Of pink suits, golf balls and civil liberties

SAM SMITH

From a talk given at an upper school assembly
at Maret School, Washington, DC, September 2006

In my son Ben’s senior year at Maret, he and a couple of friends visited a used clothing shop where one of them – Chris Friendly – found a pink suit and a pink fedora that he wore for his graduation. Chris and Ben were also featured with two buddies in odd poses in the Maret yearbook in a two page photograph accompanied by a caption from Nigel Hufnel, lead guitarist for Spinal Tap. “There is,” Hufnel said, “a thin line between clever and stupid.” My son explored this narrow divide by being pictured standing inside a large city trash can while playing a violin and wearing a ski cap. Ben no longer plays the violin in super cans – he prefers guitars in clubs – but the pink outfit continued to make regular appearances at Maret graduations – worn, so I’m told, by those who best exemplified the spirit of the pink suit.

And what exactly is that spirit? It is a spirit, to be sure, of independence but also a spirit based on confidence that others will tolerate this independence and perhaps even applaud it. At the very least it is based on the confidence that classmates will respect what the cartoonist Walt Kelly said was the basic right of every American to make a damn fool of themselves.

As I watched that graduation ceremony, my mind drifted back to the first meeting I attended at Maret. The speaker was the headmaster, Peter Sturdevant, an amalgam of Orson Welles and Rodney Dangerfield. He lumbered up to the stage and leaned into the microphone and began to speak. His first words to the new parents were these:

“Maret doesn’t have a dress code . . . Let me tell you why Maret doesn’t have a dress code. I used to teach at the Landon School. One day the headmaster sent us a memo saying that the boys could not wear tight jeans . . . Some of us in the faculty sent him one back in which we asked, ‘How do you define tight jeans?’ He replied that tight jeans were those where a golf ball could not be dropped between the waistband and the body and have it fall out at the ankle. We wrote back: “An English or an American golf ball?” . . . That’s why Maret doesn’t have a dress code.”

Part of America’s long struggle over civil liberties can be described as being between those who favor the pink suit principle and those who prefer the golf ball rule. Since I suppose some teachers would prefer I use a more elegant metaphor, let me also cite David Hackett Fisher who, in the book Albion’s Seed, describes the differences in four strains of early American settlement from the British isles. In the matter of civil liberties he notes that in New England, freedom was defined by the community. As long as you played by the community’s rules you were free. If you didn’t you either suffered punishment or, like Roger Williams, had to leave town and go found your own colony.

Much of the political battle in America today involves people attempting to impose their own community’s standards on the whole country. And it’s not just the right. Listen to liberals speaking of the “red states” and you often hear as much disgust as when a Christian fundamentalist talks about gay marriage.

In the frontier communities, Fisher notes that there was a sense of natural liberty – or what we might call libertarianism. It was personal freedom taken as far as possible. This spirit is still at home in much of America and tends to be conservative in economics and progressive in personal freedom. And you’re theoretically so free that the government isn’t meant to help you get out of trouble.

The third view of liberty – what Fisher calls hegemonic liberty – is based on power. This was found among the elite of early Virginia where the more power you had the more freedom you got. If you were a slave you had no freedom, if you were a tradesman you had more, but if you were a cavalier you had virtually unlimited liberty. This is the idea of liberty that we see with increasing frequency today at the top levels of business, sports, entertainment, and politics. Again, drawing a political division doesn’t really help. For example, both Bill Clinton and George Bush considered their power as a license of liberty in ways that the more restrained Jimmy Carter and Dwight Eisenhower never would have.

Finally, in the mid-Atlantic states, with no small help from the Quaker influence, you found what can be called a sense of reciprocal liberty, which is to say that I can’t be really free unless you are as well. You are entitled to your freedom as long as it doesn’t hurt mine. Thus, we must constantly negotiate the terms of our mutual freedoms.

Note that two of these forms of liberty – that defined by the community and that which is the privilege of power – are inherently unequal while other two strive for equality. And guess which two predominate in America today?

Sadly, the weakest form is reciprocal liberty. Both left and right seem to have forgotten that America is about sharing spaces with others who may have quite different views of the world. While writing one of my books, I asked my friend, the black journalist Chuck Stone, to give me a one sentence description of how to get along with people who are different than yourself and he immediately replied, “Treat them as a member of the family.”

Being the third of six kids, I appreciated that. And I recalled my father saying from time to time, “You don’t have to like your relatives, you just have to be nice to them.” It works for other Americans, too.

In fact, to extend the analogy a bit, it may help to think of America less in terms of left and right and more in terms of a dysfunctional family. We have always disagreed but we haven’t usually been so nasty about it.

Now if I’m doing a talk show and someone calls up to berate gay marriage my response is along these lines: “If you don’t like gay marriage, then don’t marry a gay. Beyond that it’s really not your business or mine. As a good American you don’t have to like gay marriage, but you have to be willing to share your land and its rights with those who do.”

My theory – and I come at this as a onetime anthropology major – is that tolerance usually precedes approval. You see this in families where parents have had to adapt to the fact that their child is gay or is marrying someone of another ethnicity. At first they may just bitterly bite their tongues but with time often become proud and loving parents once again. The stereotypes eventual surrender to actual experience.

This is how it happened in many places in the south after segregation just as Martin Luther King knew it would. He told his lieutenants to keep in mind that some day the people they were fighting would be their friends.

So one of the best things you can do to preserve freedom in the United States is to stand up for the rights of those with whom you disagree or even dislike. As William Allen White put it, “Liberty is the only thing you cannot have unless you are willing to give it to others.”

How has this struggle over the right approach to liberty worked out in America? It depends what year you’re talking about. Obviously, lots of things took much longer than they should have, but still, over the first two hundred years, many Americans became freer and more equal. This is in part because while America often did not have the right answer; it was a good place to look for the answer. America has never been perfect; it’s just been a place where it was easier to fix things that were broken. The ability to repair ourselves has long been one of our great characteristics and is absolutely dependent on the freedom to try things out. As Linus Pauling said, “The best way to have a good idea is to have lots of ideas.” Even if some cross the line from clever to stupid.

While we all know about the successful battles of women, labor, blacks and gays, you may not be aware of how many other struggles have been won as recently as during the lifetime of your parents and teachers. Here are just a few of these more recent victories:

The right of poor people to be represented in court

The right to have a lawyer after being arrested

The right of married people to use contraceptives

The right to be informed of your rights following an arrest and to remain silent

The right of young people to be protected under the Constitution

The right of free speech for students

The right of unmarried people to use contraceptives

The right to an abortion

The right of a student to notice and a hearing before disciplinary action is taken

If you were to count everyone involved in winning these suits you probably wouldn’t end up with more than a few hundred committed Americans who had dramatically changed the course of our history. A handful of citizens – with a lot of help from a few lawyers – going before a court and proving that something was not constitutional or lawful. I’ve done it myself seven times and we’ve won three times. As members of the baseball team know, that’s a .429 average and not all that bad. And just as in baseball you’ve got to be prepared to miss more balls than you hit.

But in 2001 the whole game changed. With 9/11 the standard of liberty became that determined by the level of fear.

It was not the first time. During the Civil War, constitutional rights had been short-circuited. During World One non-conformists had been thrown in jail including the Eugene Debs just for having given an anti-war speech. Debs ran as the Socialist candidate for president while still in prison and got nearly a million votes. In World War II, people were put in concentration camps because they had Japanese roots. And during the McCarthy era suspicion of disloyalty was enough to get you fired.

We now find ourselves in a similar period. Just as in the earlier instances, there was justification for the fear but not for its dangerously dysfunctional response. In order – supposedly – to protect our way of life, we find ourselves dismantling some of its basic characteristics beginning with civil liberties that have helped define what America was.

In fact, the trouble started even earlier than 9/11. If we had paid more attention to the unconstitutional aspects of the drug war, for example, we might have seen Guantanamo in the making. If we had paid more attention to the mistreatment of inmates in Supermax prisons we might have avoided Abu Ghraib.

Even before 9/11 your rights as a citizen of the United States were being. There was searches without warrants, increased use of roadblocks, wiretapping, drug testing, punishment before trial, travel restrictions, censorship of student speech, behavior, and clothing; excessive requirements for IDs, youth curfews, and video surveillance.

These are a few reasons why attention to civil liberties – even when most things seem to be going okay – is so important. Justice William O. Douglas once said, “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything seems seemingly unchanged. And it is in such twilight that we must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness.”

This is what happened in Germany. Everyone talks about the brutal results of the Holocaust, but too few consider the many mundane acts that led to it. An exception was the reporter Milton Mayer who in his remarkable book – They Thought They Were Free – quoted a German professor on the rise of Nazism:

“. . . To live in the process is absolutely not to notice it — please try to believe me — unless one has a much greater degree of political awareness, acuity, than most of us ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted.’

“. . . Believe me this is true. Each act, each occasion is worse than the last, but only a little worse. You wait for the next and the next. You wait for one shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.

“. . . Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven’t done (for that was all that was required of most of us: that we did nothing). You remember those early meetings of your department in the university when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair.”

When Hitler took power he helped establish his dictatorship by repeatedly invoking Article 48 of the Weimar Republic constitution which stated, “In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. In the pursuit of this aim, he may suspend the civil rights . . . partially or entirely. “

And why was it all so peaceful and easy for Hitler? In part because the supposedly democratic Weimar Republic had already used this provision 57 times prior to Hitler’s rise to power..

For such reasons, many of the real lessons of the Holocaust are not to be found so much in its death camps as in its birth places. And this is why the changes taking place in our own country now – some eerily reminiscent of Article 48 – deserve such close attention.
.
But, you say, we must protect ourselves against the terrorists. . . .

Yes, we must. But before we trash our constitution and our liberties, here are a few things to consider.

Are our efforts working? As in the picture of bin Laden with the caption: “I’m still free. Are you?” Simply because a strategy is invoked with much fanfare doesn’t mean it is the right one. Foreign Policy magazine recently asked a group of experts – including former secretaries of state and ex-CIA directors – how we were doing with the war on terror. 84% said we were losing it. It’s not a good idea to lose both a war and your liberties as well.

Then there is the moat problem. Building a moat around your castle seemed a great idea until someone came along with a way to send fireballs into your courtyard by catapult. It’s still happening. Five years after 9/11 you’re told you can’t carry bottles on board because someone has figured out a new way to kill you. And yet as you respond to each new threat in such ways, you are building your own prison.

Then there is the question of courage vs. fear. We’ve been taught to be afraid of so many things since 9/11 but we haven’t been helped much with our courage. On 9/11 one of the first things I thought about was a young British girl who came to live with us during World War II. Ann became a virtual sister and a person whose quiet courage I have always admired. A couple of years ago she wrote me of her trip to America as a nine year old:

“I set sail in the Duchess of Atholl in convoy. There was a slight skirmish with a submarine. I remember feeling the ship shudder as depth charges were dropped but we were unscathed and pressed on. . . My mother told me we might well be sunk. If I was dragged underwater, not to struggle. I would come to the surface naturally, then not to strike out to England or America but float on my back, as I had learned at school, until I was picked up.”

A few months later, Britain stopped sending children to America because two ships carrying them were sunk. Meanwhile back home, there were 57 consecutive nights of bombing. 27, 000 civilians lost their lives in the Battle of Britain, 32,000 were injured. Repeat 9/1l ten times in a two month period and you get the idea.

Ifan, the man Ann would later marry, was working as a medical student in London. Each day he would be given a set of colored tags to tie to the feet of victims of the Nazi bombings so the ambulances would know to which hospital to send them. When a particular color ran out, that meant there was no more room at that hospital. Meanwhile, London went about its business.

We need the quiet courage of the British during that awful time.

Then there is the question of risk. A recent article in Foreign Affairs estimates the probability of an American being killed in an terrorist incident is about 1 in 80,000. You are, in fact, more likely to drown, die of a workplace accident, be murdered, commit suicide, be killed by the side effects of a prescription drug, or die of cancer or heart disease. You are also more likely to die in an auto accident or from a hernia. Why are we so afraid?

There is also the message that history gives us. These problems don’t go away because some guerilla leader is killed. When I was in high school I played the role of a commander in the Irish Republican Army in The Informer, which was a play about a rebellion taking place thirty years earlier yet still going on as we took to the stage. Only recently – about a half century later – did Britain’s problems with Ireland subside – thanks not to force but through negotiation. I pray you do not have to reach my age before seeing an end to the current conflict.

Finally, I would argue that the easiest, quickest, least dangerous, and most cost-efficient way to reduce the danger of terrorism is to reduce the anger felt towards our country. You limit the constituency of the least rational by responding to the concerns of the most rational. Yet ask yourself: since September 11 what have we done to reduce our risk in this way? In what ways have we changed our foreign policy to change how others react to us?

Now you may discount or disagree with any or all of my points but what you can’t disagree with is that we never truly argued about them before assaulting our own civil liberties. The media has not discussed them, the Congress has not debated them. We just charged ahead as though there was only one answer. Yet, as Benjamin Franklin pointed out, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

I’m afraid you’ve got your work cut out for you. The twin threats to your liberties and our environment is unprecedented. They’re not about to go away. There are several ways to react. You can – as many of my generation did – pretend it’s not happening, fail to ask obvious questions, fail to act. Or you can react with fear and avoidance as we, in many ways, are being encouraged to do. But you can also act with the simple witness of a free American, prepared but not paranoiac, determined but not self-destructive, loyal to our country’s ideals and not merely to its symbols.

One of the best ways to pursue such a course is to always act and think of yourself as a free American. Above all avoid what Spengler called the “terrible censorship of silence.” Don’t be afraid to speak up for what you believe is right.

Don’t let others bully you into fearful behavior.

Help others retain their freedoms.

Treat those with whom you disagree as a member of the family

Learn your rights. It’s not that hard. In fact, In fact, the important aspects of the Constitution are easier to understand then, say, the rules for the NFL player draft or free agentry and salary caps.

And don’t let anyone tell you that your rights must be balanced by this or that. Lately, politicians and the media have taken to talking about “rights and responsibilities,” as though free speech and free religion and not having cops raiding your house without a warrant were privileges we citizens only get when we’re well-behaved. Don’t believe them. Your constitutional rights, to borrow a phrase from the Declaration of Independence, are “unalienable.”

Finally, long ago I worked with a civil rights leaders whose wife use to say, “the trouble with Julius is that he takes the Constitution personally.” Now my wife says the same thing about me. I hope you will feel the same way. Your country desperately needs your help in making its promises possible once more. The best way to start is to learn your rights and then take them personally.

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