Extremism in defense of anything is un-American. This New Year, of all times, it’s important to remember that

by Randolph J. May
Legal Times, January 7, 2002

I’ve always thought that a columnist may be granted dispensation at the turn of the year to be a bit more reflective and even personal. After all, it’s traditional even in “normal” times to put the past year in some sort of perspective. But post-Sept. 11, the times are not normal. So it seems especially appropriate to muse about who we are at this time in this place called America.

More than anything else, we are a nation of immigrants, drawn to America by the promise of personal freedom and economic opportunity proclaimed unabashedly in our founding charters. It is true that when my grandfather first touched American soil in 1898, a 15-year-old crossing the Atlantic without his parents, he had never read the Declaration of Independence. But he knew in his bones that he had come to a land in which those who had come before him held it to be “self-evident” that all men are created equal and entitled to “Life, Liberty, and the Pursuit of Happiness.”

And without having read the Preamble to the Constitution, he knew in his bones that he had come to a land in which earlier immigrants had ordained a government in order to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”

I know he knew these things in his bones because he made a point of telling me so, in the Yiddish accent that never left him. This was long after he had departed the Lower East Side and the sweatshops of New York for the opportunity to peddle dry goods all over eastern North Carolina, and after he eventually saved up enough money to open May’s Five and Ten Cent Store.

My grandfather, of course, was not unique. He was but one in an unending stream of immigrants that continues to this very day. There are exceptions, to be sure, but most understand that they too are coming to a special place that offers freedom and opportunity, even if they don’t yet know the ins and outs of the Constitution or American politics.

A SPECIAL PLACE

You don’t have to argue that America has always lived up to the ideals proclaimed by the Founders—it hasn’t—to believe that America is a special place. But now, in the midst of another foreign war and the ever-present threat of more terrorist attacks at home, we should reflect on how we keep it so.

We lawyers, especially, should always appreciate the need to preserve our civil liberties as we endeavor to protect our national security. Obviously, if we lose either, we are not the same America. That’s why the Preamble acknowledges that it is our government’s foremost role to protect both.

It’s appropriate—indeed, necessary—that we pay careful attention to whether anti-terrorist measures, such as the conduct of military tribunals, pretrial detention, searches and seizures without judicial approval, and the like, comport with our constitutional guarantees. Regular readers of this column will know that I put great stock in the Constitution’s separation of powers, along with the Bill of Rights, as the principal safeguards for preserving our liberties. The diffusion of powers among the three branches, and the unceasing self-protective interbranch skirmishing, prevent the concentration of power in a way that history proves almost always turns abusive.

So I’m very comfortable with meaningful congressional oversight of the administration’s homeland security measures. For example, even though there almost certainly will be instances when nonpublic military tribunals should be used to try noncitizen terrorists, possibly even here at home, Congress performs a useful function when it closely questions the administration concerning the justification for and circumstances of the tribunals’ use. Similarly, although few of the administration’s security measures have been challenged in court, inevitably some will be, and judicial oversight will be welcome.

But something more than constitutional structure has been indispensable to keeping America the special place it is today (although this something more is certainly nourished by a structure that requires compromise and accommodation to function effectively). America is home to a political culture that shuns extremism at either end of the political spectrum.

In his 1984 book, When Words Lose Their Meaning, University of Michigan Law School professor James B. White wrote, “Behind all the theoretical talk of government and legitimacy . . . behind even the forms of government itself, there is a culture, a living organization of mankind, upon which all the talk of system and mechanism depends, both for its intelligibility and for its effects.” In other words, a worthy constitutional structure cannot be sustained apart from a healthy political culture.

To my mind, a major reason why the political center has always held in America is that so many of those who have emigrated here had experienced firsthand the ravages of extremist regimes of the left and right. Sure, the pendulum here swings back and forth between center-right and center-left. But even during times of war or domestic unrest, Americans typically have eschewed rhetoric that appeals to political extremes.

Consider, for example, the huge stir caused by Barry Goldwater in 1964 when he uttered the most famous lines in his speech accepting the presidential nomination: “Extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.”

In one sense, the sentiment expressed by those lines is not only perfectly acceptable but also perfectly noble. In another sense, especially in the summer of 1964 after President John F. Kennedy’s assassination and in the midst of the civil rights struggle, Americans simply were made uncomfortable by praise of “extremism” in any cause, particularly juxtaposed against “moderation.” Wouldn’t “vigilance in the defense of liberty” have sufficed?

Not only did the liberal Rockefeller Republicans, who had political axes to grind anyway, walk out of the Cow Palace that night. My father, the immigrant peddler’s son, walked out of the den in which we watched the televised speech. He had been with a unit that fought its way through France into Nazi Germany and liberated the death camp at Dachau. He witnessed up close, like many of his generation, the horrible fruits nurtured by extremist rhetoric. When I asked him that summer night what bothered him so, he responded simply: After what I saw in Europe, I don’t like any politician invoking extremism.

SIMPLY UNACCEPTABLE

I use the Goldwater lines as but one example of the type of civic discourse that we can just as well do without. More recently, the overheated language used by the left in transforming Robert Bork’s last name into a verb often went beyond what ought to be acceptable political debate. For example, writing in The New Republic at the time, Renata Adler labeled Bork’s views “ideologically extreme to a degree that is unusual even on the outermost fringes of our public life.” This of a former solicitor general and federal appellate judge, twice confirmed by the Senate.

And, in our present circumstances, there are again those who embrace extreme language—predominantly from the left. What are we to make of utterances like that of Rep. Maxine Waters, who accuses the Bush administration of “literally dismantling justice and the justice system as we know it”? Or Rep. Jerrold Nadler proclaiming that the administration’s security proposals “belong in a Soviet state or a dictatorship, not in a free society”?

Perhaps best-selling novelists shouldn’t be held to the same standards as our elected leaders. But what to make of Barbara Kingsolver, who after Sept. 11 said that the U.S. flag stands for “intimidation, censorship, violence, bigotry, sexism, and homophobia”? I say make of it this: that we remind ourselves how fortunate we are to live in a land in which the flag actually stands for the idea that people are free to utter such extreme nonsense, even when most Americans take deep offense.

As we begin this New Year, let us also remind ourselves that, for America to remain a special place, more is required than our constitutional structure. We must maintain a culture that keeps us tethered not too far from the political center. And this is easier to do when our political discourse, from both the right and the left, reflects the moderation that binds most of us together.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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