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Readings: David Cole on Civil Society and Individual Rights After 9/11

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Saturday, November 17, 2012 at 7:22 PM

Georgetown law professor David Cole has a new article up on SSRN, “Where Liberty Lies: Civil Society and Individual Rights after 9/11.”  It offers something of a retrospective on the role of civil society organizations in defending a vision of individual rights under the Constitution in the years following 9/11 – these organizations include, Cole says, the American Civil Liberties Union, the Center for Constitutional Rights, the American Bar Association, Human Rights Watch, Human Rights First, the Bill of Rights Defense Committee, the Constitution Project, the Muslim Public Affairs Council, and the Council on American Islamic Relations.  But the larger intellectual and moral agenda of the article is to say that the role of these civil society organizations has been under-appreciated as a conceptual Constitutional matter and that there should be a greater recognition of a norm-enforcement role on the part of these organizations with respect to individual liberties in the Constitution, beyond the formally recognized mechanisms of the separation of powers within government as checks and balances.  Scholars have long focused, Cole says, on the role

constitutions and the formal structures of government that they create play in reinforcing commitments to long-term principles when ordinary political forces are inclined to seek shortcuts. The United States’ experience during the decade following September 11 suggests that this focus is incomplete; we should pay at least as much attention to the work civil society groups do to “enforce” constitutional rights. Much like a constitution itself, such groups stand for, and can shore up, commitments to principle when those commitments are most tested.

The result of this for a properly complete understanding of Constitutional mechanisms is that a more

robust understanding of how constitutions work must take into account what I call “civil society constitutionalism,” in which nongovernmental organizations advocate in multiple ways for adherence to the rule of law, in court and out, and in so doing, do much of the “work” of constitutionalism. That role is particularly important in periods of crisis, when neither the formal separation of powers nor the public at large are likely to perform much of a checking function.

It’s a very interesting article, not least for me because it contains many parallels to theories of civil society flowering in the scholarly literature since, more or less, 1990 and the fall of the Wall – all the thorny questions raised about the social and political as well as formally juridical elements of a liberal democratic society and state (this short 1990s “Think Again” piece in Foreign Policy by Thomas Carothers remains one of the best quick takes).   It also raises important parallel questions about the literature of “global civil society” – international NGOs in relation to the international system.  I have a number of disagreements with Cole’s argument, starting with a worry that Cole’s description of civil society wants to have its cake and eat it, too.  Meaning, on the one hand, it partly offers a seemingly neutral theory of civil society and its role in Constitutional norm-enforcement in times of emergency.  On the other hand, it also offers a remarkably heroic portrait of a particular and favored list of organizations, as well as a normative embrace of what those particular organizations were doing as substantively right and good.

But a neutral, general, sociological theory of civil society and the juridical state presumably would have to apply not just to organizations one happens to like, but to civil society organizations in general.  These would presumably include a lot that Cole would not like.   Likewise, a neutral and general theory of civil society and the state doesn’t get to assume a certain set of substantive legal or moral views as being incontestably the “right” ones.  A neutral theory would have to accept that these views were morally, politically, and legally contested – as indeed they were – and that many people were on the other sides of these questions, inside and outside government.   (Jack Goldsmith addresses important parts of this in his book, too – what the pushing back and forth means for the long-run institutionalization of legal policy.)

One can certainly offer an account of civil society that starts from the position that the legal views of this particular list of civil society organizations were normatively correct and that, in many matters, they succeeded in persuading the public and the courts of that, and that’s a good thing.  But then again, perhaps those views, even if they persuaded some courts on some things, were not substantively the right ones, and actually put society at risk or elevated certain individual liberty concerns above their correct place in relation to security. (One can fill in a variety of contrary arguments, of course.)  Either way, however, this won’t constitute a general sociology of civil society.  One will not get to a neutral, generalized conclusion about the nature of civil society itself (including its relation to the state and its constitution) starting from the assumption that civil society does (or backs) this particular normatively fixed set of things; that can’t provide a descriptive conclusion about civil society in general.

The usual definition of civil society, after all, is not “non-governmental organizations I like” – but instead a general theory of associations of individuals, located in a social and political “space” outside the state and the market.  They might have any number of different aims – some of which one might like and others one might well not. (This is to use the meaning of civil society predominating at least since Adam Michnik and the Eastern European samizdat writers of the 1970s and 80s.)

It’s also worth bearing in mind, too (even leaving behind the proposition that civil society “comes with” a fixed set of substantive views), that there are good reasons to be wary of a society and politics with too much civil society that might, for example, undermine parliamentary democratic government, especially when it is institutionally weak.  Sheri Berman’s widely-commented (scandalous, even, in my world of NGOs and civil society at the time) 1997 World Politics article about the collapse of Weimar Germany, for example, argued that Weimar’s overly-robust civil society helped scuttle its weak political institutions.  Although there’s nothing necessarily and generally true about this, it does seem a serious possibility in some political situations; civil society is not an unalloyed good.  It is not always the case that a weak state benefits from strong civil society, or that strong civil society automatically reinforces the state; sometimes it undermines it (as Frank Fukuyama has noted in several of his books in the last ten years on political and economic development).

There are also difficulties, in my view, with efforts in legal theory, either US domestic or “global civil society,” to elevate civil society to a quasi-privileged place in law-making, interpretation, or enforcement.  (David Rieff and I make the critique with regard to global civil society in this article, which might better be titled, “So Who Elected the NGOs?”)  Advocacy is advocacy, and the glory of civil society is that it is free to focus on any issue it feels like, take any view it wants, ignore anything it doesn’t want to discuss, and press legislators to do this or that.  So long as we have a robust First Amendment and robust republican institutions of government, that will work fine – but also only so long as voter-citizens remain the ultimate touchstone for legislative representation, and civil society stands alongside, seeking to persuade but not actually represent in a legal sense.  Cole edges – doesn’t go there, but edges – toward an embrace of a role for civil society that might be thought of as intermediating between citizens and government in something approaching a formal and categorical sense, rather than merely operating in parallel, striving to influence both legislators and voters by their arguments.

The latter is the power of argument and persuasion. The former, by contrast, as a theory of state and society based around intermediation by groups between citizens and the state, is a form of corporatism.  Cole has indicated that he’s working on a book on this topic, which is why I raise it, given that I think it’s a tendency of the argument rather than one actually made – he might want to consider whether he is headed in a direction of intermediation and corporatism that he himself might not finally favor.  But what links both my criticisms above is that a presumptively neutral and general sociology of civil society that implicitly privileges NGOs one likes and their politics runs a risk of not being attentive to the structural dangers of intermediation and corporatism in American democracy.  If the entire argument were reframed around the role of socially conservative churches in America and their politics, for example, the underlying theory of civil society and its “proper” role in democracy might look quite different to someone in Cole’s position.

But my disagreements aside, this is an important intervention in Constitutional theory post 9/11; articulate and eloquent as one expects of Cole, a public intellectual able to move effortlessly from law reviews to the New York Review of Books.  The article bears close reading and wide distribution and discussion.

Abstract: 

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object to measures that sacrificed the rights of others — Arabs and Muslims, and especially Arab and Muslim foreigners — for Americans’ security.

Yet perhaps the most important and surprising lesson of the past decade is that constitutional and human rights, which seemed so vulnerable in the attacks’ aftermath, proved far more resilient than many would have predicted. President George W. Bush’s administration initially chafed at the constraints of constitutional, statutory, and international law, which it treated as inconvenient obstacles on the path to security. The administration acted as if no one would dare to — or could effectively — check it. But in time, the executive branch of the most powerful nation in the world was compelled to adapt its response to legal demands.

Equally surprising is that these restraints for the most part were imposed not by the formal mechanisms of checks and balances, but by more informal influences, often sparked by efforts of civil society organizations that advocated, educated, organized, demonstrated, and litigated for constitutional and human rights. The American constitutional system is traditionally understood to rely on the separation of powers and judicial review to protect liberty and impose legal restrictions on government officials. After September 11, however, as in other periods of crisis in American history, all three branches were often compromised in their commitments to liberty, equality, dignity, fair process, and the “rule of law.” By contrast, civil society groups dedicated to constitutional and rule-of-law values, such as the American Civil Liberties Union, the Center for Constitutional Rights, the American Bar Association, Human Rights Watch, Human Rights First, the Bill of Rights Defense Committee, the Constitution Project, the Muslim Public Affairs Council, and the Council on American Islamic Relations, consistently defended constitutional and human rights — and in so doing reinforced the checking function of constitutional and international law. They issued reports identifying and condemning lawless ventures; provided material and sources to the media to help spread the word; filed lawsuits in domestic and international fora challenging allegedly illegal initiatives; organized and educated the public about the importance of adhering to constitutional and human rights commitments; testified in Congressional hearings on torture, illegal surveillance, and Guantánamo; and coordinated with foreign governments and international nongovernmental organizations to bring diplomatic pressure to bear on the United States to conform its actions to constitutional and international law.

Scholars have long focused on the role constitutions and the formal structures of government that they create play in reinforcing commitments to long-term principles when ordinary political forces are inclined to seek shortthis article, I argue that a more robust understanding of how constitutions work must take into account what I call “civil society constitutionalism,” in which nongovernmental organizations advocate in multiple ways for adherence to the rule of law, in court and out, and in so doing, do much of the “work” of constitutionalism. That role is particularly important in periods of crisis, when neither the formal separation of powers nor the public at large are likely to perform much of a checking function. I argue that the Bush administration was compelled to curtail nearly all of its most aggressive initiatives, and not because a court ordered him to do so, Congress required him to do so, or the American public demanded such change. In the final section, I suggest that the role that civil society organizations committed to constitutional and human rights played in this period has lessons for constitutional cuts. The United States’ experience during the decade following September 11 suggests that this focus is incomplete; we should pay at least as much attention to the work civil society groups do to “enforce” constitutional rights. Much like a constitution itself, such groups stand for, and can shore up, commitments to principle when those commitments are most tested. And while we often speak metaphorically about a “living Constitution,” civil society groups are actually living embodiments of these commitments, comprised of human beings who have joined together out of a shared, lived dedication to constitutional and human rights principles. As such, they are well positioned to influence the polity’s and the government’s reactions in real time, and in crisis periods may be the only institutional counterforce to the impulse to sacrifice rights for security.

In theory, constitutional doctrine, and constitutional practice.

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