Neal A. Maxwell Chair in Political
Theory, Public Policy, and Public
Service, University of Utah
In February the Supreme Court heard U.S. v. Alvarez, the hyper-patriotic Obama Administration’s defense of the Stolen Valor Act of 2005. This piece of superfluous legislation prohibits “fraudulent claims of receipt of military decorations and medals.” Infractions can result in fines, even imprisonment. Sonia Sotomayor appeared to be the only justice to appreciate the law’s patent absurdity. Speaking to Donald B. Verrilli, Jr., Obama’s Solicitor General, Sotomayor remarked: “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one?” Given Sotomayor’s rhetorical question, it might be worthwhile to remove the case from the sphere of first amendment jurisprudence (does the Act represent an undue infringement on speech?). It’s not that we shouldn’t be concerned about another assault by the Obama Administration on the integrity of the Constitution. It’s not that we shouldn’t be concerned about the prospect of another flimsy decision from an activist Supreme Court dominated by right-wing conservatives. It’s that the law itself (and the many inflated defenses of it) might reveal something telling about patriotism and patriotic culture.
The government and veterans organizations insist that violations of the Stolen Valor Act result in “real and significant harm” (Verrilli). Yet they cannot provide any actual evidence of harm, perhaps because it’s not clear what harm might actually mean or look like. It’s almost as if the Act itself is designed (through passage, application, prosecution, and appeal) to bring about a harm that did not previously exist. Here harm can be created if you can convince (enough) people that harm has been inflicted. And you convince them not by showing demonstrable harm, but by deploying the claim of it mantra-like. Insistence works. Sotomayor’s question is thus both astute and obtuse. Astute because it dismantles the government’s position through gentle ridicule, obtuse because the claim made by the government (and veterans organizations) isn’t exactly sincere. It’s something of a lie, which may be precisely its point. The target audiences of patriotic prevarication expect, even demand this kind of insistence, insistence made all the more imperative in the current context by two broken wars, one (Afghanistan) a self-inflicted failure, the other (Iraq) an imperial atrocity. In short, the Stolen Valor Act of 2005 is deployed absent the conditions of possibility of valor. The American military issuing honors in this compromised setting is comparable to a fire department awarding citations for bravery to people who set the very fires they extinguished. What’s more, the government’s claim, taken seriously, would turn macho heroes into hapless victims. Accordingly, the government’s charge can be read as an injunction to citizens regarding patriotic truths. It doesn’t matter if most citizens already imbibe such truths; for a patriotic culture even a single outlier feels intolerable.
False claims about military service and rewards are nothing new. George Washington expressed indignation about valor fraud committed by members of the military and vowed to punish the guilty. Thanks to the Civil War and World War I, false claims became almost commonplace. Congress even passed a law in the first part of the 20th century prohibiting the manufacture, sale, or dress of military medals the government had not officially sanctioned.
Such legislation can be seen as part of a continuing effort in a patriotic culture to install military service as the finest expression of democratic citizenship. No one, to my knowledge, is concerned about the honor or integrity of the football profession when a head coach on the move fabricates experiences or expertise on his résumé to advance his career. Nor do coaches who play by the rules demand special protection to defend their good names and reputations, the latter placed in jeopardy by charlatans. As such, those defending the Stolen Valor Act seem to presume its legitimacy borders on self-evident. It’s worth noting that the usual response to military deceit, public exposure and humiliation, is considered insufficient, even though it presupposes and engenders the very honor and respect advocates of the Act say have been gravely harmed. When the state becomes involved, which turns deception into criminality, the community can be said to have expressed its judgment on the matter. Vigorous enforcement of the Stolen Valor Act can bring about the community whose existence and support it takes for granted.
Xavier Alvarez, a professional liar who ran afoul of the Act when he claimed to be a Marine Corps veteran and Congressional Medal of Honor winner, can hardly be deemed capable of harming the military system of rewards. A small-time California water official, Alvarez has claimed, among other things, to play hockey for the Detroit Red Wings, to have rescued the American Ambassador to Iran during the hostage-taking crisis, and to be married to a Mexican celebrity. Still, the contrast between the silliness of the defendant and the ostensible augustness of the Act may actually enhance it. Of course Alvarez would lay claim to the highest military honors. What better way to elevate his status and standing in the community than by providing himself with a heroic identity previously lacking? In a highly patriotic culture, it makes good sense to claim to be a patriot-hero. Prosecution of Alvarez might seem ludicrous. Yet by making a federal case out of it, you effectively convert a silly spectacle into a problem. It’s an occasion to remind the country that sacrificing for country is the highest form of service and that sacrifice means killing and dying. To enshrine such a perspective and place it beyond challenge may entail, among other things, prosecuting those who do not appreciate its sanctity.
Alvarez’s lie, a form of secular blasphemy, has been judged outrageous. Worse still, he does not embody the proper comportment to military service, which includes but also exceeds due deference, perhaps a dose of awe. That Alvarez could pretend to be, that he could pose as a Congressional Medal of Honor winner proves that he is, well, unpatriotic. He has not internalized and enacted the very ethos that would make such a crime not only unthinkable but also undoable. The only surprise here: fines and imprisonment delimit the punishments available.