancient writings and, philosophically, continued the inquiries the ancient Greeks had so notably begun.  When I speak of the abandonment of “the classics,” I therefore mean to include those works of the Renaissance, the Enlightenment, and of modern times that acknowledge the continued importance, in our search for human understanding, of considering what the ancients had to say.  Alfred North Whitehead, for example, a great twentieth century mathematician and natural scientist, famously observed that whenever he (Whitehead) approached a philosophic problem, “he met Plato coming back.”  He also said that “all of Western philosophy is a footnote to Plato.”

The gradual decline in classical teaching and learning that began after World I  — when extended formal education became more and more common– accelerated after World War II.  In the late 1950’s, after the Russians launched Sputnik, the first man-made satellite, the subordination of liberal learning to contemporary physical science gave a shock to the classics.  The flower power movement of the late 1960’s, launched nearly contemporaneously with the free speech movement at the University of California, began a radical questioning of the value of classical studies in higher education.  It instituted student demands for greater control over the curriculum which led, finally, to total rejection of the idea that to be educated meant, at least partly, to be educated in the classics.  The “canon” was condemned as the bastion of “dead white males,” unfairly depriving students, first, of familiarity with cultures other than that of Western civilization; and, second, of introduction to subjects perceived to be more immediately “relevant” to the ordinary anticipated challenges of everyday life.  By the early 1980’s, even Stanford University had abandoned the requirements of its traditional core curriculum, and faculties of colleges and universities throughout the United States trembled –and I mean literally trembled– at the increasing demands of students for more “relevant” and “politically correct” curricula of their own choosing.  The faculties trembled in their classical convictions, and then they fell, mostly in the name of greater democracy in education.  The result has been an increasing ignorance –I would say a generally abysmal ignorance– of the philosophical and spiritual roots of that democracy itself.  Nominally “well educated” young people are, typically, now almost entirely ignorant of the seminal teachings, both secular and religious, of Western culture.  The scope of such ignorance is often astounding.  It commonly includes ignorance, not only of the ancient, Renaissance, and Enlightenment legacies of philosophic thought and Judeo-Christian doxology, but even of the chief events of World War II.  In the broadest descriptive terms, this is the kind of educational loss we are talking about.

 

III. The Nature of The Loss

 

“And a good thing, too,” many will be apt to say.  In the following remarks, I will summarize, as forcefully as I can, the major arguments of those who are happy to see classical teaching and learning rejected as a standard for higher “liberal” education.

It is no accident, these opponents of classicism might confidently assert, that the decline in classical education started after World War I and rapidly accelerated not long after World War II.  Ten million people were killed in World War I; twenty million in World War II.  These atrocities of the first half of the twentieth century testify to the bankruptcy of the classical ideal of education and classical modes of thought in terms of advancing the human condition.  World War I was entered into by government leaders, and fought by a European officer corps, entirely educated in the classical tradition.  Both the Nazis and the Italian Fascists sought to imitate ancient pagan glories even in their architecture, as their World War II conquests progressively enslaved the democracies of Europe.  The Germans were, moreover, the greatest classical scholars of the nineteenth and twentieth centuries.  Nearly ten million Jews, Slavs, Gypsies, and other Non-Nordics were slaughtered in the name of a pagan ideal as interpreted by the Nazis.  Nor were these the only 20th century political catastrophes related to classicism.  Thirty million or more of the Soviet people were butchered by their own regime in the name of Marxist-Leninism and Soviet Communism.  Karl Marx was deeply educated in the classics; in fact, a great classicist.

In contrast, these opponents of classicism may go on to argue, look at what the 20th century has given us as a result of greater education in the sciences rather than wasting hours contemplating abstract speculations of classical philosophers and theologians: Epidemic disease has been conquered to a degree that would never have been imagined in the ancient world.  In developed countries, we have now arrived at a point where there is more than a fifty percent chance that a girl born today will live past 100.  Longevity has been greatly increased, and both the incidence and risks of serious illness and disease have been greatly reduced, in advanced societies.  Moreover, if economic prosperity is a human good, look at what has been happening here, and in Europe, and in Asia, since we generally got beyond the classics in Western education.  The developed nations of the world may, at this very moment, be enjoying the most prosperous times in world history.  Technological advancements have brought the peoples of the world closer than they have ever been, and one does not have to read Plato, or Aristotle, or Sophocles, or even Alfred North Whitehead, to operate a computer or start up a dot com bringing new economic efficiencies to the world.

Finally, these successful iconoclasts may argue, as to a more democratic rule in education: How can you possibly object to the principle that a student should be free to choose to study whatever the hell he or she wants to study, and not what someone else tells the student is best for him or her?  Isn’t that what democracy is all about?  It is my life, and I should be free to choose how I spend my own dollars and my own time in my own education.

I take the preceding and kindred arguments to be the chief justifications –historical, philosophic, moral, political, social, and academic– for minimizing, if not altogether eliminating, study of the classics from higher education in America.

How can these diatribes be answered?  Let me begin with the later arguments first, the ones about how well we have been doing materially without an emphasis on the classics as a necessary, or at least highly desirable, part of higher education.

It cannot reasonably be disputed that modern medicine and technology have generally advanced our physical and economic well-being.  Furthermore, although the ancient Greeks were among the first human beings we know of who inquired methodically into the nature of the material world, they have very little to teach us about the applied sciences.  Except, of course for their original foundations in observation, logic, and mathematics.  It is worth pointing out in this connection, for example, that Charles Darwin, commenting on how he arrived at his theory of evolution, said “Linneaus and Cuvier have been my two gods, though in different ways.  But they were mere school boys compared to old Aristotle.”  (Aristotle’s  biological and botanical classifications are, by the way, still used in those sciences.)

The valid claims for the gifts of modern science do not, however, dispose of the question at issue.  The question about the relative value to us as human beings of educationally devoting ourselves to applied science (that is, seeking to learn how to manipulate the material world to our benefit) as opposed to inquiring into the classical questions of moral philosophy (such as “What is our nature as human beings?” “Is there a human nature?” or “What is a good life?” or “What is justice?”) is not a 20th century question.  It is a question, in fact, that was first raised by Socrates in the fourth century B.C.; and it was his answer to this question that cost him his life. In Plato’s dialogue, the Apology, Socrates tells us that when he was a young man, he was intrigued by the inquiries of  natural philosophers such as Anaxagoras into the nature of the physical world.  (Anaxagoras is perhaps the first known person to identify the moon and other heavenly bodies as entities which were as material as the earth, and not composed of more ethereal substance.)  But Socrates concluded that inquiring into the nature of the material world was not as important to him as other inquiries.  He thought the most important thing he –or any other human being–  could come to know and understand was himself, as the Delphic Oracle told him he should try to know.  And so the Delphic admonition, KNOW THYSELF, became the wellspring of Western philosophy.

If we want to see what we have lost from our virtual abandonment of classical learning and teaching, we need to think about the choice that Socrates made.  His choice was one that involves reflections and decisions each one of us is still free to make.   It was a choice that proceeded from the opinion that an unexamined life is not as likely to lead to realization of the best in us as an examined life.  It is a choice that includes consideration of what critical thinking is; what the alternatives are for our human conduct; what these alternatives presuppose or imply; and how we can make the most practical, prudent judgments about the course of our lives in relation to particular situations.  So if we do not want to live mechanical lives  –lives shaped mostly, or even entirely, by things outside ourselves– but, rather, want to reflect upon who we are sufficiently to increase our chances of living with integrity to ourselves, then we must consider the wisdom of the choice Socrates made.  He chose to devote his life to inquiring into the nature of human being and our ethical and spiritual condition.  As I shall argue, abandonment of classical learning in its larger sense is, in essence, an abandonment of that Socratic inquiry.

Unlike the progressive findings of applied science, the most recent opinions about our ethical and spiritual condition are not necessarily the best or the most illuminating.  In this sphere of human concern, “newer” is not always “better.”  In certain respects, the ancients had a firmer and clearer grasp than most celebrated moderns do of the character of our human condition.  In this assertion,  I share Professor Bernard Williams’ opinion, expressed in his fine book, Shame and Necessity (University of California Press, 1993), that when we study the ancient Greeks, we are looking at ourselves.  “The Greek past,” Williams has written, “is specially the past of modernity…The modern world was a European creation presided over by the Greek past.  In some ways, the basic ethical ideas possessed by the Greeks were different from ours, and also in better condition” (emphasis added).  Or, as the poet Shelley wrote more enthusiastically: “We are all Greeks.  Our laws, our literature, our religion, our arts have their roots in Greece.”

Who can ever know who he or she is, if they do not inquire into how their past has shaped them, and what implicit choices they have made about the character of the lives they are living, not deliberately and consciously, but by influences that have shaped them?  None of the writings of Plato, Sophocles, St. Augustine, Rousseau, Hegel, or Freud (to take just a few examples related to the quest for self-knowledge) is now generally required undergraduate or university reading.  Such condoned ignorance about the most thoughtful inquiries into human nature compounds the difficulties for anyone wishing to follow the Delphic admonition to Know Thyself as the first principle of philosophy for mature intellectual souls.

And this brings me back to the first, and perhaps most chilling arguments against classical education: Its alleged identification with the tragedies of World War I, World War II, and 20th century totalitarianism.  The answer to those arguments is essentially this:  They are exactly wrong.  The twentieth century has provided perhaps the greatest examples in all recorded history of the tragic consequences of the abandonment of classical moral thought and, later, the influence of corrupted and misunderstood ideas upon human events; consequences that have rightly moved its surviving victims to say “We must never forget.”

The German Kaiser, intoxicated with his personal power as Emperor and arrogantly determined to expand it, had relieved from the helm of his government one of Europe’s most prudent statesmen, his Prime Minister Otto Von Bismarck.  It is now known that almost immediately after the order had gone out from the Kaiser to his general staff to commence the hostilities of World War I, the Kaiser, realizing the tragedy that was about to unfold, tried to stop it.  But it was too late.  The technology of the early 20th century military machine had been unleashed, and could not be stopped in time to undo it.  In response to the invasion of Belgium, the idealistic young men of England, following their patriotic ideals (and belief in a short war) enlisted in a war led by a general staff that stupidly refused to adjust its critical thinking to the technology of modern warfare, leading to the truly tragic slaughter of almost an entire generation of fine English youth.  One does not have to be a Platonic scholar to conclude that it was not anachronistic classicism that led to this slaughter; it was, rather, ignorance and disregard of the importance of the classical virtues of prudence, temperance, and even courage.

As to the Soviet regime, its chosen philosopher, Karl Marx, had abandoned classicism for a “dialectical materialism” he invented, a conceptual engine derived from Hegel’s logic but loosely founded on ideas of applied (sociological) “science.”  The Soviets prided themselves on the “scientific” nature of their regime –and its godlessness.  And though Nietzsche was an ideological foe of organized Christianity and more skeptical even than Socrates, he would have detested the Nazi version of the “superman” as a totally ignoble perversion of his vision of human being at its best.  The Nazi ideologues were, moreover, supported in their fanaticism by a philosopher –Heidigger– who specifically rejected the ancient classics (Socrates’ thinking in particular) as the source of what he called a “magnificent error.”

The tyrannical corruptors of twentieth century political life were partly motivated by a will to personal power, and partly by claims related to the achievement of human “freedom” as they claimed to envision it.  The idea of “freedom” is one of the paramount –perhaps the paramount– political idea of our world civilization.  The classical idea of freedom was grounded on an understanding of human nature and the duties of ethical behavior.  We must carefully consider what abandonment of attention to this idea of freedom may mean.  Is a healthy future even possible for any civilization in which the idea of “freedom” becomes progressively confused and identified, not with duty, rationality, and ethical behavior, but with greater and greater individual license, and absorption in the pursuit of narrow material self-interests?  Both Plato (in the Republic) and Alexis deTocqueville (in his prophetic work, Democracy in America) expounded the tendency of democratic peoples to turn liberty or freedom to license, and to forget the importance of duty and rational moral behavior as indispensable to the best and wisest possible realization of human being, whether in community or individually.  Where is there now, in our technological consumer society, anything with a power even remotely comparable to this tendency –the now socially approved tendency to look out only for ourselves– to help remind us of its possible consequences, and to help combat it?  It is classicism that reminds us, as the ancient Greeks thought and believed, that our human being is inseparable from our shared community with other human beings.  In Aristotle’s maxim: “Who would live alone…is either a beast or a god.”

In sum, among the things we have lost in our abandonment of classicism –and I won’t even mention in detail the aesthetic sublimity of its literature– is promotion of an understanding of what it means to live free in community with others, through the use of prudent reason as a guide and regulator of our self-interested passions; a deepened understanding of our ethical and spiritual condition, rather than an almost exclusive preoccupation with our economic and material habits and aspirations.  The  characteristic disdain of contemporary Western culture for the timeless teachings of classicism, is a potentially tragic misdirection; one that threatens to disenable us from achieving our fullest human potential as we swim more and more deeply into the materialistic consumer morass.  And this brings me to what I regard as the greatest potential future loss we may suffer as a result of the decline in classical teaching and education: the actual threatened loss of our democratic freedoms.

 

IV. What We Are in Danger of Losing

 

We are confronted, right now, here in the United States, with a potentially fatal Constitutional crisis of epochal proportions; one that is, however, virtually invisible to the vast majority of our people except in certain of its effects.  This crisis is directly related to the decline in respect for classical education as understood by the Founding Fathers of our democratic republic.  It revolves around the specific question: how should the United States Constitution be interpreted if those who interpret it are to carry out the original intent of its framers?

The characteristic twentieth century ethical and philosophic view is one that may be called “historicist relativism.”  It is cogently expressed in the view that “there are no absolutes;” that all opinions are no more than the expression of a set of biases local to a specific time and place (including, of course, the view that all opinions are just the expression of the biases of a specific time and place).  The dominant scholarly view of what law itself is, reflects this 20th century relativism.  It began its ascendancy in American legal thought with an opinion by Justice Oliver Wendell Holmes, Jr. in 1928.  In a case called Black and White Taxicab Co. vs. Brown & Yellow Taxicab Co. (276 U.S. 518, at 533-34, 1928), Justice Holmes rejected as a “fallacy and illusion” the idea that judges might be able to discern, through reason, enduring principles forming the substance of the common law.  Justice Holmes declared in that opinion:

“If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was.  But there is no such body of law.”

We need to consider this statement of Holmes’s in the light of Plato’s metaphor of the cave.  Viewed from the classical perspective, Justice Holmes was declaring in this opinion: “There is no fire; there is no sunlight.  There are only shadows.”  Holmes’s opinion was a seminal expression of a view of the law called “legal positivism” or “legal realism.”  It is a view holding that the law has absolutely no moral basis other than what a majority of people, or their representatives in a democratic republic, say the law is.  Under this opinion of what valid law is, if a law were duly enacted through established procedures –say by a Constitutional Amendment– declaring, for example, that the property of all people of Greek-American descent, or Jewish blood, or Islamic faith, was to be forfeited to the State, and that all such people were to be interned in concentration camps –or worse– there would be nothing inherently unjust about it, as much as you might personally dislike it!  For justice is defined totally, under this view, by what a majority of people say that it is.

This is not the view of the law taken in the 18th century by Thomas Jefferson; or in the 19th century by Abraham Lincoln; or even in the 20th century by advocates of conscience such as The Reverend Martin Luther King, Jr..  But it is the dominant view among legal theorists today; and not only academics, but the view of many of our most powerful judges.  The view of the foundations of law taken by Jefferson, and Lincoln, and King, was that expressed in our Declaration of Independence: that the “laws of Nature and of Nature’s God” endowed all men, who are “created equal,” with certain unalienable rights, and that among these are the rights to “Life, Liberty, and the Pursuit of Happiness.”  Lincoln’s view, in other words, was, like Jefferson’s, that the principles of the Declaration of Independence were intended by the Founders, following their Enlightenment beliefs, to be written into the U.S. Constitution.  Lincoln believed, in effect, in principles of natural right and natural law, generally in accord with the idea of law propounded by St. Thomas Aquinas, namely, that law, properly understood, had, by definition, to be

an ordinance of reason
for the common good

promulgated
by those who are at the head of a community.

This Thomistic definition of law has its roots, in turn, in the teachings of ancient moral and political philosophy; more specifically, in the writings of Aristotle.  It was on the basis of this view of the law that Martin Luther King, Jr. was able to say that his famous “I Have a Dream” speech at the Lincoln Memorial in 1963 was a call to the conscience of America to make good on its promises in the Declaration of Independence.  It is on the basis of this natural right view of the law, that we can say a law that is unjust cannot command our consciences, even though we believe in the principle of majority rule.  As Thomas Jefferson said in his First Inaugural Address:

“All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”  (emphasis added)

In contrast to the natural right view of the law held by our Founding Fathers, a number of the present Justices of the United States Supreme Court –including the Chief Justice, and perhaps even the present majority of Justices– have declared themselves to be legal positivists, opposed to the Lincolnian view of the Constitution and the principles of natural right and natural law referred to in our Declaration of Independence.

Let us consider for a moment, the likely potential practical consequences of this state of affairs.

We are an increasingly diverse society, enjoying the liberties of a democratic republic for a longer period than that enjoyed by any great power in world history.  We have entered into a period of moral relativism in which the dominant public ethos is one of fierce individualism and an almost obsessive consumerism.  The most powerful interpreters of our laws –and, indeed, the major portion of the legal profession as a whole– accepts no compelling moral basis for the nature of our law other than the principle of majority rule.  In fact, they are imprudently dogmatic in the view that there are no absolutes.  The classicist approach to matters of human being is, on the contrary,  not intrinsically dogmatic.  It is skeptical: it asks questions, and more questions, and more questions.  But it holds to the view that there is a human nature, and part of its nature is endowed with reason and right.  Is not abandonment of this view in our highly diverse society a recipe for increasing social discord among competing groups? Is not such rejection of all principles of conscientious reconciliation –other than the force of a majority– a guarantor of increasing discord in a highly individualistic, fragmented community?  And if such discord escalates to the point of regular, traumatic violence –as it nearly did in the decade of the nineties– isn’t it likely that the public at large –the majority– will be willing, increasingly, to narrow the scope of our civil liberties to obtain greater civil security against violence?

This is the ultimate future prospect we face from the progressive decline of respect for classical teaching and learning, and the timeless human search for enlightenment as to the nature of our human being.  It is an abandonment of what classical learning has to teach us in the false name of democracy, from a shadowy view of individual self-fulfillment, and from a short-sighted elevation of material well-being above concern with our full human character as material and spiritual beings.  It is an insistence that we return to the cave, and continue to stare at the wall, and deny the existence of a clearer light.  In this situation, I genuinely fear for my grandchildren’s future freedom.  What, I wonder, can we do about it?

 

(C) January 23, 2001 Harrison Sheppard

 

The War on Terrorism: The Conflict Between Liberty & Security

Published in The Hellenic Journal, November, 2004
A Talk to the Hellenic Law Society, San Francisco, October 14, 2004

 

It has been just over three years since the Twin Towers in New York City were destroyed in what may be considered the single most horrifying and destructive act of foreign aggression on the territory of the United States in its history.  That day, according to the President of the United States and others, “has changed everything.”  “Everything” is a lot, surely too much, and I presume it is wise not to take this declaration too literally.  One thing it appears to have changed, however, is the degree of the U.S. government’s willingness to engage in “preemptive” war as part of the “war on terrorism” declared by the President following the Twin Towers (and Pentagon) disaster.   Citing the war on terrorism as part of his justification, and as a preemptive strike against possible use of weapons of mass destruction against the United States, the President ordered the invasion of Iraq.

I do not intend in this talk to contribute to the current debate about Iraq. Whether the invasion of Iraq was justified, or the extent to which it has or has not been “successful,” or is likely to bring democracy to that country, or even whether it has reduced or increased terrorism against the United States, are not the subjects of my remarks.  Nor is the war on terrorism as it is being conducted against other nations, their leaders, or identified foreign terrorists the occasion for this talk.  It is exclusively concerned with the war on terrorism as it is being conducted in effect by the government against U.S. citizens by detaining them indefinitely in prisons or military facilities in the U.S. and abroad, especially in Guantanamo Bay, Cuba.  These actions are now being challenged in U.S. courts.

The title of this talk is, therefore, The War on Terrorism: The Conflict Between Liberty & Security.  Following Euclid’s method of enunciating geometrical propositions before demonstrating their truth, I will first plainly summarize, in two propositions, my view of the government’s position in the detention cases:

(1) The position of the U.S. government in the citizen detention cases is a repudiation of fundamental principles of Anglo-American law developed over the past 800 years, beginning with Magna Carta in 1215, advancing the democratic rule of law and the cause of human liberty against tyrannical government.

(2) To the extent that the government’s position is allowed to prevail, we will have lost some of the most important liberties for which our American republic stands, and made very long and possibly decisive steps toward dictatorial rule.

Let me begin to demonstrate the reality of these propositions by first acknowledging some relevant facts of American political history, as well as our personal habits, inclinations, and choices as we consider the conflict between liberty and security in the conduct of our own lives.

The present administration is not unique in asserting powers beyond those authorized by the U.S. Constitution during wartime, or even during times of threatened war.   In 1798, during the administration of John Adams  –the second President of the United States— the U.S. feared possible war with France, then in the throes of its Revolution.  On July 14, 1798  –Bastille Day, France’s Fourth of July– Congress, consistent with Executive policy, enacted legislation that seriously curtailed American civil liberties.  The “Alien and Sedition Acts,” as they were called –the “PATRIOT ACT” of its day– provided that any person, alien or citizen, could be fined up to $5,000, and imprisoned for up to five years, for undertaking to oppose or defeat the operation of any U.S. law or

threaten any officer of the U.S. government with any danger to his character, person, or property, or attempt to secure any insurrection plot, or unlawful assembly or unlawful combination (emphasis added).

These Acts also provided that anyone could be prosecuted for printing, writing, or speaking in a scandalous or malicious way against the government of the United States, either House in Congress, or the President, with the purpose of bringing them into contempt, stirring up sedition, or aiding and abetting a foreign nation in hostile designs against the United States.1

What this meant  –and was interpreted to mean—was that anyone who, for example, expressed an opinion such as that “John Adams is a damned fool,” or “John Adams doesn’t know what he is doing in carrying out an anti-French policy,” could be thrown in jail for five years.  In fact, under this Act, Benjamin Franklin Bache, Benjamin Franklin’s grandson, was ordered arrested by a federal judge for printing a newspaper article questioning the integrity of a document sent to Congress by President Adams.  The Alien and Sedition Acts so alarmed Thomas Jefferson (who was John Adams’s Vice-President), that Jefferson urged his home state of Virginia and other States to adopt resolutions providing that Acts of Congress in violation of the Constitution could be “nullified” by the States.  Congress made it clear, however, that due process of law would still be observed in enforcing the Alien and Sedition Acts, and that truth was admissible in defense.  The Alien and Sedition Acts expired in 1801, at the end of President Adams’ term of office.2

We don’t have to go as far back as the 18th century to find serious compromises of American civil liberties by Congress during times of war or threats of war.  Similar acts were passed during World War I, and a lot of people during that period –mainly, but not exclusively, resident aliens– were rounded up by the U.S. Government, arrested, and jailed for suspected “sedition.”  It was during this same period that one federal official obtained recognition as an especially effective “patriotic” American law enforcer; his name was J. Edgar Hoover.

Some members of this audience may be old enough to have been aware of the internment of Japanese Americans during World War II under Executive authority.  Many of you will recall that Congress –confessing governmental injustice– awarded reparations in the 1990’s to Japanese-American citizens for those unconstitutional internments.3 Finally, I am sure there are people here this evening  who recall, during the height of the Cold War and what has come to be known as the “McCarthy era,” Presidential Executive Orders and Congressional Acts requiring “Loyalty Oaths” and disclosures of political affiliations as conditions for federal and state employment or federal funding  –even, for example, to obtain federal college, university, or law school tuition  loans.  As you know, George Anastaplo, a great Greek-American honored with this Society’s first Athenian Award, had the principled courage to refuse to answer questions about his political beliefs when questioned about them  as a condition of admission to the Illinois State Bar by the State Supreme Court’s “Committee on Character and Fitness.”  Anastaplo relied for his refusal upon the political principles stated in the Declaration of Independence, and his First Amendment rights under the U.S. Constitution.  He was refused admission to the Illinois State Bar because of that principled courage, and then lost his appeal to the U.S. Supreme Court (which he argued before the Court himself) in a 5-4 decision that has evidently been overruled by later cases.  Anastaplo had the satisfaction of reading Justice Hugo Lafayette Black’s concluding words in his eloquent dissent in the Anastaplo case (which Black requested be read at his own funeral as his political testament) namely, “We must not be afraid to be free.”

What can or should we make of all this?  We can certainly infer that the government is inclined to be quick to put security above liberty when a policy relating to war is involved   –whether it is an actual fighting war, a “Cold War,” or even a threatened war.

The inclination to prefer security over liberty in threatening circumstances is an understandable one.  It is reflected in the priorities we ourselves adopt virtually every day in our personal lives.  Do you lock the door when you leave your home or apartment?  That’s a small surrender of your liberty to come and go as you please without locks and keys, a choice you make to avoid threats to the security of your property and person.  Will you agree to stay indoors if you hear an emergency alert on the radio, and the government instructs you to do so?   I myself recently did that in Cuba, at a hurricane alert. Do you avoid travelling on certain streets in certain neighborhoods in certain cities, at least at certain hours of the day or night, out of a concern for your safety?  Most of us do.  We thus often surrender voluntarily a portion of our liberty in the interest of greater security.

We are regularly accustomed to making choices in favor of greater security at the cost of less liberty.  We may say that life itself consists of a constant balancing between the relative weight we give to our liberty and to our security.  I might want to take the liberty, for example, to spend all the available money I have on a world tour, but that would threaten my financial security for years to come, so I choose not to give myself that liberty.  We say some people are less “risk averse” than others; meaning they are more willing to jeopardize their security in favor of gaining greater liberty and exercising a wider range of choices.   We call those more “risk averse,” who are content to lead highly restricted lives, taking minimal risks in order to maximize their security.  However we may strike the balance between liberty and security for ourselves,  the impulse to favor security over liberty, when there are known threats to our security, is entirely predictable, and understandable.

Something else, however, perhaps something much greater, is at stake when we permit the government to make the choice of greater or lesser liberty for us.  Where do we want the government to strike this balance?   How much liberty are Americans, as a people, willing to give up for the sake of protecting perceived threats to our national security?   How much difference does it make to us when we are not given the essential facts?

Let us look at the present U.S. government’s position on how much liberty we should give up to secure ourselves against terrorism.  Prof. Douglas W. Cassel, Jr. summarized the government position in a breakfast talk to members of the American Bar Foundation on August 6, 2004 as follows.  (I will be quoting further from Prof. Cassel’s talk):

The government’s theory in these cases is that the President, as Commander in Chief, on the basis of secret information unknown to anyone outside the Executive Branch, has the authority to designate an individual as an enemy combatant, to imprison that person with no prior judicial authorization or express congressional authority, to hold that person in prison without access to a lawyer, without access to courts, without charging the person with a crime, without conducting any trial, and without having due process of law.

Moreover, the President has asserted this authority to imprison the person indefinitely without limit in time.  The only limit was until the war on terrorism is over.  And…when will the war on terrorism be over, and how will we know if it ever does end?4

Make no mistake about what this means.  This means that the present government of the United States is asking each one of you to surrender to the President:

(1) your right to know the information the federal government has if it chooses to arrest and imprison you, or a member of your family, or a friend, as a suspected collaborator with a suspected terrorist or “armed combatant,” even though none of you has ever even heard of the suspect;

(2) your right to know the charges that may be filed against you that are the basis for your imprisonment;

(3) your right to communicate with anyone of your choosing;

(4) your right and liberty to contest the government’s claim in any court;

(5) your right to a lawyer and the liberty to defend yourself against the government’s claim; and

(6) your right to know when you, or a member of your family, or a friend will be freed from prison; in fact, your or their right ever to be released from prison until the government declares that the war on terrorism is “over.”

Is this the balance between liberty and security you are willing to strike in the conflict between liberty and security in the present war against terrorism?

The question I have just posed is not merely rhetorical, and I do not presuppose its answer.  Before I offer you further evidence in support of the two propositions with which I began this talk, we need to consider what may be the best argument for the government’s position, particularly as it has been advanced by the Attorney General of the United States in the detention cases.  I believe I can understand much about how and what the government is thinking, having served as an attorney for the U.S. Department of Justice and the Federal Trade Commission in Washington, D.C. and elsewhere.  Here’s the case: We are confronted with what may be the greatest threat this country has ever faced from foreign aggressors.  It is well within the range of possibility that terrorists are presently planning to buy on the black market in arms, or develop with what they can acquire from that market, one or more nuclear weapons capable of being brought into this country and detonated.  I am reasonably confident that this worst-case scenario is in the front of the government’s mind.  A nuclear weapon detonated in New York City, for example, could mean the death of millions of Americans.  In light of this possibility, squeamishness about compromise of our civil rights for actions sincerely directed toward avoidance of this terrible threat may seem misplaced to those responsible for assuring our national security.  The question is, however, whether disregard of the civil liberties guaranteed to U.S. citizens by our Constitution is a necessary part of the unprecedented degree and kind of vigilance the government seems to think this awesome threat requires.  In other words, even assuming the good faith of those who want to lower the constitutional barriers to unfettered exercise of the Executive powers of government, does our ability to avoid this threat really require us to put aside concern for maintenance of our constitutional safeguards against the excessive exercise of the police power in particular?

Law enforcement officers are commonly dissatisfied with the ways in which our constitutional system impedes the efficiency of their investigation of criminal acts.  Some may even long for the good old days when a suspect’s confessions could be compelled by interrogations amounting to torture, and warnings about suspects’ rights to counsel and silence were not required by the Supreme Court’s interpretation of the Fifth and Fourteenth Amendments.  The problem is that this kind of thinking inevitably leads to abuse.   If you assume a particular suspect is guilty, and you don’t have to worry about the Constitution, the temptation may be irresistible to turn mistaken assumptions into convictions by means that falsify the evidence or compel its fabrication.  This approach completely contradicts, of course, our constitutional presumption of innocence.

If you know anything about the Declaration of Independence and the First Ten Amendments to the U.S. Constitution –our Bill of Rights– and you value them as statements of our “unalienable rights to life, liberty, and the pursuit of happiness,” and the guarantee of our civil and political rights as citizens of a democratic republic, then I suspect the balance that the government has struck between security and liberty in the position it has taken about Presidential power is not the balance you would want the government to strike for you.  A majority of the Members of the U.S. Supreme Court appear to reject the government position on precisely these grounds.5

U.S. Supreme Court Justice David Souter, in an opinion in which Justice Ruth Ginsburg concurred, had this to say about the Executive’s power to make the choice for us in striking the balance between liberty and security:

The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each.  In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security.  For reasons of inescapable human nature, the branch of Government asked to counter a serious threat is not the branch on which to rest the nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory. Justice David Souter, concurring in part and dissenting in part in Hamdi v. Rumsfeld, –U.S.—, Decided June 28, 2004 (emphasis added).

Justice Souter voiced this opinion in a case in which a U.S. citizen, Yasar Hamdi, was arrested as a suspected “enemy combatant” on the basis of government allegations that he had received military training in Afghanistan, which Hamdi denied ever having done.  He was imprisoned for more than two years in the Norfolk and Charleston Naval Brigs, without ever being told what the charges were against him, without being given access to legal counsel or to any court, until his father filed a habeas corpus Petition for his release.  In a plurality opinion written by Justice Sandra Day O’Connor in the Hamdi case, the Supreme Court vacated a lower court ruling favoring the government, and remanded the case for further proceedings consistent with due process standards the Court said the government was required to follow, including recognition of Hamdi’s right to legal counsel and a formal hearing.

The most instructive and, in my judgment, correct opinion in the Hamdi case, however, was the dissenting opinion of one of the most conservative Members of the Court, Justice Antonin Scalia, who said that Hamdi was “entitled to a habeas decree requiring his release unless (1) criminal proceedings [were] promptly brought, or (2) Congress has suspended the writ of habeas corpus.”

The end of Justice Scalia’s dissenting opinion directly addressed our need to balance liberty and security in threatening times with these words:

The Founders well understood the difficult tradeoff between safety and freedom.  “Safety from external danger,” Hamilton declared “is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security in institutions which have a tendency to destroy their civil and political rights.  To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis –that, at the extremes of military exigency, inter arma silent leges.  Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.  Because the court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent (emphasis added).

Justice Scalia’s dissent in the Hamdi case is not only instructive; it was virtually prophetic.  Without taking the trouble to subject Mr. Hamdi –or itself– to the rigors of due process required by the Court’s plurality opinion, the government has now released Mr. Hamdi from custody, evidently unable to compose any colorable legal charge against him.  This is, in my judgment, strong evidence, if not virtual proof, of the injustice of Hamdi’s original and extended incarceration without due process of law.6

The views of U.S. Supreme Court Justices I have quoted reflect Prof. Cassel’s observation, in his American Bar Foundation talk, that the detention cases are “some of the most important decisions the Supreme Court has had to make in the history of our Constitution.”  Cassel made this judgment in part by recalling Benjamin Franklin’s answer to a woman’s question after the Constitutional convention had just ended, as to what kind of government we had been given.  Franklin’s famous reply was, “A republic, madam, if you can keep it.”

Prof. Cassel also based his judgment of the unprecedented importance of the detention cases on a review of seven safeguards the Founders believed were needed to secure American liberties.  I will list these safeguards in the order in which Prof. Cassel did:

(1) The Rule of Law: the idea that no person, including the President or any other government official, is above the law or beneath the law’s notice.

(2) Constitutionalism: the government only has those powers expressly or implicitly given to them under our Constitution.

(3) The Separation of Powers under the Constitution, and its system of checks and balances.

(4) An Independent Judiciary, secure in its tenure, and with the power to review the constitutionality of Executive actions.

(5) Due Process of Law, “proclaimed for the first time in our tradition eight centuries ago in the Magna Carta.”

(6) The Writ of Habeas Corpus, requiring the government to justify to a court of law the reasons for imprisonment of any citizen.

(7) Respect for the Law of Nations, articulated in the Declaration of Independence as “a decent respect for the opinions of mankind,” and embodied in the Constitutional rule that treaties ratified by Congress are the Supreme Law of the Land.

To this list, Alexis de Tocqueville, in his enduring and often prophetic book, Democracy in America, added three institutions he thought necessary to help preserve American liberties and prevent or mitigate despotic government: (1) the American legal profession; (2) the voice of private voluntary associations (such as the Hellenic Law Society); and (3) a free press.7

It is not known for certain whether Alexander Hamilton or James Madison, or both of these members of the Constitutional Convention, wrote No. 51 of The Federalist.  These words appear in that number of the series of documents whose exposition of the U.S. Constitution is as close and as definitive a reading as we can get of the intent of the Founders in framing our constitutional system:

Justice is the end of government.  It is the end of civil society.  It has ever been and ever will be pursued until it be obtained, or until liberty be lost in its pursuit.

 

I respectfully suggest that the members of this Society should think about these words, and hope that we Americans, as a people, will not lose sight of their importance.  I have elsewhere pointed out ways in which the American legal profession is no longer typically behaving the way Tocqueville said it should behave to protect our liberty,8 although Prof. Cassel’s talk gives us reason to applaud the American Bar Association and the American Bar Foundation leadership on the issue we are discussing this evening.  With respect to the encroachments on our civil liberties summarized by Prof. Cassel, we need to ask: Where is our “free press” in reporting and challenging them?  The government’s domestic policies relating to its war on terrorism deserve daily front page attention by every one of our major newspapers, and feature treatment in every major network television news broadcast until the polices I have criticized are clearly repudiated.

The opinions of the Supreme Court Justices I have quoted, their authoritative view of the Founders’ intentions in striking the balance between liberty and security, together with the summary of Prof. Cassel’s analysis and my own, constitute my proof of the two propositions enunciated at the beginning of this talk.  If you are persuaded by the demonstration, I would be justified in pronouncing “Q.E.D,” and restating the propositions as conclusions:

(1) The position of the U.S. government in the citizen detention cases is a repudiation of fundamental principles of Anglo-American law developed over the past 800 years, beginning with Magna Carta in 1215, advancing the democratic rule of law and the cause of human liberty against tyrannical government.

(2) To the extent that the government’s position is allowed to prevail, we will have lost some of the most important liberties for which our American republic stands, and made very long and possibly decisive steps toward dictatorial rule.

Belief in the truth of these  propositions suggests to me that one of the critical security needs we have now, is the need for authoritative assurances that the present governmental threats to our liberties cannot stand, and will not prevail.  If we are not to be afraid to be free, we must also not fail to be on our guard.

 

 

(C) 2004, Harrison Sheppard


1 As quoted by Gore Vidal in Inventing a Nation: Washington, Adams, Jefferson, Yale University Press (2003), at pp. 152-153.

2 Ibid., at pp. 153 and 163.

3 While a divided U.S. Supreme Court, in the Korematsu case, upheld the constitutionality of the internments, later revelation of the absence of any basis in fact for the government’s allegations may have led to a different decision had they been known to the Court at the time.

4 Prof. Douglas W. Cassel, Jr., Fellows Breakfast Talk, American Bar Foundation, Chicago, Illinois, August 6, 2004 (emphases added).   Prof. Cassel was a consultant to a number of the lawyers for the prisoners whose cases were recently decided before the U.S. Supreme Court.  The authority claimed by the President summarized in the text has been challenged in amicus briefs filed with the U.S. Supreme Court by the International Committee of the Red Cross, various United Nations Human Rights agencies, the Inter-American Commission on Human rights, and “a long list of international law scholars and experts” ibid.

5 [“T]here are five votes on the current Supreme Court for the proposition that no American citizen arrested in the United States can be held as an enemy combatant even with due process.  If Americans are arrested in America, they either must be charged with a crime or released” Cassel Talk.

6 See, e.g., the news report in the San Francisco Chronicle, Monday, September 27, 2004, “U.S. citizen held nearly three years expected to be freed Tuesday, lawyer says,” which begins as follows: “A U.S. citizen captured in Afghanistan and held without charges since late 2001 as an enemy combatant is scheduled to be released Tuesday and flown to Saudi Arabia, where he grew up, his lawyer said.   Yaser Esam Hamdi, whose case led to a Supreme Court decision limiting the president’s powers to indefinitely hold wartime combatants, will not be charged with any crime under an agreement with federal officials made public Monday.  The agreement requires Hamdi to give up his American citizenship, renounce terrorism and not sue the U.S. government over his captivity. Justice Department officials declined to comment beyond the agreement“ (emphasis added).  It should be noted that while Mr. Hamdi was “captured” in Afghanistan, during most of his captivity he was imprisoned in the U.S., in naval brigs in Norfolk and Charleston.

7 Tocqueville, Democracy in America, Everyman Library., Alfred Knopf, New York, 1994, esp. Chapter XVI, Vol. I, “Causes Which Mitigate The Tyranny of the Majority in the United States.”

8 Sheppard, “The Hazardous Future of Democracy in America: Tocqueville & Lawyers in America,” a lecture prepared for St. John’s College, Santa Fe, New Mexico, scheduled for November 5, 2004, citing, inter alia., “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237 (Winter 1996).