Bobbitt: How To Defend World Order

Oct 16, 2017

Constitutional scholar and international relations expert Philip Bobbitt addressed the public on Oct. 11 at Texas A&M University-Commerce. Bobbitt's appearance was part of the university's Sam Rayburn Speaker Series

Currently on faculty at Columbia University and the University of Texas, Bobbitt has an extensive history of government service in all three branches of the federal government, during six administrations, Republican and Democratic, including most recently as Director for Intelligence Programs, Senior Director for Critical Infrastructure and Senior Director for Strategic Planning at the National Security Council.  Until recently he was a member of the External Advisory Board of the CIA.

A transcript of his Oct. 11 address follows.

Audio transcript

I knew Sam Rayburn. He was not a tall man. By the time I came along, when I was just a little boy, he was entirely bald and he had liver spots on the top of his head. He was known to be very gruff with congressmen and senators, but with children he was quite sweet-natured. We'd like to pat the liver spots on his head and he would lean over so we could do that. A very kindly man.

I'm going to talk about how to defend world order today, and a statement of Rayburn's came to my mind. He said, "If you're going to build a barn, you need a family and friends. It takes a lot of people but just one jackass can kick it down." World order is on many people's minds these days perhaps because it seems to be coming apart. For the first time since World War II, that is since the founding of the current institutions of our world order, a European state has invaded another state and annexed its territory. Yet, another state has admitted to deceiving its treaty partners by developing nuclear weapons and testing them in defiance of UN Security Council resolutions. A leading state has defected from the European Union and there are secessionist movements, several of the member states of that union. The American president has renounced a crucial climate change treaty negotiated by his predecessor, and he has accused some of our closest allies of exploiting their alliance relationships with the U.S..

All of these developments are related to the deep change, and the nature of the state that is underway. Nowhere is this more so than in the U.S., the leading industrial nation-state, and the chief defender of the current world order. I believe we cannot understand what's going wrong in the international order, without understanding what's going wrong in our country. Moreover, I believe that if we can successfully address America's crisis, we ought to be able to cope with the threatening dissolution of the world order.

So, let me begin at home. American exceptionalism is usually defined as the preening claim that the U.S. is uniquely virtuous or wise. This is the inference, I'm sure, was intended by the Reagan speech writer who [inaudible 00:02:43] John Winthrop's address to his fellow pilgrims about a shining city on the hill. This was also, probably, what President Obama had in mind when he stated that all countries are exceptional. He wanted to avoid offense by giving out a trophy to every team member who showed up.

When I was a boy, growing up in Texas, many things puzzled me. We lived in a house with a large lawn that sloped down to the street. And some nights, I would lie on my back in the grass and look at the stars and wonder whether the star I saw still existed, because it had taken the light that pinpointed it so long to get to my eyes. One thing I often heard from my parents puzzled me. If they departed from some customary rule in our house, and I questioned this apparent lapse, they would say, "Oh, that's the exception that proves the rule." Have you heard that? Your parents ever tell you that? I thought, "How can an exception prove a rule?" It's a statement about proof. The phrase, "The exception proves the rule," is nonsense. Proof is the affirmation of a proposition. An exception, actually, limits the domain of a rule, and now I've come to believe that the phrase really is no more than a corruption of the statement, "The exception provides the rule." Exceptions tell us what the boundaries are for the application of a rule.

For example, all persons born in the U.S. are eligible to serve as president, except those who would be under the age of 35 on Inauguration Day. The exception provides the rule. The most famous remark in the study of modern state, and exceptions to its rules, was made by Carl Schmitt. He wrote, "Sovereign is he who determines the exception." That presumably is, because determining the exception provides the limit of the application of the rule.

Well, that brings me to the first element of my argument, American exceptionalism. By this hackneyed phrase, I do not mean what makes us so much better than everybody else, but rather, what makes us America, as opposed to British, or French, or German. He that is sovereign determines what is exceptional, and it is the unique American ideas about sovereignty that really define the American state.

Have you ever asked yourself why the Americans were the first people to have a written constitution? Every society has a constitution, and many societies in the late 18th century, clubs, religious orders, merchant bankers, corporations, households, they all had written sets of rules. Even pirates did to govern their behavior, but not states. Why not? The reason the U.S. wrote its constitution down, was because the Americans had put the state under law. As long as the state was sovereign, there's no point in writing down rules to govern it. The state would always simply amend those rules, but the American Constitution reflects the idea that the state is not sovereign. It is a limited sovereign. There are certain inalienable powers, powers you can't sell, or barter, or even give away, that are reserved to our people and cannot be given to the state.

I recently read an essay that concluded, and I quote, "Far from being a blueprint for democracy, the Constitution kept real power away from people while protecting wealthy investors and slave owners. It had nothing to do with human rights or social equality." Actually, the Constitution is precisely a blueprint for democracy, because it creates a governmental structure, that prevents democracy from decaying, and a license from anarchy. Unlike the other states in the late 18th century, the American Constitution did not exempt aristocrats from taxation. To observe that it has nothing to do with human rights or equality, reveals how little the writer understands the depth and the difficulty of his subject.

His assertions are a part of a more general war on our history that I'll discuss in a minute. For now, I'd just like to describe why the Constitution has everything to do with human rights and equality. To do this, we'd have to go beyond the customary claims that the historiography of America's founding, pits liberalism against republicanism, liberalism with a little "l" and republicanism with a little "r".

Louis Hartz very famously observed that the American constitutional ideas were derived from those of John Locke. "For Locke," he said, "Equality is natural to human beings, because at a minimum, all people own the same property, their labor. Freedom is preferable to authoritarianism, because the best governments are those that win the consent of the people. Religious toleration is a good idea, because faiths that are free will be stronger than those that are coerced." Well, not exactly. Equality is not natural to human beings, because all people do not own the same property. Or, rather, the property that they do own, their labor, has value that varies enormously from person to person. Equality before God is natural, because all people's souls are equally subject to redemption, judgment and salvation.

Freedom is not preferable to authoritarianism, because the best governments win consent, the term best is too vague to support this assertion and can be easily manipulated to support just the opposite. Rather, freedom is preferable, because coercion is incompatible with the exercise of the conscience. And that's the basis for the operation of constitutional decision making in America. Religious toleration is not a good idea because faiths will be stronger if they're not coerced, the history of Europe seems to prove just the opposite. Rather, religious toleration is preferable to intolerance, because intolerance suppresses the ability for reflection, which is a necessary attribute of the conscience. The liberal consensus in America around property rights, social mobility, individual freedom, and popular democracy, arose from shared commitments to the decisive role of the conscience in determining the individual's fate. You might call this the real Protestant ethic. And that is incompatible with insecure property rights, and promises, rigid class boundaries that are inherited, coercive rules that suppress individual expression. And the derivation of government authority from processes that privilege the few, while denying equality to the many.

In a review tracing this historiography, one scholar described our founding as, "Lockean liberalism versus republicanism." Liberalism insists that the country was founded on principles that recognize an abstract natural right to life, liberty, and property. These natural rights are liberties that define a private sphere. By contrast, republicanism informed the founders' vision of what America should be. Republicanism elevates such notions as the common good, the public sphere, our duties above our liberties and private happiness. It can justify infringing on our rights, and so it's in conflict with liberalism. To anchor this in sacred American text, it's claimed that the liberal Lockean Declaration of Independence is in conflict with the republican Machiavellian Federalist Papers. This division may indeed be relevant to British thought, where popular sovereignty is completely vested in the state. And, where human rights are granted by the states, as in Magna Carta. But, it gets exactly wrong, the American constitutional settlement and it's most important element. That the purpose of putting the state under law is to protect human rights. And, that the protection of human rights requires that the state treat its citizens equally.

Because our particular constitutional innovation created a partial sovereign, removing from the State the power to determine the exception. This structure implies, not a finite list of rights like Magna Carta, or the Bill of Rights, but an infinite list of human rights that can be inferred from the limitation on government powers. A structure of enumerated powers, where any power not permitted is prohibited, implies a compliment of unenumerated rights. This means our republic enlists our energies, and our efforts, and our obligations, not just on behalf of each of us, but on behalf of all of us. We're not a conservative or a liberal state. We're a state that seeks to conserve a liberal tradition. And this, is the American Constitutional Ethos. Like most law students of my generation, I used to think the Declaration of Independence had no legal status, it wasn't after all ratified, like the Constitution. On this, as in so many things, the late professor Charles Black turned me around. I came to realize that the Constitution created a state that was based on the Declaration of Independence. And so, the ratification of the Constitution amounted to the ratification of the Declaration. And that explains why the Declaration is such a rich source for ethical argument in Constitutional Law. One of the six fundamental modalities of constitutional argument that I taught this young woman in the front row just a few years ago.

And the Federalist Papers are an abundant source of historical argument for the same reason. And the U.S. Reports were a doctrinal argument. The ethical argument is sometimes called the argument from tradition. And that fits with my thesis, that it's a liberal human rights tradition that we're trying to conserve, with the bull works, and bastions, the towers, and moats, all the constitutional architecture. You might say that to preserve, protect, and defend is a pretty good definition of to conserve. What we're conserving when we enforce the Constitution is this ethos. An ethos of tolerance, social mobility based on effort and merit, a pluralist society with power based on consent, which is given form by the system of checks and balances, shared and linked powers, and independent judiciary. The American Constitutional Ethos is our unique take on a tradition that flows from The Reformation. If this tradition is the child of the European Reformation, you might say that Marxism is the child of the Enlightenment a century later, with its focus on scientific orthodoxy and prediction. And that fascism is the child of Darwinian biology a century after that, with its focus on the genetic basis for nationalism.

Americans sometimes tend to forget that a nation is not a state. Indeed, there are many nations, like the Curds, or the Palestinians, or the Cherokee, who don't have states. We forget this in this country, we forget that a nation is a cultural, linguistic, historic, ethnic group, because in this country that's not what a nation is. To be a part of our nation you only have to be a citizen. That is the basis for nationhood. And this is a very important divergence from most of the other states of the world. Marxism and fascism embrace progress, whether it is the progress of science, or the steady widowing of the survival of the best adapted. Both claim to rely on science and on the social sciences, which are themselves thought to be indicia of progress, and drivers of progress.

But, the liberal tradition embraces adaptability and is very skeptical of progress. It's always willing to change. This tradition has its basis in tolerance. That we conserve competing values over time by not destroying them, but by giving each of them a chance at the wheel of fortune. The liberal tradition assumes that any one moment we, not only can be wrong, but to some degree, we probably are. That we can never instantiate all of our values simultaneously, but promote some while degrading others, and then we try to correct for that. Marxism and fascism are irritable in the sense that they want to destroy the impediments to progress that include dissent free debate. The liberal tradition not only had different sources than its enemies in the war that began in 1914 and ended in 1990, it had different methods as well.

The American Constitutional Ethos has been under some attack, both for its internal and its external history. Everybody in this auditorium will know what that attack is based on. It denies that America's values, our history, our system, are really worthy of admiration. It concedes that the U.S. possesses certain unique qualities, a high-level of [inaudible 00:16:27], a political culture that privileges the conscience, but it asserts that our actions abroad had nothing to do with this ethos. That they had been determined primarily by power, and the competitive nature of international politics.

Let me give you half a dozen examples. First, it's said that while Americans claim they are exceptional and indispensable, two different points by the way. Many states, many nations have made this claim. Among great powers, thinking you're special is the norm, not the exception. Second, although Americans like to think their country behaves better than other states, and certainly better than other great powers, this is false. The U.S. has been one of the most expansionist powers in modern history, expanding across the continent, seizing territory from Mexico and the Native American population, which it ruthlessly eliminated by a campaign of genocide. The conquest of the Philippines at the end of the 19th century killed some 200-400 thousand Filipinos, almost all of them civilians. And the United States and its allies killed another 300,000 Germans, and 330,000 Japanese, bombing their cities. The U.S. dropped more than 6 million tons of bombs during the Indochina War, and it is responsible for roughly 1 million civilians who died in that war.

U.S. military actions have led directly, or indirectly, to the deaths of a quarter million Muslims over the past three decades, including the more than 100 thousand who died after the Iraq invasion. U.S. drones and Special Forces, in seeking to destroy terrorists in at least five countries, have killed an unknown number of innocent civilians in the process. Quite a record. Third, while the U.S. proclaims this devotion to human rights and international law, it has refused to sign most human rights treaties, including the landmines' treaty. And it is not a party to the International Criminal Court. Nor has the U.S. moved in the direction of decommissioning its vast nuclear arsenal, as it promised to do in the Nuclear Non-Proliferation Treaty, the NPT. Fourth, the U.S. has often made common cause of some of the world's worst dictators. Nor has its own record been without blemish. That abuse of prisoners at Abu Ghraib, the American administration's reliance on torture and preventive detention are well-known. President Obama's decision to wage drone warfare without judicial warrants, and to wage a war with questionable Congressional authority suggest that these abuses are not partisan or confined to any administration.

Fifth, although Americans tend to congratulate themselves for winning World War I, there are many scholars who think we went into the war when great European Empires were thoroughly depleted, so that we could succeed to their rights and powers. And, although Americans congratulate ourselves on having won World War II, most of the fighting was in Eastern Europe, and the main burden of defeating Hitler was borne by the Soviet Union. Although Americans like to think they won the Cold War all by themselves, that would ignore the contributions of the courageous dissidents, whose resistance to Communism produced the Velvet Revolutions of the late 1980s.

Sixth, and finally, although President Clinton said the U.S. was indispensable to the forging of stable political relations, and his Secretary of State, Madeleine Albright, referred to us as, "the indispensable nation", we will soon find out if this is really true. Like the little boy who finds himself at the head of a marching band and thinks he is leading through the streets, if the little boy turns down an alleyway, the band will go on without him. What states today look to the United States for moral and political leadership? Well, that's quite an indictment. In some respects it depends upon a uninformed audience.

For the defense, I'd like to begin with a question that forms the narrative spine of one of the great American classic movies. A film so familiar to Americans of my generation, from their Christmas holidays, that you could say it was part of the American Ethos itself. Well, I wonder how many of you have ever seen or heard of this film. It's called, It's a Wonderful Life. That's about the young banker in a small American town, who struggles to break the bonds that hold him to that little town. He wants to go out and see the world the way many of you do. But, he's forever thrown back on the familiar duties of earning a living, of family, of obligations to friends. When on the very day his heroic brother's about to come back to his home town to celebrate his having won the Congressional Medal of Honor ... the protagonist, of course, was rejected as not fit for service ... an innocent shortfall to the bank's books threaten to bring him to ruin and shame. He attempts suicide on Christmas Eve and he asks the character who saves him whether it would have been better if he'd never been born. And then, the film plays back his life as if, in fact, he never had been born, as if he'd never existed.

Alright, let's try this thought experiment as we work our way through the six charges of the indictment against the U.S.. First, I think it's best to concede that great powers, and some not so great, not only claim to be exceptional, but often are. Not quite in the way that President Obama proclaimed that every state, like every child, is exceptional. But, rather in the way I've been arguing that what makes a state exceptional is its unique constitutional ethos. The way it deploys sovereignty to achieve legitimacy in the eyes of its own people. That doesn't make this state, or any other state, particularly virtuous, or even successful. But, constitutional institutions do shape the virtue of our citizens. And they can accelerate or destroy their success. It doesn't say very much at all about what is worthwhile, but I believe that our greatest legacy isn't the hamburger, or the Corvette, or Jazz, or baseball. That when this civilization, like all others, has perished, our greatest legacy will be that we were the first to put a state under law.

That we have sometimes failed to live up to that legacy just means that we're fallible, that we're human. But, the self-criticism that points out our flaws is actually a necessary part of the system. Second, it's perfectly true that by purchasing Louisiana, by fighting countless Indian wars against the native population, by spreading the American political culture westward, we created an empire of our island continent. But, would that continent have fared better if we'd never been born? If Texas had remained under the dictator Santa Anna? If the bucolic, but ruthless, and sometimes savage cultures of the Native American tribes had fought their own [inaudible 00:24:06] campaigns of ethnic cleansing against each other, as they had done for centuries before the colonists came. The strategic bombing campaign against Germany and Japan played a crucial role in the defeat of those fascist dictatorships. Dictatorships, you may remember, that declared war on the United States before we ever entered the war. Would those wars have been won without American participation? Without those campaigns? Would the Nazi war machine and the discredited Japanese fascists militaristic state, have been discredited in the eyes of their own people?

One often hears about the clumsy interventions of the Americans in Central America, in the Philippines. But, shouldn't we also be reminded that Americans liberated France, and Italy. That it was that American bombing campaign against Japan that led to the liberation of China, and Korea. The American occupation of Iraq was a fiasco, but would the world really be safer if Saddam Hussein and his psychopathic sons were still in power in Baghdad? Is it even conceivable that we would have an agreement with Iran to cease production of nuclear weapons, if Saddam was still in power, and by the testimony of his own scientist, were to seek nuclear weapons at the earliest possible moment. U.S. drones and Special Forces may inadvertently kill civilians, you should all know that more French civilians died in the invasion of Normandy, than British and American soldiers combined. But, aren't the number of civilian casualties dramatically reduced by the use of drones, instead of high-altitude bombing? And would the countries that suffer from the predations of terrorists really be better off if the Americans simply ceased to try to cripple those networks?

What about the claim that we're a bunch of hypocrites when we promote human rights and international law? It's true we have refused to sign many treaties that are signed by dictators, but that has been shown, by scholars, to be the result of the fact that we actually enforce the treaties we sign in our domestic courts, and therefore have to very careful about what language we adopt. Whereas, dictators can sign whatever they please, knowing that they are scraps of paper in their judicial systems.

What about landmines? Landmines are useful in defense because they persist, that is, they don't fail when their tactical position is lost. They don't require the presence of troops to maintain fire. It's also why they pose humanitarian problems, because long after the battle is over, they continue to explode when an innocent civilian sets them off. This doesn't have to be the case. Timing mechanisms can be used that cause landmines to be deactivated within as few as a few hours, or as long as 20 or 30 days. The landmines treaty, at the Ottawa Convention of 1997, bans only anti-personnel mines. It says nothing about deactivating mines, and it freely permits all types of anti-vehicular mines. I don't think many people in the public realize that anti-vehicular mines are every bit as dangerous to civilians as anti-personnel mines. Indeed, they kill innocent civilians trying to use roads, they prevent refugees from returning to their homes, they keep humanitarian assistance from getting to them. The public seems to be generally unaware that the landmines treaty only bans one class of explosives, or that the U.S. policy of deploying time-sensitive mines, mines that turn off in a maximum of 30 days, would do far more to reduce civilian casualties.

But, why doesn't the U.S. just stop using landmines altogether? Well, that would mean removing mines from the 38th parallel that separates North and South Korea. It's the only place where the U.S. really deploys mines now. It's a no man's land where a highly unpredictable and dangerous regime has more than one million heavily armed troops. No realistic, conventional force could be protected from such an army, without mines. Would it really be a step towards peace in Korea if we were to remove that barrier? Well, apply the test from It's a Wonderful Life. Suppose the U.S., simply, had never been born. Or that we stopped trying to defend South Korea. Would the Canadians and the Swedes, who've been so critical of our deployment of landmines, would they would willing to deploy troops there now? Would South Korea be content to remain a non-nuclear power? Or Japan? Would that be a safer and more humane world?

When President Johnson overruled the opinion of his advisors and signed the NPT, he may well have hoped that someday the world would be rid of nuclear weapons, that hope is in the treaty. But, would the world be safer, would there be fewer states with nuclear weapons, if the American nuclear deterrent that protects so many other states, was withdrawn? Why do you think that Germany and Japan, two states that had the wealth, the technology, the technocracy, to develop nuclear weapons, and who face the threat that would justify it, why do you think they never did that? It's because the American nuclear deterrent. Imagine it hadn't existed.

The fourth charge of this indictment implies that war crimes and torture are as American as apple pie. It's true that many states resort to torture, Britain and Ireland, France and Algeria, Israel and Palestine, and on scale vastly greater than the Americans. But, I would just note, that these abuses were not exposed by journalists and crusading litigators, but by the U.S. Armed Forces themselves. The charge that drone warfare amounts to an extrajudicial killing, that only misunderstands changes in the nature of warfare. That doesn't even comprehend the constitutional system by which actors, other than courts, play a role in enforcing law and waging war. I found it hard to credit anyone familiar with Woodrow Wilson who believes him to have been seeking an empire in Europe. It's laughable. Of Wilson's anti-imperial 14 points, Clemenceau complained "The good Lord only had 10."

The principle of self-determination with which Wilson was most associated, is an anathema to empires, as his allies realized. Nor do I think it is really germane to the fitness of the American role in World War II to observe the great sufferings and sacrifices of the Soviet Union. Again, let's apply our, suppose we'd never been born test. Is there a military historian alive who believes the Soviet Union could have resisted Germany without American aid, without a second front, without American strategic bombing, without the invasion of Normandy? Of course the U.S. did not win the Cold War by ourselves. But, rather than ask critics who decried the policy in the first place, why not ask the dissidents who were liberated? What did they think? Did they believe the American presence in Europe, if removed, were to cause the wall to come crashing down?

Finally, although it may seem hubristic to call ourselves the indispensable nation, it's not a slur. Indispensable to what? I've tried to give you a number of examples in which American participation, often in the teeth of very powerful domestic politics, has proved decisive for our values. Perhaps the most important question today is, if not the U.S., who would you like to lead the world? The European Union? China? A deadlocked UN Security Council? Or maybe the answer is, you'd like there to be no leader. That we should seek a world that is multipolar. Well, we've tried that. That was the world that brought on both World War I and World War II, because no state was powerful enough to stop those conflicts. Ask yourself, is it just a coincidence that the number of wars in the world, and the number of deaths in battle, and the number of civilians killed, has dramatically declined since the Americans took up their role as leader of the alliance.

I began this essay to you, by discussing the subject of Constitutional Law and now I've strayed into strategy. But, the most threatening, the most insidious attack on the legitimacy of the American state, has to do with the proposed renovations in our own understanding. Twenty years ago, I wrote this, "Law, strategy, and history. Three ancient ideas whose interrelationship was probably clearer to the Ancients than it is to us." Within each subject we expect economic, or political, or sociological causes to account for developments, but we don't seem to appreciate that they depend upon each other. Well, we understand how events in one can affect events in the other. A war is won and international law changes, a war is lost and a new Constitution is imposed. Thus, does strategy change history? The law of the state changes by revolution, and thus brings about conscription, and thus strategy is changed.

What we don't understand is that history is not just the result of wars and famine, and not just the record of events. The perception of cause and effect is history, and it is the distinctive element in the restless, ceaseless dynamic by which strategy and law constantly change each other. Because, we're not made, simply, in history, a sequence of events and culminating effects, we are made out of history. It's the self-portrayal of a society that gives us our identity. Without this self-portrayal, a society cannot establish its rule by law. Without such a self-portrayal, no society can pursue a rational strategy. Without its own history, its self-understanding, no society can have either law or strategy, because it cannot be constituted as an independent political entity.

The theory of American history today seems to be that our national narrative was born in three sins. Slavery, the theft of land from its owners, and genocide. The U.S. has grown, on this story, great by monstrous crimes. We can have no common morality, no common heroes, no common etiquette where our national symbols are concerned. This has real implications for world order and for the U.S. defense of that order. The writer I quoted at the outset put it this way, "The American myth is at a crossroads. We need a new way to understand ourselves. We should admit that our democracy has grown despite the rules of the founders, not because of them. If we were freed of those rules and myths we'd be less eager to use our war machine, and to spend so much of our wealth upon it. Aware of our own sins, we would feel less likely to go abroad."

I think that's right. I think that's exactly right. And, it is what I am so concerned about. I think when we lose the sense of the constitutional structure that protects rights, we're much less likely to go abroad to try to vindicate the rights of others. The question really isn't whether or not our history is unblemished, but what efforts we have made to overcome it. It was not political expediency or just a rhetorical flourish that moved Lincoln to use the phrase, "Four-score and seven years ago" to an audience at Gettysburg. If you count the numbers, that takes us back to 1776. What he had in mind was the passage in the Declaration claiming that it is self-evident that our creator has caused all men to be equal. That no man is another man's sovereign. That statement, by the way, was so disturbing that Katherine the Great of Russia, wrote Frederick the Great of Prussia, that it was going to cause some trouble someday. He wrote back and said don't worry about it.

When people lose confidence, or despise, or are disgusted by their own history, it gives them a kind of national innovation. Maybe that's what the writer I quoted really wants. You may want an aggressive society innovated, as Germany was after World War II. The U.S. created the current world order, the charter of the United Nations, the Bretton Woods international financial system, the North-Atlantic Treaty, not alone, but with allies. And not innovated, but with immense energy, sacrifice, and ingenuity. That won't happen, that couldn't have happened, if we didn't have some common sense of our core, our purposes, our constitutional purposes and ethos. Well, unfortunately, the loss of common ground, even the willingness to engage in debate and discussion with those with whom we disagree, is facilitated by our constitutional system.

Some of you are engineers and physicists, you know what was fission is. Fission happens when the nucleus of an atom splits into smaller nuclei. And it can undergo a chain reaction causing even further fission. In 2004, the writer Bill Bishop described a development in America he called "The Big Sort". It traced the self-segregation of Americans into like-minded, evermore ideologically polarized communities. At the regional level, the sorting has been bi-coastal, with better educated, wealthier, more mobile persons moving to the coastal cities. In most states, this trend has increased and picked up velocity in the last 25 years. The result is that like-minded people are more clustered together, and clustering together seems to make like-minded people more like-minded.

This raises a concern for a constitutional lawyer like me, that it would be possible for far less than two-thirds of the population, but living in two-thirds of the states, to call a Constitutional Convention, as the governor of Texas has proposed. And, it would be possible for three-quarters of the states, 38 states, about the number that President Trump carried, to ratify such a Constitution, or constitutional amendments proposed by this, less than two-thirds of the people, with far less than three-quarters of the population. Whatever the formal consequences of this demographic and political sorting, it is a real threat to our common tradition when states become overwhelmingly representative of any particular group. They freeze, and they begin the reversal of a process that it has taken us one century to accomplish.

Right now, in America, if you rob a bank in Chicago, you're read the same Miranda Rights as if you rob a bank in Commerce, Texas. The struggle of the last more than a century has been to normalize rights throughout the United States, so that in every city in every state, your constitutional rights are the same. But imagine the fissioning process I'm talking about where that began to be reversed. It's already true that some states permit capital punishment, and some states don't. That's unusual among states, usually where most states, by states I mean states like France of Germany or Britain, have a single rule. Imagine that happening with respect to abortion rights, or prayer in school, or voting rights. This kind of reversal would be the beginning of the end, I think, for a common constitutional ethos that would permit us to lead and defend world order.

Sometimes, you can get a pretty good picture of your vulnerabilities by looking at what your enemies think of you. The insight that America's international Achilles heel is our domestic division was clearly identified by Russia. That's why Russian trolls set up the Blacktivist website pretending to be an affiliate of the Black Lives Matter movement. That's why Russia set up a secessionist and Islamophobic Facebook account. Vladimir Putin has no interest in our politics, per se, but he sees the growing divisions in our country as a way of weakening our international role. And I suppose I think he's right. The international order is forged by the most successful domestic order at any one time. This was true in 1555 at Augsburg, 1648 at Westphalia, 1713 at Utrecht, 1815 in Vienna, it's true today. We won't have to worry about defending world order if we are true to ourselves. If you remember that liberalism and republicanism in our Constitution are not at each other's throats. If you can find a common constitutional ethos, then the world order that we have created, I think, will have no trouble being defended.

So, what do I want you to do? I'd like you to recognize there are common threats that beset the world order, climate change, network terror, the proliferation of weapons of mass destruction. I'd like you to remember the things that Americans do well, assimilation, tolerance, ingenuity, technology, deterrence. That these things will continue to help us thrive and help the world to thrive. And, I want to close by going back to John Winthrop's speech to his fellow pilgrims. When he said, "We shall be as a city upon a hill, the eyes of all people shall be upon us." He did not mean that our example would be the marvel of the age, or that the virtue of the immigrants that he addressed would make their enterprise a success. When he said, "the eyes of all the world are upon us" he meant we were expected to fail. We were expected to turn against each other, and the Europeans were expected to say, "I told you so." I can't tell you where this experiment is going. I know it has been a history of strife, and failure, but it has also been a history of triumph. And its legacy, the American Constitutional Ethos, is worthy of our fathers, and I urge you to be worthy of them.