By Mark Tushnet

The September 11 attacks on the World Trade Center and the Pentagon, and the war in Iraq, have brought to the fore once again questions about how our cultural institutions, including legal education, inculcate patriotism - and even raise the question of whether they do, or should. I want to use this opportunity to explore some of those questions, and to suggest from my perspective as a scholar of constitutional law that examining legal education's role in educating for patriotism is a promising area for scholarship. What follows are some quite tentative reflections on patriotism and legal education, and I welcome responses, which can be sent to me at Tushnet@law.georgetown.edu. (I suspect that those responses, and my reflections on them, will form the basis for my next column in this Newsletter.)

A brief historical perspective may serve as a useful introduction.¹ To oversimplify: In the first century of organized legal education, law teachers thought it important to ensure that their students, the lawyers of the future, were well-prepared to serve as leaders of their communities. They therefore devoted a significant part of their pedagogic efforts to inculcating the virtues they associated with civic republicanism: attention to public values, concern for honor and proper conduct, and more. These efforts were, one might say, unreflectively patriotic. The civic virtues could be and should be practiced by men (the gender limitation was not insignificant) everywhere, and U.S. legal educators thought that the civic virtues were important for lawyers everywhere, because of the law's essential characteristics. At the same time, though, U.S. legal educators simply assumed that there was something particularly important in having American lawyers who practiced the civic virtues.

The picture began to change in the latter years of the nineteenth century. The idea that legal education was a venue for inculcating the civic virtues came under pressure from two directions. First, the role of lawyers as advisers to private clients, particularly the organizers of large-scale economic enterprises, became increasingly important. An important strand in legal pedagogy - though not the only one - suggested to law students that, as such advisers, they ought to take their clients' interests as the clients stated them, without tempering them with values derived from civic republicanism. Second, legal education became a more academic enterprise. Legal educators oriented toward the universities of which they were members began to believe that knowledge of the civic virtues was relatively unimportant in developing an appropriately scientific understanding of the positive law, and - less so - in developing prescriptions for the direction that the law should move.

Attention to the civic virtues never disappeared from legal education, but it played a relatively small role in the self-understanding of legal educators in the later years of the twentieth century. True, we all believed that our students ought to be comfortable as civic leaders, and we regularly gave talks to the effect that our students should take their obligation to serve the community seriously once they entered practice. Only in clinical education, and not always there, was attention to service organically integrated into legal pedagogy. Otherwise, the civic virtues were pretty much an "add on" to our discussions of legal technique - the modern vehicle that carried our commitment to educating our students to serve clients - and to our explorations of law in context, informed by a range of theoretical perspectives.

Of course we all had commitments to practicing the civic virtues, understood of course to be quite diverse in content (the civic virtues were available to radical conservatives and radical leftists, for example, just as much as they were to more conventional conservatives and liberals). Indeed, our choice to become legal educators was, for many of us, predicated on the view that being an educator was perhaps the best way that people with our array of talents could practice those virtues. It's just that many of us hadn't quite figured out how to meld our personal commitments to the civic virtues with what we did in the classroom or in our scholarship.

One result was a discourse, in our public statements and in our scholarship, in which some important aspects of the civic virtues were deformed. I will describe four such deformations in a moment, but it's important at the outset to stress that these are all deformations of views and values that, undeformed, are important components of the civic virtues properly understood. I organize the four deformations in two groups, which I associate, both for expository purposes and because I think there's something to the association, with the private-client orientation of modern legal education and with its academic orientation.

I label the first two deformations pablum and jingoism. They are the stuff of Law Day speeches, which are, as Robert Gordon has suggested, the location for the expression of the residual civic republican commitments of a bar, and legal academy, focused on serving private clients.

The first of these takes off from the undisputable but sometimes disputed proposition that dissent and disagreement with government policy are protected by the Constitution. It then moves to the more problematic assertion that dissent and disagreement with government policy are manifestations of patriotism because they show the dissenters' acceptance of the Constitution that protects their actions. Sometimes the pablum response degenerates into the kind of sentimentality Justice William Brennan expressed in his opinion for the Court in the first flag-burning case: "We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. . . . We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial."

The reason that I call this the pablum deformation is that it fails to acknowledge dissent's complexities. True, dissent sometimes, perhaps often, arises out of a patriotic commitment to the nation's deepest values, with the dissenters claiming that the policy that they object to, and not their dissent, is the true betrayal of those values. But, sometimes dissent simply takes advantage of the opportunities provided by our constitutional system, and the dissenters have no commitment to the nation. And, probably more important, sometimes dissenters believe that they are acting in the service of the nation's deepest values, but they are wrong: think here of the worst elements of the contemporary militia movement.² What the pablum deformation overlooks are the more complex dimensions of dissent, including the problem of determining when an asserted commitment to the nation's deepest values is erroneous even if sincerely asserted.

The jingoist deformation takes as its motto a truncated version of Stephen Decatur's toast, often rendered as, "My country right or wrong." So, for example, the jingoist deformation recommends the adoption of U.S. constitutional forms around the world, jot-and-tittle. The jingoist deformation tends to deny that the country could be wrong, and sees criticism of the nation's course as unpatriotic.

What's right in Decatur's toast is that patriotism does require the kind of commitment Decatur expressed. What's wrong is that it overlooks the rest of Decatur's toast, which in full was, "Our country! In her intercourse with foreign nations, may she always be in the right; but our country, right or wrong." Decades later Senator Carl Schurz (and, not irrelevantly in today's world, an immigrant to the United States) restated the point: "Our country right or wrong. When right, to be kept right; when wrong, to be put right."

For Decatur and Schurz, then, patriotism combined a deep commitment to the nation's course, whatever it was, with an equally deep commitment to taking action to ensure that the nation's course was true and that when the nation drifted or was directed off course, the patriot acted to return it to the true course. The pablum deformation may overstate the patriotic dimension of dissent as such, but what the jingoist deformation overlooks is the patriotic necessity of dissent.

At the same time, of course, dissent is not necessary, although it may certainly be permitted by our constitutional values, when the nation is on the true course. The difficulty with the jingoist deformation is that it fails to recognize that in a fallen world our country will always be wrong in some things. Patriotism is more difficult than the jingoist deformation acknowledges.

The third and fourth deformations are universalism and partiality. Both are expressed in high academic writing, universalism in the literature on liberalism and partiality in the literature on post-modernist understandings of law.

Universalism, which is characteristic of, for example, the contemporary international human rights movement, focuses on the fact that people have rights, which governments should acknowledge and protect, merely because they are people, and not because they are citizens of any particular nation. It is the substrate of contemporary liberal political theory in essentially all its versions, and therefore is the substrate of a great deal of contemporary constitutional theory.

I confess to finding universalism in its most rigorous versions - for me, associated with the Anabaptist tradition articulated by the late theologian John Howard Yoder, and, from a different tradition, by Stanley Hauerwas - extremely attractive. Those versions are completely indifferent to the division of the physical world into nations, and so have no room at all for patriotism. (Hauerwas wrote an important essay with the title, "Against a Christian America," whose thrust was against attaching the adjective to the noun, and against the noun itself.)

Such a rigorous universalism is unsustainable for most of us, and perhaps - at least for those with religious commitments even a tiny bit shallower than the Anabaptists' - rightly so. There's something troubling about a position that requires us to ignore (except on prudential grounds) the interests of those closer to us in favor of the more urgent needs of those with whom we share "only" a common humanity. Universalism rightly urges us to be attentive to the interests and rights of those against whom our country acts, counting an injury to a soldier in an opposing army as no less a harm than an injury to a soldier in our army. The universalist deformation, though, has no room for a reflective patriotism that can see one harm justified while the other is not.

(Nothing in my concern about universalism, though, speaks to the question of when the harm is justified and when it is not. The fact that answering that question is often difficult is what the pablum and jingoist deformations overlook.)

Precious Ramotswe, the central figure in Alexander McCall Smith's mystery series about the No. 1 Ladies Detective Agency, puts the point eloquently. She is, she says, "not afraid to be called an African patriot. . . . I love all the people whom God made, but I especially know how to love the people who live in this place." The subtlety here - distinguishing between the act of loving all people and the knowledge of how to love people - deserves attention.

There is, I think, a conservative version of the universalist deformation as well, although it may not appear so initially. Originalism in constitutional interpretation would seem to be tied closely to the U.S. national experience. Yet, most defenses of originalism assert that it is the only way coherently to interpret law generally. The defense of originalism, that is, is universalist.

The universalist deformation uses our common humanity as the reason for moving upward from the nation to the world as a whole. The partiality deformation, in contrast, moves downward from the nation to our identities as beings constituted by our more local environments, our experiences as men and women of specific races in specific contexts. As with all the deformations, the partiality deformation starts from a point worth emphasizing and building into our understanding of ourselves and our political world. We are all, as the phrase goes, socially constituted: There is no view from nowhere; we see the world from where we are. And, importantly, where we are is more local than national. We are women and men, African Americans, Asian Americans, whites, and some combinations of those, gays and straights. Those aspects of our identities generate (not a terribly good word in this context, but the best I can come up with) the values we hold, the ways we understand the world, and so the ways in which we evaluate our conduct and that of others.

The post-modern emphasis on how values are socially constructed has been an important corrective to liberal universalism. Its deformation can be seen in the fact that much of the literature in this tradition fails to grapple with the fact that one of our socially constructed identities is as Americans. I see an aspect of this in my classes when I teach federalism. For pedagogic purposes I usually suggest to my students that they really don't identify in any important way with "their" states: That I was born in New Jersey, taught in Wisconsin, and now teach in Washington seems to have little to do with anything about which federalism is concerned (or so I say to my students) - and similarly, I suggest, for them as well. (Incidentally, I always concede that this claim may not be true about Texans.)

My experience is that, among the things that constitute my students' identities, their states of origin or residence play a relatively small role. The partiality deformation takes that observation and mistakenly moves it up one level. That we are, among other things, Americans is not deeply theorized (at least in an approving way) in the legal literature influenced by post-modernism.

As with the universalist deformation, I have a fair amount of sympathy for the partiality deformation. Introducing post-modernism to the legal academy was not easy, and for pedagogic, expository, and (therefore) strategic purposes it probably made sense to use gender and race, not patriotism, as the lenses to offer the uninitiated so that they could enhance their vision of the world as it is. Further, patriotism as an expression of particular national identities has a rather bad track record in world history. Still, post-modern perspectives have gained a foothold in the legal academy, it might be worth devoting some effort to using them for thinking about patriotism.

I have briefly touched on some ways in which the four deformations I've identified work their way into my classroom. I want to conclude by suggesting one promising approach for giving sustained attention to patriotism in legal education. It is the idea of constitutional patriotism introduced by Jürgen Habermas. For Habermas, constitutional patriots orient their political action with reference to constitutions that have two central features: The constitutions plainly fall within a class of recognizably liberal constitutions, and they are the constitutions of and for a historically specific people and nation. The first of these features picks up on the attractive components of liberal universalism while the second limits the move upwards to a common humanity. The second feature picks up on the attractive features of post-modernism while the first limits the move downwards to more local identities.

My own work uses ideas akin to constitutional patriotism to develop a perspective on constitutional law from the left. It seems to me clear, though, that those ideas are available to develop a perspective - call it Burkean rather than Habermasian - from the right. From whichever side of the political spectrum one proceeds, though, I think there's valuable scholarly and pedagogic work to be done to address the four deformations I've identified and to develop better ways of building patriotism into the law school curriculum.

²For an astute analysis, see Susan Koniak, When Law Risks Madness, 8 Cardozo Stud. In L. & Literature 65 (1996).
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* This article appeared in the April 2003 AALS Newsletter.