The 7th Annual Conference
Friday, April 25, 2003
Lipman Room, University of California, Berkeley
Sponsored by:
UC Berkeley Col. Charles T. and Louise H. Travers Program on Ethics and Accountability in Government, UC Berkeley Political Science Department, UC Berkeley Institute of Governmental Studies, and The Commonwealth Club of California.
This one-day conference will explore the idea of responsible citizenship and the role of citizens in shaping public policy. What is the role of citizens in holding government accountable for public policy? What is the role of formal education in teaching these responsibilities? Has the nature of citizenship changed since Sept. 11th?
The task of creating citizens in a liberal democratic society, where
people are divided by cultural, philosophical, and religious beliefs,
is a necessary but daunting task. Political theorists, philosophers
of education, and educational policymakers argue about the proper
scope, content, and aims of civic education. But whatever approach
they endorse, teachers will confront the challenge of creating
citizens in settings where minorities may have good reasons to be
suspicious of or hostile to civic education. Children of minority
groups which have historically been oppressed by the state, or who
have experienced discrimination at the hands of the state, are likely
to respond differently to civic lessons than children whose families
or groups have not experienced such oppression or discrimination.
My presentation aims to show why civic educators and the task of
creating citizens must be attentive to the history of what
citizenship has meant for different groups in society. This is on
one level a trivial point: teachers must be sensitive to the
experiences of children in the classroom. But the consequences for
theorists are profound: the scope and content of civic education
cannot be decided at the level of theory and must take into account
the history of citizenship in every state. I shall end with a plea
for historically informed theorizing, and theoretically informed
history.
This paper looks at an episode of rights-claiming or granting that occurred
during the First Red Scare when thousands of people were saved from
deportation by the actions of a single man who took it upon himself to act as
if aliens had rights of habeas corpus, due process, and legal representation
that they did not in fact have. There was room for such executive,
administrative initiative because there was no possibility of judicial review
in such cases (emergency, etc.). Might this mean that judicial review is not
always -- and certainly not in times of emergency -- a reliable or desirable
way to secure rights and protect freedoms? How do emergencies invite us to
think about the relationship between courts and democracy?
Mariano-Florentino Cuellar - Three Versions of Law, Citizenship, and National Security
Citizenship is often taken to call for some kind of responsible engagement in
civic life. Yet national security problems are sometimes considered best left
to executive branch authorities. At the intersection of citizenship and
national security lies the aspiration for responsible self-governance in a
dark and dangerous world. Law plays a major part in shaping what happens at
that intersection, by serving in three roles. First, is the law's role as
gatekeeper: it regulates membership in the national community and the
privileges that flow therefrom, such as access to immigration benefits or
government jobs. Second, the law is guardian: it provides a framework for
countering national security threats. Sometimes that framework is notable
most for its absence of constraints, as with the president's discretion to use
military power or impose economic sanctions. Other times the framework lets
government use the familiar tools of the criminal justice system. Finally,
the law is an accountability mechanism: it embodies the rules that control
access to information and participation in national security decisions. A lot
of important national security information is classified, and what little
public participation exists in domestic regulatory policy is almost completely
absent on foreign affairs issues. On the other hand, outside interest groups
are not completely irrelevant, and our elected leadership is accountable for
their national security decisions. Even wars don't stop elections. All in
all, these different versions of law strike a balance between protecting
security and freedom.
Or do they? Beneath the superficial aspiration for balance between security
and liberty lurk real problems that have yet to be solved. All three areas of
legal doctrine respond to consequentialist reasoning. Whether the issue in
question involves constitutional rights, international law, designation of
enemy combatants, or statutory authority to release national security
information, the law's operation is driven by assertions about the costs and
benefits of particular policies. Citizens are hardly in a position to
evaluate those benefits. Doing so is analytically difficult, there are few
legal structures for participation in national security policy beyond
elections, and access to information is severely restricted. In short, our
capacity to make decisions about the law's gatekeeper and guardian roles
depends on the law's accountability function.
It would be hard to argue that this function works well enough already. Every
generation confronting national security threats must face the question of how
these interrelated areas of law should evolve, and in the process, how
national security should be defined. Our own legacy in this area depends on
what we do with that accountability function - how we experiment with it and
guide its development. In the meantime, false certainty is probably worse
than accepting that when it comes to law, citizenship, and national security,
we are mostly living a mystery.
