Due Process in the American Identity

35 Pages Posted: 5 Dec 2012 Last revised: 3 Feb 2013

See all articles by Cassandra Burke Robertson

Cassandra Burke Robertson

Case Western Reserve University School of Law

Date Written: December 1, 2012

Abstract

In the last four years, public opinion polls have found an increasingly high level of public support for the methods applied in the war on terror. A significant majority of the population now expresses support for targeted killing through drone strikes and for the indefinite detention of suspected terrorists at Guantánamo Bay. While there are undoubtedly many dynamics at play in the public’s changing views of national security and due process, this Article examines one piece of the puzzle: how the concept of due process fits within the structure of the American identity.

This Article examines due process and national security through the lens of social psychology, and its approach helps to shed light on how and why public opinion has changed. It opens by contrasting the doctrinal view of due process as a legal principle with an opposing view of due process as an expression of American values, and it concludes that both views can give rise to similar policy choices — but for fundamentally different reasons. The Article then applies two related theories from social psychology to explore how people’s views of due process interact with their national identity to create support for different policy choices. Finally, it argues that separating these strands in the public debate on the war on terror can facilitate the conscious consideration of our national identity. In turn, this explicit recognition of the intertwining of identity and policy can create the opportunity to intentionally shape national identity. In order to do so, however, we must broaden the discussion beyond the legality of national security policies — or even their instrumental value — and move the discussion into an examination of more fundamental questions of who we are as a nation and who we want to be.

Keywords: War on Terror, due process, heightened due process, American values, national identity, social psychology, social identity theory, identity theory, role identity, constitutional law

JEL Classification: K19

Suggested Citation

Robertson, Cassandra Burke, Due Process in the American Identity (December 1, 2012). 64 Ala. L. Rev. 255 (2012); Case Legal Studies Research Paper No. 2012-37. Available at SSRN: https://ssrn.com/abstract=2166884

Cassandra Burke Robertson (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3302 (Phone)

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