Tuesday, October 19, 2004

Wisdom of Solomon

Phil Carter of the Intel Dump is having an online debate with Yale Law School 3L Adam Sofen regarding the Solomon Amendment (withholding federal funding to schools that don't allow Fed recruiters...which creates a dilemma for many law schools who have a non-discrimination policy for potential employers and the military which has a "don't ask, don't tell" policy towards gays). The debate is hosted by Legal Affairs Magazine.


I personally have not formed an opinion on the matter one way or another. As someone who is seriously considering JAG as a career option, I'd certainly like the opportunity to meet with military recruiters. As someone who believes in unconditional equality, I think it unfair to coerce schools to abandon their policies when it comes to the Federal government.


Periodic comments on specific points made by Carter and Sofen...

Carter writes, "The military doesn't exist as an institution of equality or democracy—it exists to fight and win America's wars, so that equality and democracy may flourish here. By way of historical analogy, the U.S. military is Sparta, and you cannot impose Yale's Athenian values on Sparta and expect it to still win wars."

Ouch. That's all I can say. This is again another example of popularization of ancient history. I can't even imagine Victor Davis Hanson making such allegation. Rather than discussing various ancient wars where the Athenians and Spartans fought, I think Pericles' comments sufficiently make the point. In the famous funeral oration, Thucydides, the historian of the Peloponnesian War, paraphrases Pericles as saying,

"Then, again, our military training is in many respects superior to that of our adversaries. Our city is thrown open to the world, though and we never expel a foreigner and prevent him from seeing or learning anything of which the secret if revealed to an enemy might profit him. We rely not upon management or trickery, but upon our own hearts and hands. And in the matter of education, whereas they from early youth are always undergoing laborious exercises which are to make them brave, we live at ease, and yet are equally ready to face the perils which they face. And here is the proof: The Lacedaemonians come into Athenian territory not by themselves, but with their whole confederacy following; we go alone into a neighbor's country; and although our opponents are fighting for their homes and we on a foreign soil, we have seldom any difficulty in overcoming them. Our enemies have never yet felt our united strength, the care of a navy divides our attention, and on land we are obliged to send our own citizens everywhere. But they, if they meet and defeat a part of our army, are as proud as if they had routed us all, and when defeated they pretend to have been vanquished by us all.

If then we prefer to meet danger with a light heart but without laborious training, and with a courage which is gained by habit and not enforced by law, are we not greatly the better for it? Since we do not anticipate the pain, although, when the hour comes, we can be as brave as those who never allow themselves to rest; thus our city is equally admirable in peace and in war. For we are lovers of the beautiful in our tastes and our strength lies, in our opinion, not in deliberation and discussion, but that knowledge which is gained by discussion preparatory to action. For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection. And they are surely to be esteemed the bravest spirits who, having the clearest sense both of the pains and pleasures of life, do not on that account shrink from danger. In doing good, again, we are unlike others; we make our friends by conferring, not by receiving favors. Now he who confers a favor is the firmer friend, because he would rather by kindness keep alive the memory of an obligation; but the recipient is colder in his feelings, because he knows that in requiting another's generosity he will not be winning gratitude but only paying a debt. We alone do good to our neighbors not upon a calculation of interest, but in the confidence of freedom and in a frank and fearless spirit."
I don't think this is as bad as my Crim law prof claiming "eye for an eye" came from the Bible, but again, I'd expect Carter to be familiar with the particular Athenian pride in serving bravely, while managing the army democratically (e.g. having 10 commanding generals with alternating days of command). There might be an argument made about Plato and later philosophers criticizing democracy (because Athens lost to Sparta), but the blame could just as easily fall on individual idealogues. Bottom line, Athenian values served well, if not better than Spartan values, on the front lines.


I just saw a story on CNN about military recruiters. One portion talked about the No Child Left Behind Act forcing schools to give recruiters the addresses and phone numbers of all 17 and 18 year olds, at the risk of losing federal funding. To me this is FAR, FAR more troubling than anything forced on the law schools. I can't underestimate the value of free speech and free assembly, but to force schools to divulge private information...I wonder if Carter and Sofen will discuss this aspect?



Blogger Phillip Carter said...

Ouch... I'm glad to see that your time at Boalt has not dulled your rapier wit one bit.

Notwithstanding your valid point about the Athenians' warfighting prowess, I think the point still stands. It is possible to marry democratic values and warfighting abilities. And certainly, the Greeks had no issues with gays in uniform -- indeed, they encouraged the practice of homosexuality in the ranks. But the larger point is that most successful militaries throughout history have adopted Spartan society as their model, because it's more effective and more efficient to conduct a military organization as an undemocratic form. Obviously, we can't go that far in the U.S., because our citizen soldiers come from a democratic society and go back to one when they get discharged. But we can't treat the military as if it's some Boy Scout camp or Model U.N. It has a purpose -- to fight and win America's wars -- and all else is secondary.

10/20/2004 7:56 AM  
Blogger Armen said...

It's not close enough to finals for the wit to die...not to mention there are plenty of people around Berkeley who take things way too seriously...someone has to bear the burden of light-heartedness.

Speaking of which, I don't see why you are not making arguments along the lines above in the debate. Specifically, "whoa wait a minute...what might be discrimination in the civilian world, actually has a useful purpose in the military. Non-discrimination is not the only Con right that individuals waive when they enter the service...each of those rights waived also has a useful purpose in the military's ability to wage war. For law schools to insist, that the military adopt a policy that will potentially be detrimental to their ability to conduct war is unreasonable. Again, there is really not much of a constitutional issue as I see it since the highway bills infringe on state sovereignty. Contractors with the DoD I'm sure have to sign some sort of non-disclosure agreements. Again, the harm resulting to one side is not nearly equal to the benefit received by BOTH SIDES.

10/20/2004 7:44 PM  

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