A Historian Remembers Her Father--And What United Them
The child of immigrants, he passionately loved this country, its Constitution and its rule of law. When I was a little girl, he took me to the U.S. Supreme Court and there, in that awesome chamber, he told me that the most important question a judge should ask is: What's fair?
I never forgot that simple question.
Later, in the 1960s, he wondered where he'd gone wrong in raising me. By the time he voted for Barry Goldwater in 1964, I had already worked in the civil rights movement and marched against the war in Vietnam.
What did he expect? He had taught me to worship the ideals he cherished. So I was outraged by injustice and by the deception practiced by political leaders. Though we vehemently disagreed about the Vietnam War, I thought he'd done a fine job teaching me to respect our democratic traditions.
His own disillusionment came a few years later. He had voted for Richard Nixon and then Watergate shattered his political faith. After that, he never voted again.
That's when our political views grew closer. He'd call from across the country to express his outrage at the Iran-Contra scandal. He'd write and tell me that the United States had no right to ignore the World Court's decisions. "No one is above the law, not even this this country."
Now, 10 years after his death, I can still imagine what he'd be thinking and saying today. He'd sharply criticize the U.S. Supreme Court for selecting a president; he'd excoriate President Bush for rejecting the International Criminal Court.
He would be especially outraged that prisoners are languishing in a lawless netherworld at a naval base at Guantanamo Bay in Cuba. "No right to a lawyer? No right to hear charges? And now they're going to hold secret military tribunals? This is not the country I loved."
He would definitely attack the U.S. Patriot Act. "Libraries have to tell the government what you read? Wiretaps on citizens without judicial review? And now this Ashcroft wants to extend his powers? This is why I hated communism. Doesn't this man know about the Bill of Rights?"
"And putting John Poindexter in charge of this Pentagon spying machine? My God! The man's criminal conviction was only overturned on a technicality!
"These people aren't real conservatives -- they don't give a damn about the law or democracy."
As was his custom, he'd get pretty worked up. "Giving government funds to religious institutions? What ever happened to the separation of church and state? Why are people letting this government get away with this?"
I would remind him of the Sept. 11 attacks, the al Qaeda terrorist network, and how the government has successfully manipulated and deepened the public's fears.
But I know how he'd respond: "Even Roosevelt -- and you know how much I disliked him -- tried to get people to overcome their fears. What kind of a president is this?"
"The Cold War ends, we defeat totalitarianism, and this is what we get? What about our civil liberties, our civil rights? What's the matter with Congress? Why aren't they doing anything to stop this? You've got a lot to do. . . ."
And his words, not for the last time, would remind me where I got this strange notion that all of us -- whatever our political loyalties -- are responsible for the fate of our democracy.
This article was first published by the San Francisco Chronicle and is reprinted with permission of the author.
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Richard Henry Morgan - 6/16/2003
Law is about many things, including legitimacy, and fairness. Law aims for justice, and justice may have something to do with fairness, but fairness is not the special province of the jurist. It is hoped that the law encompasses fairness, but that should be distinguished from investing each interpretation of the law with fairness as the premier hermeneutic principle.
Sure, the rot did not set in during the '50's -- it's just that Yale-style legal realism bore its greatest fruit then. Not for nothing that Warren, the enthusiastic supporter of rounding up Japanese-Americans, should be the leader of a court that looked outside the law for its interpretation. As a former teacher, I've seen the results of a creative approach to interpretation, where fairness considerations have led to fictitious property rights to education, etc., with the resultant destruction of discipline and educational opportunity for other students. I'm thinking of a whole string of decisions, from Tinker v. Des Moines, to Goss v. Lopez, that demonstrate that the justices of the USSC have no great appreciation of the real-word impact of their creative decisions, and are therefore particularly prone to falling prey to the law of unintended consequences. They would do well to stick to the law, which is their special province, but too many rather see themselves as philosopher-kings unfairly forced to hide their virtue beneath a judge's robes. Brennan was particularly prone to this. There are cogent moral objections to capital punishment, but Brennan thought it his role to help the law along to a conclusion towards he thought society was heading anyway, under the guise of constitutional interpretation. That's what I oppose -- the substitution of personal views of fairness for established law and established canons of construction.
William H. Leckie, Jr. - 6/16/2003
"The law is about legitimacy" is tautological, Mr. Morgan.
On the other hand, we do have a legitimate issue for debate here!
Do we take the positions put so starkly long ago--By Thrasymachus in Republic: Baws were created by the rich and powerful to control others? And Callicles in Gorgias: That laws were invented by the demos to curb the men whose natural right it is to rule?
What you deride as navel gazing or lotus positions and incense are about whether there's any other ground for legitimacy, though most I knew who actually engaged in those things couldn't have cared a whit. It's tommyrot that rot set in in the 50s or 60s; it's been there since the 5th century BCE at least and we are still trying to figure it out.
Richard Henry Morgan - 6/14/2003
Actually, Ralph, I think the law is about legitimacy. The law is what has been passed by a legitimate procedure, not what is divined by sitting, lotus-position style, taking in the incense, and contemplating the question "What's fair?". That is a question that should precede the making of law, not direct its interpretation.
NYGuy - 6/14/2003
The Following is a Column by Ruth Rosen, a liberal since youth.
Interesting. Sorry her father got to hate this country. Wonder where that came from.
Of friendship and war RUTH ROSEN Friday, April 4, 2003
ONCE A YEAR, like migratory birds, the five of us arrive at Point Reyes National Seashore for a three-day reunion. We take over a small inn, leave behind husbands, children and challenging careers. We take long hikes, eat leisurely meals and talk interminably about our families and work.
We are all educators of one sort or another and sadness saturates this year's reunion. We don't speak of the war very much, but anguish dwells inside each of us.
"There is the quiet recognition that this ultraconservative administration -- by bankrupting our national wealth through war and tax cuts - - has turned our dreams into a nightmare."
Another example of liberal honesty. Happy Father's day everyone.
Ralph E. Luker - 6/14/2003
Richard, Maybe that _is_ your problem: that you do not believe that the law is about equity.
j horse - 6/14/2003
Ruth, your fine article made me think of my own father. Papa hated dishonesty and phonies, so I have a good idea of how he would have felt about alot of the current issues. He served in WWI, survived the Great Depression, and was in the merchant marines during WWII. He wasn't afraid to speak his mind, which was something that used to embarass me when I was younger but is something that I've come to appreciate today.
Thanks for the memories.
AnotherNYGuy - 6/13/2003
How can Rosen use her dead father to further her own political agenda? It seems almost immoral. How could she possibly "know" how her father would have responded to current political events? I also find it hard to believe that someone, like Rosen's father, would completely change his philosophy based on Nixon and Watergate. I would think one would disassociate oneself from the person and the event, rather than from the whole political party.
Rosen might want to believe that her father would approve of her her beliefs, but that doesn't make it true. It just seems to be a way for Rosen to justify what she thinks.
Richard Henry Morgan - 6/13/2003
"he told me that the most important question a judge should ask is: What's fair?"
You and your father shared a vision -- that the law is about discovering what is fair. I can't think of a better summation of the rot that set in during the '50's, reached its zenith in the '60's, and continues to this day.
NYGuy - 6/13/2003
"I just get amazed at the number of ways people start with a simple statement and turn it into a rant against GW. Capenter is an expert at this."
We are at war and things change. Civil libeties were suspended during WWI when people could not buy gas or meat at will. They had to cover their windows at night, or shut their lights off so submerines off shore could not use cities as a guide for navagation. Some citizens were prevented from continuing their schooling and put into the Army or Navy with all its restrictions. My grandmother had to register since she was not born in this country. The list goes on.
I agree with you, "The sooner we defeat Al Qaida and their ilk, the sooner we can halt the erosion of civil liberty. I pray we can restore what was lost that terrible day." We were not Empire builders in WW2 and we are not Empire builders today, even though in both cases we fought on foreign lands.
It is just tiresome to hear a bunch of cry babies from the "me generation" who always got their way and have no concept of what it takes to proctect ourselves.
Thank God we have men like GM the father who put his life on the line for this country during a period when he lost most of his civil liberties. Thank God he taught his son how to protect this nation.
James Thornton - 6/13/2003
A long time from now, in a galaxy so close, history will mark September 11, 2001 as the date that began the transformation of the American Republic into an American Empire.
The sooner we defeat Al Qaida and their ilk, the sooner we can halt the erosion of civil liberty. I pray we can restore what was lost that terrible day.
NYGuy - 6/13/2003
I just get amazed at the number of ways people start with a simple statement and turn it into a rant against GW. Capenter is an expert at this.
As you said you helped shaped the polotics of this country and probably supported Clinton and now you don't like what you see. Fair enough. Maybe you should examine your father's earlier attitute about America.
I personally don't think you do much to honor to your father with this article. I would have had more respect for you if you had titled it, "J'Accuse".
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