May 7, 2015

The Compass of Sympathy: What Makes Our Ability to See the Humanity of Others Expand and Contract?

by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

Generally speaking, our constitutional history is a story of this expansion ‒ of ever greater inclusion, ever wider empathy.  The arc of the moral universe bends towards justice.  But there is also backsliding.  “My mother raised me to be gallant,” runs the full Biddle quote, “which to her meant protecting one’s people.  I hope to have enlarged the compass of my sympathy.”  Noble sentiments, but uttered in the context of the evacuation and detention of Japanese and Japanese Americans during World War II ‒ one of the worst civil rights violations in our history.

How could such a thing happen?  The most common reason for backsliding is fear, which causes people to constrict the compass of sympathy, to draw the us/them line tighter.  The Japanese-American internment survived Supreme Court review on the theory that while most of the affected people were loyal, the benefits of evacuating them all might reasonably be thought to outweigh the costs.  There was an error in assessing the benefits, of course, since no problem of disloyalty or sabotage existed, but there was also an error in assessing the costs: the error of giving the interests of Japanese-Americans something less than full weight.  That is a failure of empathy, an inability to see other people as alike rather than different.

Understanding the mistakes of the past is one way in which we may hope to avoid repeating them.  Cultivating empathy is another, and how to do this is something psychologists have been studying.  There are few things that have proven to increase empathy under experimental conditions, but reading novels is one.  One might hope, then, that writing a novel about the Japanese-American internment could be a positive thing for civil rights.

That was my hope, anyway, in writing Allegiance.  Allegiance tells the story of the internment from an unusual perspective ‒ that of the insider.  Cash Harrison is in law school when Pearl Harbor is attacked.  He ends up clerking for Justice Hugo Black and later working for Francis Biddle in the Alien Enemy Control Unit of the Department of Justice.  There, a young man who loves his country and trusts his government must decide what to do when all his certainties about the world collapse around him.  As a special bonus for ACS readers, there’s also a shadowy conspiracy involving a villainous group called the Anti-Federalist Society.