December 2001

Two Cents’ Worth

by Mark A. Panitch, Bar News Editor

"I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People for the American Way — all of them who have tried to secularize America — I point the finger in their face and say, ‘You helped this happen,’" Rev. Jerry Falwell, The 700 Club, Sept. 13, 2001

"All these crimes and sins committed by … Americans are a clear declaration of war on God…." Osama Bin Laden, 1998

Every time someone claims he or she has the Truth, I rush home, pack a suitcase, and get ready to run. One problem with the Truth is that it demands that believers spread it. Another problem with the Truth is that it demands that nonbelievers accept and believe it. A third problem with the Truth is that it is singular and unique. A fourth problem is that Truth doesn’t handle disagreement very well. I know about these things because I am the first member of my family who has never lived in a home where the suitcase was already packed and ready so we could flee when Truth crashed through the front door.

A hundred years ago my grandparents came to America from a land where the soil was drenched in the blood of nonbelievers. Ironically, those who held the Truth on Monday could become the infidel or nonbeliever by Friday. Unfortunately, the irony of the situation was usually lost on everyone. Truth was always too busy spreading itself with fire and steel, and the nonbelievers were too busy running and dying.

The lands my grandparents came from had been overrun at one time or another by Vikings bringing their brand of paganism, Teutonic Knights bringing Christianity, Mongols and Turks bringing Islam, and then wave after wave of Christians bringing nuances of religion that even the best educated found unintelligible. Unfortunately, the question was rarely "do you understand?"; rather, it was almost always the simpler and more expedient "do you believe?" The wrong answer left another generation of widows and orphans. And, tellingly, not much has changed in the last 100 years. Tens of thousands were recently slaughtered in the Balkans because they crossed themselves with the wrong fingers, or not at all. Recently, in Ukraine, one group of Christians sought to disrupt a Papal visit, accusing the Pope of being the Anti-Christ. In those lands, Christians seem to unite only to mistreat Moslems, and Christians and Moslems seem to work together only to harass Jews.

So on arriving in America, my grandparents were stunned and overwhelmed by the open competition of political ideas and religious beliefs. When religious proselytizers knocked on their door, they came with books and pamphlets — not knives and axes. When the ward committee man came around, he brought a basket of fruit and stayed to have a cup of tea. The idea that men could vote regardless of religion or property ownership was breathtaking. The idea that the vote might actually count was beyond their experience. The idea that you could have public discussions — or even heated arguments — about religion or politics without any consequences at all convinced them that, despite all the hardships of immigration, they had made the right decision.

Of course, Grandpa and Grandma became more sophisticated. After all, in "Americanism" classes they learned that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…." But in their night-school history class, they learned that the Pilgrims who came for their own religious freedom were quick to deny it to others. Rhode Island was founded by Puritan dissenters who were exiled from Plymouth; Maryland was established as a Catholic colony; new York and Virginia both favored the Anglican Church. Religious tests for public officers and voters, and even for witnesses in court, persisted in many states into the 19th century, and most schools still started the day with Bible reading or the Lord’s Prayer.1 Like most citizens (and many law students), they had a hard time with the concept of federalism. Likewise, the 14th Amendment to the Constitution.

But they got the essential message of America: You may have to listen, but you don’t have to believe. You don’t even have to pretend to believe. You don’t even have to be respectful of others’ beliefs, although, as they might have said, what could it hurt?

When the Constitution says no "establishment of religion," it means the government will not establish a religion. There will be no official religion. No religion will be favored over any other. No citizen will be punished for her religious beliefs, or lack thereof. It’s not unknown for children — and even adults — to occasionally come to blows over the interpretation of scripture. But a schoolyard tussle doesn’t grow into a bloodthirsty mob encouraged by official clergy and backed up by the police or the military. More likely, it results in an informal civics lesson and a lecture from the school principal on the theme of religious tolerance and respect for differences.

So, you may ask, where is this going?

On September 11, the United States was attacked by people whose rage against America was fueled with Truth. Their Truth seems to be an inchoate stew of Moslem theology and ancient ethnic and tribal hatreds. It’s difficult to tell exactly what they are for, but its easy to see what they are against. They are against the Western democratic, capitalist world so full of choices, decisions, temptations and — perhaps most important — ambiguity. They see America as the engine of change, and they want to derail the train. So now we seem to be at war.

Unfortunately, in wartime our own national judgment has become cloudy. We have substituted our own simplistic Truth for the much more difficult rule of law. That Truth is that winning is everything, and legal "technicalities" just get in the way — or even comfort the enemy. Consider that Lincoln "suspended" the right of habeas corpus; that thousands of legal immigrants, including U.S. citizens, were summarily rounded up and deported during the post-World War I "red scares"; that tens of thousands of Japanese were imprisoned; that hundreds of thousands of Jews were denied life-saving asylum during World War II; that the lives of thousands of school teachers, public employees and just plain citizens were ruined in the name of anti-Communism during the McCarthy era.

We are a difficult and complex nation. We are defined by common ideas and laws, not by a common ethnicity or religion. In a very real way we are far greater than the sum of our parts. Ultimately, we are defined by our ability to make decisions, accept responsibility for our own actions, and judge people as individuals. These sound like corny platitudes, but they are also words to live by.

The preamble to our Rules of Professional Conduct states: "The continued existence of a free and democratic society depends upon recognition … that justice is based upon the rule of law grounded in respect for the dignity of the individual…. Without it individual rights become subject to unrestrained power, respect for law is destroyed and rational self-government is impossible." The words seem prescient.

So our job as lawyers is simply to protect the rights and enforce the responsibilities of Americans. In wartime there is always tension between the law and the military. In this war the tension is especially powerful because the enemy remains mostly unidentified. Government has asked the people to give it extraordinary power to intrude and snoop and arrest. After all, Government’s job is to win the war.

We should not be concerned about this tension; it’s our historic birthright as lawyers. Its been with us at least since Marbury v. Madison.2 We should not be concerned when some official says we are obstructionists. That’s called due process. We should not be concerned when some other official complains that law is complex and ambiguous and time-consuming. Bad judgments are usually made in a rush.

Our job as lawyers and officers of the court is to protect the rights that we are fighting for, to make sure there is an America to come home to. To borrow a metaphor from a previous war — our job is to make sure we don’t destroy the village in order to save it. Our job is to look Truth squarely in the face and say we are a free people united by our Constitution and the rule of law.

NOTES

1. We forget that as recently as 1963 many public schools still required reading verses from the Christian Bible or reciting The Lord’s Prayer at the start of every day. See, Engle v. Vitale, 370 U.S. 421 (1962) and Abington School District v. Schempp, 374 U.S. 203 (1963)

2. The common law looks back at least to Dr. Bonham’s Case (1610), in which Sir Edward Coke argued that parliamentary laws which contravened custom and reason were invalid.

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