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A Triumphant National Narrative

by april otterberg '06

Illustration by Selcuk Demirel

One of the numerous changes America has experienced since the September 11 terrorist attacks is a surge in patriotism. Though patriotism certainly is not a new concept, it has undergone a new awakening in America. No longer is the American flag displayed only on the Fourth of July; rather, flags now are flown year-round and decorate store windows, car bumpers, T-shirts, and the lapels of politicians.

But our newly demonstrated patriotic spirit may reveal another, seemingly more subtle but potentially dramatic change in American society. In a recent roundtable discussion held at BC Law, Boston University Law School Professor Pnina Lahav analyzed the new patriotism from within the framework of legal historian Lawrence Friedman’s conception of how societies transition, over time, from the traditional to the modern. Lahav concluded that our return to patriotism could be seen as one indication that in times of crisis or fear for our security, we retreat to the mindset of days gone by—days of tradition, unity, and steadfast loyalty to the nation as the prominent actor and protector in our lives. This return to tradition and patriotism, she argued, then influences and shifts the context within which the American court system functions.

In The Republic of Choice and the Horizontal Society, Friedman expounded on the idea that traditional society is vertical— typified by a clear hierarchical structure with pre ordained, fixed identities and little ability to change one’s position in society. By contrast, the modern society is one of horizontal choices; the structure of society is loose-fitting, and people are free to make choices, change the present, and design their futures. Friedman observed that at the end of the twentieth century, America had developed the chief characteristics of a horizontal society: subnations of individuals with a wide variety of beliefs and lacking relative overall unity. In the legal system, the horizontal, modern society revealed itself in frequent discourses on rights of individuals, even when those rights came at a cost to the interests of the nation.

But America changed after September 11, and, Lahav argued, the surge in patriotism heralded changes in society’s horizontal structure and discourse on rights. Out of fear, she reasoned, we seek protection— and protection must come from the state. Then, we seek to solidify the well-being of the state in order to maximize its ability to protect us. Instead of rights, we focus on duty because duty is the chief expression of patriotism and loyalty to the nation-state. Because duty ultimately tends to subordinate the rights of the individual to the prominence of the state, society becomes less horizontal and more traditionally hierarchical; the state takes a superior status in our worldview.

The law, too, reflects this shift in perspective, Lahav said. Decades ago, Friedman asserted that law is contingent on history and reactive to social forces; law does not, he maintained, exist or develop within a vacuum. Not only has September 11 shifted the nature of society itself, but it also has altered the context in which the Supreme Court evaluates its cases. Two of the Supreme Court’s decisions from June 2004, Lahav argued, demonstrate the impact of the context of the new patriotism.

First, Elk Grove Unified School District v. Newdow, the case that addressed whether the phrase “under God” in the Pledge of Allegiance was constitutional, directly confronted America’s need to be patriotic, even though the court sidestepped the constitutional issue to decid the case on a technical standing issue. Newdow, as an atheist father who attempted to preserve the right of his daughter to be free from state religion, symbolizes a horizontal society supportive of rights and choices, including the one to be an atheist. In the justices’ opinions and the court’s choice to release its judgment on Flag Day, however, the court demonstrated somewhat of a willingness to subvert Newdow’s rights to the needs of the majority as an overall affirmation of patriotism and the prominence of the nation-state. Some justices evaluated the long religious history of the nation and concluded that God and patriotism go hand-in-hand; keeping a reference to God in the pledge reaffirms the court’s loyalty to the nation-state, which is the purpose of the pledge to begin with.

Hamdi v. Rumsfeld, the “enemy combatant” case, also reveals the prominence of the nation-state, though in a strikingly different way. If Newdow describes a nation “under God,” Lahav argued, Hamdi depicts the relationship between the nation and its citizens. A nation protects its members; citizenship status designates membership and therefore promises the members the state’s protection. Therefore, Hamdi, as an American citizen detained on American soil, deserved protection, which included the right to challenge his detention in federal court.

In other words, reading the two cases together, a nation under attack needs protection, which it gains by individuals’ loyalty and patriotism. Loyalty and patriotism are intimately connected to symbolic acts such as the recital of the pledge. Overall, then, God, the flag, the pledge, national soil, and citizenship are woven into “a triumphant national narrative,” Lahav said, which reaffirms the prominence of the nation-state.

Since giving the nation a status superior to that of the individual bears resemblance to a traditional, hierarchical society, Lahav wondered what the future holds for the composition of America. Even though our society is deeply modern in many other ways, this undercurrent of patriotism—and thus traditional nationalism—remains strong and may continue to reveal itself not only in the flags that we raise, but also in the laws and decisions that we make.

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