In our schools of law, we should teach patriotism. What I am saying isn't simply that we should teach about patriotism. We should teach it. For patriotism, properly understood, is essential to the vitality of our democratic politics. It is through democratic politics that our law is supposed, ultimately, to be made--and legitimated. Thus, patriotism must be essential to the spirit, if not the letter, of law in America. Hence, it must be basic to "thinking like a lawyer."
When we're considering possible legal responses to terrorism--which has already elicited so many expressions and so much discussion of American patriotism--my proposal for a fundamental enrichment of the content of legal education would surely seem to be in order.
But let me back up. There is, of course, no chance that law schools will undertake to teach patriotism anytime soon. This isn't just because the proposal is at odds with the current ambition of most of them to reposition themselves as "world" law schools, hoping to "internationalize" everything in sight. Nor is it just due to the spell that rationalistic universal theories (economic, philosophical, you name it) have cast over legal education for decades now. It is also because an awful lot of legal educators would simply be embarrassed to teach patriotism. To them, patriotism may seem a "point of view" too controversial to be embraced by academia. (To be sure, more politically correct points of view may not seem at all "controversial" to them. But that is another story.) Worse, American patriotism may strike some of them as more than a mere point of view--a sort of "religion"--and thus not only inappropriate but dangerous. Even worse, they may simply feel it is "beneath" them. If you think this suggestion is unfair, consider that things could be still worse: In the midst of World War II, writing of the general tendency among intellectuals to "snigger" at patriotism, George Orwell famously claimed that "almost any English intellectual would feel more ashamed of standing to attention during `God Save the King' than of stealing from a poor box." (1)
For whatever reason, any idea of patriotism being taught in law schools is a dead horse. Instead of pretending to whack it into life, I want to do something more practical. What I mean to do is elaborate on the initial premise behind my proposal: that is, my assertion that patriotism, properly understood, is essential to the vitality of democratic politics. To be sure, patriotism, no less than democracy, has been understood in many different ways--ways that are often mixed and mushed together, their variety obscured. My aim isn't to disentangle all these differences, though I hope to highlight some. Nor is it to define one "true" understanding of anything. Rather it is to paint, with a few strokes, a picture of a deep strain in American patriotism that is crucial to a deep-rooted imagination of the vitality of American democracy (and so of American law).
With our homeland under violent foreign attack for the first time in almost two centuries, this project is, after all, more important than any improvement of legal education. The effort to defend the nation, now only beginning, is bound to be controversial. Sometimes, the issue will be: What is the right thing to do? Sometimes, the same issue will be more focused: What are the pros and cons, taking public opinion into account, of doing this or doing that? In any event, assumptions about patriotism-as a source of value and as a popular sentiment--are going to play a part in the controversy to come. What could be more worthwhile than examining assumptions ahead of time?
I. A POLITICS
How, as a general matter, should we imagine the relation between American patriotism and American democratic politics? Can patriotism be understood to be a democratic politics? More specifically, can it be understood as an invitation or an inspiration to popular political activity, promoting engagement by the mass of ordinary people in self-government? …