Tuesday, December 17, 2013

Cheer Up, Mr. Rothstein!

Edward Rothstein’s review, in today’s New York Times, of Records of Rights, the new exhibition at the National Archives, reveals yet again how central law is to Americans’ national identity.  Anchoring the exhibition, on permanent loan from the philanthropist David M. Rubenstein, is one of four surviving copies of Magna Carta.  From that medieval artifact, visitors turn to a history of rights in the United States.  They can then pass into our great national reliquary, the Rotunda of the National Archives, with its copies of the Declaration of Independence, Constitution and Bill of Rights. 

Credit: National Archives
Mr. Rothstein expected that the exhibit would show that the United States was “one of the few nations to evolve out of concepts rather than a people or place.”  He hoped that it would show “how ideas of due process grew into ideas of rights and liberty, which, however haltingly or falteringly, made their way into the present.”  Instead, it shows “not how these ideas succeeded despite flaws, but how deeply throughout our history they have failed.”  Mr. Rothstein faults the exhibition for presenting “no context or perspective; only grim struggles and partially won liberties.”  He asks, “What are we left with, as we head up to the Rotunda to see the founding documents?”  The answer, he fears, is that “the United States has been uniquely hypocritical and surpassingly unjust.”

I’ll give myself the treat of viewing the exhibition once I finish grading my exams.  My impression from viewing the on-line version is that the creators of “Records of Rights” got it just about right.  If the exhibition never acknowledged Americans’ recognition of rights, I’d be just as critical as Mr. Rothstein is.  But the on-line version, at least, includes many examples of the constitutional, judicial, legislative and popular recognition of quite fundamental rights. I could detect nothing grudging about the curators’ decision to include, for example, the Fourteenth Amendment, the Civil Rights Act of 1964, Tinker v. Des Moines Independent Community School District, Lawrence v. Texas, or the Americans with Disabilities Act.

Visitors might well enter the Rotunda with a sense that the recognition of rights in America has been imperfect and incomplete.  Can one really argue they shouldn't, especially when the lead story of the same issue of the Times reports on Judge Richard Leon’s ruling that the NSA’s collection of Americans’ phone records “infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment”?

Cheer up, Mr. Rothstein!  As they enter the Rotunda, visitors probably won't be ruminating on the "uniquely hypocritical” history of rights in the United States.  More likely, they'll be thinking that that history is not yet concluded and that they can still have a part in making it.