Torture & Allegiance: Part 2, Martyrs or Criminals?

A couple of you wondered in the last post if Kahn's locations of sovereignty and law (from his book Sacred Violence) are really so discrete. Which is a fair criticism. In this post I want to try to illustrate those spaces a bit more and show how, in my opinion, they do provide an interesting lens upon various aspects of political life.

An interesting illustration concerning the locations of sovereignty and law is how Kahn relates the two foundational documents of America--The Declaration of Independence and the Constitution--to those spaces.

Kahn sees the Declaration as a document of sovereignty. It is a document that rejects the sovereignty of the British King and establishes a new political order. It is, at root, a declaration of war. It is a revolutionary document. From the final section of the Declaration:

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

For Kahn, the Declaration is not a social contract or set of laws. It is a document that breaks and reorders sacred allegiances. It redefines enemies and friends. And, to accomplish this destruction of one sovereign to create a new one, the signers were willing to die ("mutually pledge each other our lives"). As Benjamin Franklin quipped after signing the Declaration, "We must all hang together or, most assuredly, we shall all hang separately."

In contrast to the Declaration, the Constitution of the United States is a social contract. It is not a document of revolution or war. The Constitution doesn't create a new sovereign, it orders one by establishing the law. From the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The point for Kahn is that while the Constitution provides stability and the rule of law, The Declaration of Independence is a radicalizing influence in American life. The Union was created by revolutionary bloodshed. Thus, built into the American political system is this notion that new revolutionaries can throw off a tyrannical or dysfunctional national government. The Civil War was fought about just this issue. Thus, when Lincoln gave the Gettysburg Address he reaches back to the Declaration rather than the Constitution:

Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure.

The political point between Lincoln and the South was this: Who gets to claim the Declaration? Who gets to define sovereignty? The answer isn't abstract. It is a matter of war. Of killing and being killed. Thus the religious language of the Gettysburg Address:

But, in a larger sense, we can not dedicate... we can not consecrate...we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government: of the people, by the people, for the people, shall not perish from the earth.

The point for contrasting the Declaration and the Constitution is that they illustrate Kahn's distinctions between law and sovereignty. The Declaration, as a document of sovereignty, is a document about allegiances, revolution, enemies, tyrants and war. The Constitution is about justice, social contract and law within an already established union. Again, the Declaration creates the Union and the Constitution orders it.

Why go into this distinction? Well, it allows us to track the cross-currents in American political speech. Specifically, speech that appeals to the Declaration will be revolutionary speech, speech about the dissolution of the Union, of creating a new sovereign. That is, speech that appeals to the Declaration will raise the specter of tyranny and make calls for revolution. This kind of speech is volatile because it is speech about war. Speech motivated by the Declaration is inherently violent speech.

Such speech raises the same question faced in the Civil War. Is this revolutionary speech treasonous? In rejecting the sovereignty of the Union who gets to claim the Founding Fathers? Those claiming the Declaration (revolution) or those claiming the Constitution (union)? Regardless, as witnessed in the Civil War, a debate about sovereignty is a debate conducted in blood.

Let me continue to illustrate the differences between law and sovereignty by taking up another illustration used by Kahn. How should we see someone like Timothy McVeigh, the Oklahoma City bomber? McVeigh took his political cues from the Declaration of Independence and considered his attack to be understood as a rejection of American sovereignty. Notice the equivalency he makes in this description of his motives for the bombing:

Additionally, borrowing a page from U.S. foreign policy, I decided to send a message to a government that was becoming increasingly hostile, by bombing a government building and the government employees within that building who represent that government. Bombing the Murrah Federal Building was morally and strategically equivalent to the U.S. hitting a government building in Serbia, Iraq, or other nations. (see enclosed) Based on observations of the policies of my own government, I viewed this action as an acceptable option. From this perspective, what occurred in Oklahoma City was no different than what Americans rain on the heads of others all the time, and subsequently, my mindset was and is one of clinical detachment. (The bombing of the Murrah building was not personal , no more than when Air Force, Army, Navy, or Marine personnel bomb or launch cruise missiles against government installations and their personnel.)

Here is where I think Kahn's analysis is interesting and helpful. McVeigh wanted to locate his action in the space of sovereignty. He wanted his action to be against The United States of America. That is, McVeigh doesn't see his act as criminal, as existing within the space of law. McVeigh is aiming at something deeper than law. His is an act of war. In short, he wants to be seen as a martyr.

Pushing against this, the American judicial system wanted to deny McVeigh his access to that location. McVeigh was, simply, a criminal. McVeigh wasn't a revolutionary martyr. He was a psychopathic killer. By denying McVeigh martyrdom, by locating his action within the space of law rather than revolution, the American government denied McVeigh his route to heroism. Martyrs are heroic, even to false gods. But criminals are never heroic.

The point is, the location of McVeigh is critical to how, politically, one sees his actions. If one locates McVeigh in the space of sovereignty then he's a hero to a revolutionary cause. But if you locate McVeigh in the space of law he's just a cold-blooded killer. Location is everything.

The point for today's post is that I think Kahn's division between law and sovereignty isn't wholly without merit. It might not be able to shed much light on the torture debates, but it is a useful hermeneutic to analyze American political discourse. Because there sure has been a lot of talk lately about revolution, tyranny, and secession (recall I live in Texas). Plus, Kahn's model allows us to examine how one's location in the political landscape is fraught with meaning (e.g., Are you a criminal or a patriot?). Location defines heroes, martyrs and criminals.