Distinguishing “Should” from “Could”

I think one of the most troubling flaws of American society is its inability to distinguish “should” from “could.” To put another way, we seem to have fatal flaw in saying just because you can do something doesn’t mean that you should, and just because you shouldn’t do something doesn’t mean you couldn’t.

Of all people, I thought lawyers would understand this, but I was shocked to learn to the contrary while I was at Rutgers of Law. Back in 2005, the political topic de jour was Democratic minority’s filibustering of President Bush’s judicial nominees. To overcome this gridlock, some in the Republican leadership proposed what was unaffectionately called the “nuclear option,” which would have, in essence, changed the Senate rules to permit a simply majority of Senators to confirm a judicial nominee.

In an e-mail discourse that spammed the whole student body’s inbox–Rutgers’ misguided interpretation of “free speech”–one student suggested that the GOP’s plan was “unconstitutional.” In a moment I couldn’t resist, I pointed out that this was simply wrong because the Constitution didn’t specify what “consent” of the Senate meant. I was greeted by a vindictive personal attack that accused me–and the GOP–of Nixonian political tricks.  Separate and apart from whether I was offended–I was not, for I am a Richard Nixon apologist–the disconnect in the dialogue was rather disappointing. In talking about the Constitution, I was speaking of what could be done. I refrained from making a comment on whether I thought the Republican should do so (I did not, for reasons that become obvious two years later).  My classmates, in invoking politics, were really talking about what should be done. To discuss “unconstitutional” in a discussion of politics conflates the should and the could, yet lawyers, who should know better, couldn’t make the distinction.

The recent Ground Zero mosque controversy reminded me of that moment.   Those who favored building the mosque emphasized, over and over again, freedom of religion. This, though, missed the point because it was a could argument.   There is little doubt that the government cannot prevent the mosque from being built based on its Islamic connection. What was really at issue, though, was a should question: how should a reconstruction of the 9/11 site proceed? Those who objected to the mosque–myself included–focused on the insensitivity of building a mosque at Ground Zero. My objection was on the grounds that there were other factors to consider beyond whether the mosque could be built.

The could-should disconnect is so prevalent in American society that it is ingrained even among the children. Our youths are able to recite the First Amendment’s right to free speech–a knowledge of the could–yet they are incapable of dealing with the grave responsibility of exercising such a right–ability to address the should. This is not entirely surprising since a tenured professor is unable to distinguish the difference between being able to say something and not being shielded from the firestorm that results from it. You’re free to say whatever you wish, but that doesn’t mean there won’t be consequences for the idiotic things you say. After all, the other side has just as much right to call you an idiot as you have a right of being an idiot.

A major step in improving the public discourse is for all Americans to learn the difference between the could and the should.  It won’t be easy.  This country is obsessively focused on rights and law and deeply deficient in exercising responsibility and common sense.  It is a country where the argument that we should do something because the Supreme Law of the Land permits it is unusually persuasive because of the noble ideals articulated in the Constitution.  Yet this argument is intellectually juvenile.  The Constitution, for all of its worthy values, is still a document of law.  As my college professor pointed out, the law only sets the minimum standard of acceptable behavior. I for one hope that our society as a whole is able to achieve something greater than the bare minimum. After all, what drove Enron to be Enron was the belief that the so long as you can do it legally, you should do it if it meant you can make money doing it.

This means that we need to move beyond rights talk, to develop a sense of responsibility, common sense and conscience to go hand in hand with the rights we have been entrusted.  We need to be able to say that the Republicans shouldn’t exercise the nuclear option because what goes around, comes around as it did only two years later.  We must weigh the insensitivity of building a place of worship for the Muslims where Muslims–albeit a few crazy Muslims–crashed two planes.  We must educate our children that freedom of speech is a heavy burden to bear because they are responsible for what they say and no one will protect them–nor are they entitled to protection–from the verbal hostility that may result from their exercise of that right.

All of this requires us to mature.  After all, it is far easier to agree on minimum standards than aspirational values because each one of our sense of responsibility, common sense and morality differs.  But this is a calling that America must answer for such calling comes with being a nation of the free.