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The End of Exceptionalism
by George W. Liebmann
 The United States, we have been told by the President and by many defenders if American foreign policy, is an exceptional
nation. It seeks no hegemony or empire, and has no history of so doing. Its institutions are self-correcting; the publication
of scandal should be a cause of self-congratulation, for in other, unspecified, nations, such information would be repressed.
To the extent that new government practices are without precedent, this is explained by the fact that the challenges to which
they respond are without precedent, graver than any that our nation, or by inference any other, has faced in the past.
In this scheme of things, only sentimentalists will be concerned
with international treaties or conventions, or the complaints of agencies like the International Red Cross or Amnesty International.
This is so even though the Geneva Conventions received more than lip service in a number of conflicts far more sanguinary
than that we now face. The competence of a judiciary without 'expert' knowledge of foreign threats and conditions is derided,
even by some of its own members. Inconvenient statutory language limiting detentions of citizens without trial is held irrelevant,
being directed at past 'civilian' abuses and not justified in light of today's compelling 'military' needs. This is so even
though we and our allies are not threatened with invasion or occupation, as we have been in the past, by the enormous armies
of a modern state, nor by internal terror like that twice visited on the City of London and on a myriad of German industrialists
and Italian politicians by the I.R.A., the Red Army Faction, and the Baader-Meinhof gang.
The exceptionalism that is celebrated, however, rests in no small
measure on the institutional restraints created by men who entertained no illusions about human nature, including the nature
of homo americanus. Mr. Jefferson, who in his view of political behavior was one of the more optimistic among the founders,
once expressed the hope that the "books ...used for teaching children to read shall be such as will at the same time make
them acquainted with Grecian, Roman, English and American history. History... will enable them to know ambition under whatever
guise it may assume, and, knowing it, to defeat its views."
The exceptional structure of government that was created, as
Justice Brandeis memorably said, was designed "not to avoid friction, but by reason of the inevitable friction incident to
the distribution of the governmental powers... to save the people from autocracy."
These strictures have been held to have relevance even during
the exigencies of war. Mr. Justice Jackson, who thought more deeply about wartime problems than any other modern justice,
nonetheless declared in the Youngstown case involving a steel strike in the midst of the Korean emergency, that "when the
President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb... men
have discovered no technique for long preserving free government except that the Executive be under the law, and that the
law be made by parliamentary deliberations." As for the courts, Jackson observed in two other opinions that "emergency powers
are consistent with free government only when their control is lodged elsewhere than in the Executive that exercises them
." "[P]rocedural due process... must be a specialized responsibility within the competence of the judiciary on which they
do not bend before political branches of the government, as they should on matters of policy."
The late Philip Kurland, one of the more careful students of
the modern Constitution, noted that in his time, respect for federalism and the separation of powers had been swept aside
in America. In his view, all that was left of the original safeguards was the rule of law, the notion that "government not
act except according to preestablished rule, that it apply the rule according to preestablished procedure, and that the same
rule be applicable to all."
Under this analysis, the administration's failing, two years
on from September 11, is not merely found in disregard of the non-detention statute relating to citizens that was inspired
by the Japanese relocation cases, nor in failure to extend to long-term detainees, in the British manner, some procedural
protections . The failure to provide for defined administrative review of any kind for those detained far from battlefields
is a serious transgression;. defined procedures were not to be expected in the days following the shock of 9/11, but two years
on, excuses have run out. But the worst offense is found in the impugning of treaty rules and the subsequent failure to provide
any publicly declared rules of conduct at all, for the victors or the vanquished . 'Night and fog' has descended on the detention
camps, with consequences that are plain for all to see. It is not the absence of constitutional law, but the absence of even
administrative law, that has given rise to this transgression. When one inspects the administration's Supreme Court briefs
in the Hamdi and Padilla cases and in the Guantanamo case, one finds references to no published guidelines, treaties, and
regulations. Instead, we are told only of internal military reviews, conducted by unidentified and unspecified officials,
and described only in snatches of speeches and press releases.
Small wonder it is that uneducated troops in the field consider
that they are governed by no rules save those deriving from force and generated by vengeance and fear. From them, we have
learned of what Justice Frankfurter called "the generative force of unchecked disregard of the restrictions that fence in
even the most disinterested assertion of authority." As Justice Holmes said in a different context "When the ignorant are
taught to doubt, they know not what they may safely believe." There will be much caterwauling about and myriad investigations
designed to identify the particular military intelligence or military police general who will be made to sacrifice his or
her career in atonement for what has occurred. As a lawyer, I find myself not much interested in the fate of these persons.
Those who should walk the plank are the Attorney General of the United States and the General Counsel of the Department of
Defense.
George W. Liebmann is a member of the Baltimore bar, is the
author of a number of books on law and public policy, most recently Neighborhood Futures: Citizen Rights and Local Control
(Transaction Books, 2004). | |
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© 2003 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602 |
Maryland ’s School Follies by George W. Liebmann (Baltimore Examiner, April 14, 2005, pg.25:
The overriding of Gov. Ehrlich’s veto of legislation thwarting the State Board of Education’s takeover of a dozen Baltimore schools leaves both
the State and City without a legislated strategy for educational improvement.
For the last ten years, there have been
two strategies for school progress.
The State Department of Education’s strategy, like that of the ‘No Child Left Behind’ Act sponsored by the Bush administration, was a blueprint for ‘top-down’ reform. Students were to be tested, using centrally-prepared tests. Teachers and schools were to be
threatened with takeovers and other sanctions by higher levels of government where satisfactory results were not obtained.
The threat of these sanctions was supposed to produce improvement.
In Maryland, this approach was enthusiastically
implemented by Supt. Nancy Grasmick. . The introduction of any new testing program, whether for geometry or basket-weaving,
produces several years of dramatically rising test scores, celebrated by the testers. In the first year, no one knows anything
about the test, and sometimes, as with MSPAP, nothing about what is tested.. In the second year, teachers ‘teach to the test’. In the next two or three years, scores improve, then stagnate. The game then resumes, with a new
set of tests. The Superintendent has been at this for a dozen years, and on any fair reading, school performance, measured
by external criteria like SAT scores, is no better than when she took office. This does not mean that the tests lie. Baltimore
schools are as bad as the tests say they are. But the testing regime does not improve schools.
The second strategy
is that of the teachers’ unions, aided and abetted by such
political ‘leaders’
as Gov. Glendening, Senate President Miller, Speaker Busch, and Mayor O’Malley, supplemented by the efforts of two judges who are neither humble nor well informed.
This involves pouring more money into the schools, vast amounts of money. The Baltimore ‘school reform’ legislation, together with the
Thornton Plan have more than doubled per capita pending in Baltimore City, and have more or less ‘equalized’ spending
as between subdivisions. The cost of the state school construction program has risen more than tenfold since the end of the
Hughes administration. A new unfunded mandate has been enacted to improve teachers’
pensions.
What this has bought is a large increase in the number of teachers,
and hence of union members, and somewhat smaller class sizes. The teachers, however, by grace of the state’s certification rules, tend to be drawn in disproportionate measure from the weakest
graduates of the weakest colleges. Hiring more of them requires dipping deeper into a dubious barrel. The federal court’s efforts on behalf of special education have resulted in the mandated
hiring of a profusion of record-keepers who do not enter the classroom at all. The state school construction program relieves
suburban developers of infrastructure costs and, by grace of the prevailing wage law imposed on schools by the Glendening
administration, subsidizes the construction unions. The new pension improvements are retroactive, and disproportionately benefit
teachers who have retired, or are just about to. Their effect on the recruitment of new teachers is minimal; since the plans
are defined benefit plans, younger teachers see no growing pot of savings and are little influenced by promises of ‘pie in the sky when you [are about to] die’.
The two sets of policies in combination have toxic effects.
The state mandates deprive the best teachers of creativity and discretion, rendering them subject to the latest vogue
in testing or curriculum design. In the elementary schools, reading and math teachers are today’s ‘flavor of the month’; the others are marginalized. MSPAP stressed techniques; other tests
stress information. Phonics and rote memory reading programs come and go, as do the ‘old’ and the ‘new’ math. Teachers are treated as marionettes
on a string, not responsible professionals. They rapidly learn to play ‘the old Army game’ and burn
out quickly.
The union-Democratic agenda for its part sops up every dollar that might be employed for a useful purpose,
like extra pay for science and math teachers. The requirement of nearly a year of education courses for teachers, two years
for principals, and three years for superintendents excludes from the teaching force liberal arts graduates, career-changing
professionals, returning housewives, retiring military officers and civil servants, college teachers with a concern for the
high schools, and scientists who decide that research is not their vocation. Seniority systems with ‘bumping rights’ and automatic annual pay increments insure that the most experienced and highly paid teachers wind up in the least
troublesome schools, and that under-rewarded younger teachers who are acquiring children and mortgages leave the teaching
force in droves. Huge county-wide systems proliferate administrators and guarantee that roofs are not promptly repaired, nor
textbooks promptly delivered, and that parent and civic volunteers are repelled as public menaces and threats to the union
structure.
Yet the charade goes on. The Pattersons and Grasmicks have buildings named after them, while even once-distinguished
schools like City, Poly, and Western are denied their own governing boards, lack the salary supplements to hire computer science
teachers, of whom they have none, and are subjected to a relentless levelling-down process.
However, though few Marylanders
know it, there is a third path for school improvement. It was mapped out by a recent state commission, following foreign examples.
It is a program for bottom-up reform. It urges differential pay for scarce disciplines and unusual skills; an end or drastic
reduction in seniority-based pay and assignment structures; an opening of schools and school leadership to liberal arts graduates,
private-sector managers, retirees, and others with relevant experience; adequate means to purge bad teachers; greater parent
and community involvement in building-level governance; defined-contribution portable pensions; and a really adequate charter-school
law, one looking toward a system like that of several foreign countries where all schools are governed as charter schools.
Its chairman was not Ehrlich nor O’Malley,
nor Copeland or Grasmick, still less Miller or Busch. The public needs to hear about the recommendations of the Steele Commission.
Let us hope its leader finds his voice.
George W. Liebmann, a Baltimore lawyer, is the volunteer executive
director of the Calvert Instuite for Policy Research, Inc.
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