MARSHALL INSTITUTE Blog

Interviewed by Allan Havis

Dr. Lee, many social critics and historians are arguing extensively about the Patriot Act and the shift in the notion of civilian rights. What are your thoughts on the matter?

The USA PATRIOT act was enacted in the aftermath of 9/11 to combat domestic and international terrorism. To an unsuspected eye the phrase “patriot act” may conjure up an image of “love of and devotion to one’s country.” The acronym represents the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” act. The act allows federal law enforcement agencies to bypass normal constitutional restrictions required for search and surveillance, as well as due process safeguards. For instance, the act allows federal law enforcement agents who find anyone suspicious of or connected to, terrorism to bypass a search warrant or probable cause required by the Fourth Amendment and freely engage in electronic eavesdropping and wiretapping, thereby to have unannounced access to personal records such as financial data, medical information, reading habits, and so forth. It is important to note that our Constitution forbids government to engage in “unreasonable search” and defines it as search without warrants and probable cause. The PATRIOT act allows federal law enforcement agencies to bypass this bedrock constitutional principle in the name of national security. The act also gives a blank check to federal law enforcement agencies to arrest a suspect, however tenable or theoretical the ground is, and to detain him or her a very long time without ever bringing a formal charge in a civilian court of law. No one disputes that national security is of paramount importance to the survival of our nation. But the level of “threat,” real or perceived, and the evidence of suspicion must be carefully defined, and the need for bypassing the constitutionally required due process must be monitored and supervised by courts. Theoretically, unsupervised law enforcement action violates the check and balance principle and leads to what James Madison called a tyranny. The PATRIOT act is not without restrictions in terms of its life span and guidelines. But it certainly walks on a dangerous terrain.

Let me digress for a moment. The PATRIOT act is not the first statute in which Congress allowed the Executive Branch to circumvent constitutional due process. The Alien and Sedition act of 1798, the Sedition Act of 1913, the suspension of the writ of habeas corpus and the Internment Program during WWII are the incidences in which Congress curtailed freedom and civil liberties and the Supreme Court has reluctantly gone along with such curtailments owing to national exigencies. If this practice becomes routine without judicial scrutiny, the possibility is real that sooner or later freedoms and civil liberties we, as a free nation, cherish diminish to a shrinking violet. We have seen it during the Joe McCarthy era in the early years of the Cold War. It is of utmost importance that Congress revisit the necessity of such law and terminate it as quickly and prudently as possible, and that the Court exercises a strict judicial scrutiny on its constitutionality. It is an elementary knowledge that human organizations, whether they are a military unit, police, schools, or private firms, are blunt instruments that can cause a great deal of collateral damages while carrying out their job duties. It has already been reported that under the authority of the PATRIOT act the FBI mistakenly has been wire-tapping many individuals and businesses without credible suspicion. Without belaboring on this predicament, I would like to cite the eloquent warning of the late Justice Thurgood Marshall who said, “History teaches that grave threats to liberty often come in times of emergency, when constitutional rights seen too extravagant to endure. The World War II relocation cases, and the Red Scare and McCarthy-era internal subversion cases are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.”

Many years ago, I believe there was a national survey about the U.S. Bill of Rights. The study found a large segment of the American public at odds with the Bill of Rights. How does that strike you?

Although I haven’t read this particular study—I think there have been many surveys on it in the past—I am not surprised that some segment of our society are at odds with the way the Supreme Court interprets certain provisions. For one thing, even Congress in 1990 did not support the Court’s 1989 decision on the problem of burning U.S. flags and condemned it by enacting a statute criminalizing the flag burning. In the same year, though, the Court invalidated the flag criminalizing statute.

Abortion, for instance, is a continuing controversy ever since Roe v. Wade in 1973. As far as the public is concerned, the opinion is split between pro-choice and pro-life. More fundamentally, however, disagreement is over whether the Due Process Clause of the Fourteenth Amendment protects a woman who aborts an unwanted fetus for reason. As late as 1989, the Court, in a narrow majority, reaffirmed the holding of Roe v. Wade. But the social forces to derail Roe v. Wade are formidable. It is possible that the integrity of the Roe decision may fatally erode if, for instance, a conservative juror replaces the aging Justice Stevenson. The Court dynamics is bound to change drastically. If we take the opinions of the Supreme Court as “public reason,” it is not difficult to see that public reason does change over time with respect to what the Bill of Rights means and how it applies. Obviously, change is welcome when it expands on human freedoms and promotes equal citizenship and welfare. But if change were to retreat from humanity and bow to a particular interest, we must resist.

Going back to the question, I don’t think that the American public, even a small segment of it, is abandoning the Bill of Rights. But they are often at odds with a particular interpretation given by the Court. This is another way of saying that people agree on generalities but they disagree on their particulars as these particulars affect them directly.

What is your view on American citizenship, equality and tolerance in 2007?

We, as a society, have come a long way to be where we are today, but we still have a long way to go if we are to realize the ideals of equal citizenship. The adoption of the Fourteenth Amendment of equal citizenship in 1868, Brown v. Board of Education in 1954, and the Civil Rights Act of 1964 represent the shining milestones towards the realization of the American dream of equal citizenship. But the law in the book is not the same as the law in practice. To bring equal citizenship to it full realization not only must the laws be implemented faithfully, but society must genuinely accept it and exercise tolerance. If, instead, the members of society do not fully accept it but try to circumvent it by sleigh of hand, they can certainly vitiate it. Jim Crow laws were an example. From this perspective, we still have a long march ahead of us. We have seen enough of legal and technical quagmire in the enforcement process of the Fourteenth Amendment, criminal justice, equal educational opportunity, equal employment opportunity, and affirmative action.

The American jurisprudence underpinning equal citizenship is the idea of “color-blind” society. All seem to agree that the ultimate goal is a color-blind society, but people are in disagreement over the means by which to get there. The historically underprivileged, for instance, argues that given the history of societal, race-based discrimination, we must be “color conscious” until we find the affirmative, ameliorative measures no longer necessary. The privileged, on the other hand, insist that the idea of affirmative action is antithetical to the principle of equal citizenship. Unless we abandon the idea of color consciousness, we will never be able to get to the color-blind society. Recent Supreme Court decisions on affirmative action, California’s Proposition 209, race profiling in law enforcement, and treatment of American-born children of illegal immigrants are some of the thorny examples of which tolerance and patience are in short supply.

That said, I believe that fundamental change has been set in motion in the contemporary American culture that embraces diversity as a core American value and in the culture that condemns race and gender based discrimination in whatever form as evil. Even those who are adamantly opposed to affirmative action do condemn discrimination on the basis of race, ethnicity, sex, and national origin as evil. American people today are extremely conscious and careful about the language that they use in speech and writing lest they should evoke the closet feelings of racial and cultural prejudice.

Unfortunately, though, I cannot say that the same degree of tolerance is extended today to homosexuals and same-sex couples. This is another huge challenge to American civilization.

In your last publication, what was your key focus and would you adjust that focus today?

My most recent book was titled “A Reasonable Public Servant.” It came out in the fall of 2005. The book focused on the constitutional standards that govern public servants in the United States. The Constitution, as the Supreme Court sees it, requires that the public servant perform public duties efficiently and vigorously, yet in a manner that comports with civil rights and liberties guaranteed by the Bill of Rights. Classical theory of bureaucracy portrays a government bureaucrat as one who efficiently carries out executive function pursuant to utilitarian objectives. A reasonable bureaucrat under this classical formulation is pictured as a machine devoid of moral and ethnical concerns. If there is an ethical principle in this classical formulation, it is the principle of efficiency. In contrast, the constitutional theory of a reasonable public servant as I have formulated in my book which draws from Supreme Court opinions discards this instrumentalism and subordinates it to the protection of individual constitutional rights.

This shift is not a matter of emphasis but a powerful constitutional mandate. And this mandate is clothed with the common law liabilities regime under which a public servant who fails to perform his or her duties constitutionally is exposed to personal liability in the form of monetary damages. This liability regime creates a structural incentive for public servants to be knowledgeable about constitutional law understand and apply it to the area of their respective competency. Thus, a constitutionally reasonable law enforcement official must understand what society expects him or her to be knowledgeable about the law being enforced, observe the rules of conduct prescribed, uphold the Constitution as pledged, and exercise prudence under all circumstances.

Obviously, the areas of constitutional law standards for public servants are vast. No one expects that a public official is knowledgeable of all constitutional requirements. The notion of reasonableness suggests that a public official must be knowledgeable of the core constitutional requirements within the scope of their job duties. The book elucidated the clearly established constitutional rights and obligations of the public servants in several areas, including freedom of speech, due process, liberty and privacy, equal protection and affirmative action, and other statutory civil rights.

Do I want to make adjustment of the book’s focus? Not on substance. I believe that the constitutional theory of accountability has a definite place in a constitutional democracy. I should point out, however, that the narrative of the “reasonable public servant” that I have developed in the book was focused on the cases in American democracy. As I am learning from comments from scholars overseas, the theory of a reasonable public servant is equally applicable to other constitutional democracies. In the revision which I am contemplating I would like to broaden the perspective by including cases in other constitutional democracies. After all, the concept of a reasonable person has no national boundaries.

Do UCSD and other research institutions along the Mexican/US border address the immigration question adequately?

I must confess that I have not yet caught up with the state of research on immigration issues at UCSD and in the San Diego area. Issues on illegal immigration are truly complex as they have far reaching dimensions in the economy, society, and law. My main concern at this point is about the human rights dimension. One prominent constitutional concern is about the status of children of illegal immigrants born in the United States. The Fourteenth Amendment declares that all persons born or naturalized in the United States are citizens of the United States and of the state wherein they reside. It also declares that no state shall deprive “any person” of life, liberty, or property without due process; nor deny to any person the equal protection of the laws. The phrase “any person” is literally any person. The immigration law today does not protect the constitutional rights of children born from their illegal immigrant parents. When illegal immigrants are deported to their home country, many leave their children behind in the United States. The immigration law works in a way to deprive these children of their right to be raised by their natural parents. In other words, these “deserted” children are deprived of their liberty without due process. I would like to find out the extent of this abject deprivation with which these unfortunate children experience and what alternatives exist under the Fourteenth Amendment.

How would you identify yourself culturally and/or politically having spent a long time in Iowa and now in California?

Great question! As you know, I am originally from South Korea. I have lived most of my youthful life in the United States, first in California, later in Colorado, then in Iowa, and now back in California. In the Midwest, especially in Iowa, the dominant majority is white, most being the descendants of Northern Europe. People of non-European ancestry are a small minority. When I often visited small rural towns nearby, only 10 or 20 miles from where I lived, people always asked me where I came from, assuming that I was a foreigner. You know, the skin color still creates a powerful impression on people in the lily white rural Midwest. Of course, the people who knew me personally did never doubt that I had the same red blood as they did. But to the white folks in small towns I was a foreigner at their first impression so I used to give them more than one sentence answer. This was tiresome at times, but I never thought that their questions were ill natured. And because I had to give them more than one sentence answer, we often ended up having many interesting conversations and becoming lasting friends. These encounters made me conscious of my ethnic identity, but I also found it as my personal asset. I could share my cultural perspective with my colleagues, friends, and students, sharpened my inquiry into the mainstream values, and found my rightful place in America.

Back in California, my experience is shockingly different. California in general and UCSD in particular look like a different America, a mosaic of different colors. When I walk in my classroom, I am part of this mosaic and get easily blended in the crowd. I appreciate the diversity of this mosaic environment, which offers me a greater freedom of sharing my ethnic background, my personal experience, my worldview, and my connectedness to my students, whether they are white, African American, Hispanic, Native American, or Asian American. When I walk in the Marshall College Cafeteria, my students are lighted up to see me and say, Hi Professor Lee. I love it, and I whisper, you are making my day!