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Thursday, Nov. 08, 2001

There was a single vision that united those who transformed thirteen British colonies into the United States of America. It was a theme repeated over and over by James Madison and many others, including John Adams: "There is danger from all men." Now, that theme is too often forgotten.

Throughout the Constitutional Convention debates, the Framers discussed whom they distrusted, and why. The list was long, indeed limitless.

That lesson was lost during the Clinton presidency with its rosy economy and its freedom from war. For eight years, we were led to believe that this is a land of utopian optimism, that peace could last forever, that the world is our friend, that the Internet could solve our problems and even bring us direct democracy, and that international human rights were the final frontier. We dismantled the military, cut our spy budget, merely wagged our finger at the terrorist acts perpetrated against Americans around the world, and reveled in the infinite possibilities of technology.

Then came September 11.

Barring Military Recruitment on Campus: A Misguided, and Now Illegal Policy

One of the reasons we are less prepared to fight this war than we ought to be lies at the feet of the liberals in the law schools, the Congress, and the Executive Branch who lost touch with the fundamental insight that makes this constitutional democracy work: pragmatic, healthy distrust.

Until human nature is fundamentally altered, we must always be prepared for attack. To be prepared, we need the very best people in the military.

On this side of September 11, it is difficult to believe, but it is true that top-flight law schools like Yale and New York University Law Schools have refused to permit military recruiters from even interviewing their students. The reason cited for the policy is the military's "don't ask, don't tell" policy regarding sexual orientation.

When Congress learned of the law schools' shenanigans, it fought back — passing the Solomon Amendments, which withdraw federal funds from those schools that refuse to permit the military to hire on-campus. The amendments, however, did not end the problem for students who seek a military legal career.

Intimidation of students who want to interview with the military is perpetrated by the American Association of Law Schools' requirement of "amelioration." The Society for American Law Teachers (SALT) has issued a pamphlet purporting to assist law schools in achieving amelioration. As SALT explains, "[f]ollowing the lead of over 150 localities with policies prohibiting sexual orientation discrimination" (and ignoring the thousands that do not), the AALS mandated that law schools bar from on-campus interviews any organization that discriminates on the basis of sexual orientation.

With the usual fine dexterity of such groups, the AALS and SALT have lumped the American military in the same category as private employers who engage in such discrimination, declaring both equally off-limits–as though the need for a strong national defense has no more gravity or moment than the need for yet another mid-size lawfirm serving business clients.

A Guide to "Ameliorating" Military Interviewing

Taking this reasoning to its logical and silly end, SALT recently — after September 11 — circulated a brochure telling law schools how to "ameliorate" the evil presence of military interviewers. Law schools are told they should do the following at the same time military interviewers are interviewing:

  1. Schedule speakers on rights against discrimination, including sexual orientation.

    This assumes indoctrination is the role of the law school, not education on issues of pressing concern.

  2. Sponsor "teach-ins" to educate people about the detrimental effects of sexual discrimination.

    The ivory tower's walls apparently are so thick that a boatload of law professors thinks we are still in the 70s.

  3. Hold special placement events for "sexual minorities."

  4. Make sure no school resources are employed to "facilitate" military interviews.

    Translation: Be sure that you are not responsible for placing any of your students in important positions of government service, unless, of course, they are providing free legal aid to the poor.

  5. Seek out television, radio, and print opportunities to preach the message of nondiscrimination.

    Assuming wrongly that any law professor avoids the limelight if he or she can just get it focused on him or her.

  6. "Take every opportunity to provide active institutional support in overturning the military's policy. . . ."

If you thought law schools were places where people are supposed to hold differing views, read my column last spring on the Federalist Society and welcome to reality.

The System in Practice at NYU Law School

I saw firsthand last spring how this system operated at New York University School of Law.

Long before the military arrived, anonymous notices were posted all over the school telling students they should not interview with the military because it perpetrates human rights violations (meaning that the author did not agree with the "don't ask, don't tell" policy).

Tables and bullhorns were set out for the protesters in front of the entrance to the building housing the interview rooms. I watched in shock from my office window as students who were trying to serve their country were heckled by maniacs yelling in their faces, pushing them, and attempting to block their entrance.

With the usual liberal attitude of "my view is THE view," no quarter was given for the religious or conscientious believer who might view homosexuality as a forbidden practice, and therefore would not find the military's position offensive or immoral.

These liberal protesters were every bit as despicable as the anti-abortion protesters who have prompted communities to create zones around abortion clinics. Liberal or conservative, extremists infringe on others' civil rights.

Some of the best and the brightest law school students in the country have been told they must choose (a) homosexual rights over (b) a first-rate military staffed by first-rate people. Talk about putting a personal agenda ahead of national need.

The Law Schools' Folly, and the CIA's Too

But the law schools hardly stand alone on this score. The now-infamous 1995 CIA counterintelligence guidelines that prohibited hiring foreign intelligence informants who had been involved in human rights violations provide yet another example.

That guideline provision is so incredibly naïve as to be embarrassing to anyone who claims to be an adult. How in the world were we supposed to keep track of goons, terrorists, and enemies by only talking to the Mother Teresas of this world?

This is a failure of common sense of gargantuan proportions and we are paying the price. We pay not just in our scramble to find information about the Taliban and bin Laden now, but also in trying to figure out why we did not put the pieces of the terrorism puzzle together before Sept. 11.

Inevitable Limits on Wartime Rights

Of course, this is not to defend the most egregious of violations, including the Japanese internment camps and the McCarthyites. Rather, it is to point out that the Constitution has none of the rigidity the liberals would ascribe to it. Instead, it has the necessary flexibility to enable us to win this and future wars and to nevertheless remain a free society.

One can only hope that when peacetime approaches again, we can remember as a people that distrust is our best defense. We will always need a strong military, to ensure our peace as well as to fight our wars.

Our miraculous, pragmatic Constitution, adaptable to both war and peace, is anti-utopia. It is our own best weapon if we will just hearken back to its Framers instead of our contemporary pied pipers.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. Her e-mail address is

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