America's Jekyll-and-Hyde Exceptionalism
HAROLD HONGJU KOH
SINCE SEPTEMBER 11, “American exceptionalism” has emerged as a dominant leitmotif in the daily headlines. But the very phrase raises three questions: First, precisely what we do mean by American exceptionalism? Second, how do we distinguish among the negative and overlooked positive faces of what I call “America's Jekyll-and-Hyde exceptionalism”? And third, how should we, as Americans, respond to the most negative aspects of American exceptionalism after September 11?
During the last fifteen years, I have had a special opportunity to look at American exceptionalism from both sides now: not just from the perspective of the academy and the human rights world, but from two distinct vantage points within the human rights arena: from one angle, as a human rights scholar and nongovernmental advocate; from another, as a U.S. government official.1 From these twin perspectives, I now see, the term “American exceptionalism” has been used far too loosely and without meaningful nuance. When we talk about American exceptionalism, what, precisely, do we mean?
Over the centuries, the very concept of “American exceptionalism” has sparked fierce debate in both the academic and political realms. The term,
A version of this chapter previously appeared as On American Exceptionalism in the
Stanford Law Review at 55 Stan. L. Rev. 1479 (2003). When possible and appropriate,
please cite to that version. The chapter echoes ideas expressed in Harold Hongju Koh, The
Law under Stress after September 11, Yale L. Rep. (2003), and was originally presented in
April 2002 to Michael Ignatieff's American Exceptionalism Seminar at the Carr Center for
Human Rights Policy at Harvard's Kennedy School of Government.
1 While in government, I served in the Reagan administration as a Justice Department
lawyer and in the Clinton administration as assistant secretary of state for democracy,
human rights, and labor. In those positions, I acted, in effect, as America's plaintiff's lawyer
in cases where the United States holds a human rights grievance, as well as its defense lawyer
when the United States has been charged with human rights abuse. Both before and after
my government service, I spent considerable time suing the U.S. government, with regard
to its refugee policy, foreign affairs decision making, use of force abroad, and human rights
practices. See, e.g., Harold Hongju Koh, America's Offshore Refugee Camps, 29 U. Rich.
L. Rev. 139 (1994) (Allen Chair issue) (reviewing litigation).