An Attack on the Separation of Powers

Arthur Silber argues that "liberals" are being hypocritical in criticizing President Bush's abuses of civil liberties now, since they were silent during Clinton's abuses of civil liberties. I think his argument would be stronger if he would substitute "Democrats" for "liberals," since all criticism of Clinton from real liberals was essentially banished from Washington and ignored during the 1990s. (What fueled Ralph Nader's candidacy, after all, if not Clinton's repeated betrayals of liberal principles?)

But I don't want to take issue with the majority of Silber's argument. I just want to highlight a point he grants, then passes over:

I suppose one might argue, and the point is not without some validity, that Bush's attack is worse: Bush seeks to place himself above the law altogether. Clinton only sought to change the law—so that individual rights and privacy were largely destroyed (and would in time be destroyed altogether, if these ideas were carried to their logical conclusion). But the destruction is ultimately the same in the end.

I disagree with that last sentence, and I think Hamilton and Madison might too. I think Bush’s attempt to place himself above the law is so much more dangerous than Clinton’s attempts to dilute civil liberties that it deserves to be placed in another category altogether. Bush has made an attack on the very structure of government.

The distinction is that between our enumerated rights and liberties (mainly as listed in the Bill of Rights, although some are in the body of the Constitution itself—the privilege of habeas corpus, for example, is described in Article I, section 9) and the protection against tyranny that comes from our system of checks and balances. Remember that the Bill of Rights was an Anti-Federalist addition, a compromise to get the Constitution ratified. In fact, Hamilton argued strenuously against the inclusion of a bill of rights in Federalist 84:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Personally, I think this argument is sophistic, and certainly it doesn’t square with Hamilton’s recognition throughout The Federalist that government officials will take whatever power they can, when they can get away with it. But the following objection is not sophistic at all, as it recognizes a debate about the meaning of our enumerated liberties that we continue to have today:

What signifies a declaration, that "the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.

No, to the authors of The Federalist the primary guarantor of liberty was to be the structure of government itself. From Federalist 51 (Madison):

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.
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But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.

In other words, the framers of the Constitution foresaw that of course there would be times when one branch of the government tried to usurp the powers of the others. That is the rotten truth of human nature. Their aim was to give each branch enough power to fight off such attempts. (This is a broader version of Madison’s argument in Federalist 10 about factions—one he returns to later in Federalist 51. I will write more about this in the future.)

Bush has broken the law just to prove he does not need to submit to it. (I am not going to get into the reasons why, for example, his weak justifications for the domestic spying program are crap. Others have done that well.) We will see if our other two branches of government exercise their power to rein him in. I’m not going to hold my breath.

Little to add

Good analysis by Glenn Greenwald of how John Yoo's theory of absolute executive power, now openly embraced by this President in this week's radio address, runs exactly counter to the founding purpose of our government. (Nice template, too.) The only quote from The Federalist I would add to the many excellent ones Greenwald has collected is this, from Federalist 47 (Madison):

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

Constant War Has Fucked Us Up

I meant for these entries to examine the ways Madison and Hamilton were prescient. Instead I find myself starting with an area in which Hamilton was startlingly naïve.

For some time the President has been claiming (and so has his echo chamber) that Congressional Democrats had access to the same intelligence he did when they voted to authorize the use of force in Iraq—and they thought Saddam was a threat too, blah blah. A report from the nonpartisan Congressional Research Service issued yesterday shows that’s not true.

The point here is not that the President is a liar. We all know the President is a liar, except those whose cognitive dissonance won’t allow them to accept the fact. The point is that Congress now allows the President to operate essentially without oversight. From the report:

Perhaps, in part, because of these differing legal views, the executive and legislative branches apparently have not agreed to a set of formal written rules that would govern the sharing and handling of national intelligence. (13) Rather, according to one observer:

The current system is entirely the product of experience, shaped by the needs and concerns of both branches over the last 20 years. While some aspects of current practice appear to have achieved the status of mutually accepted "policy," few represent hard- and-fast rules. "Policy" will give way when it has to.

That’s fucked up. It means the President can do whatever he wants, and tell Congress whatever he feels like. And yes, the fault does lie with Democratic Congressmen as well as Republicans—for so badly abdicating their oversight responsibility.

The Federalist doesn’t deal directly with the issue of launching unnecessary wars of aggression, because at the time the Constitution was drafted the United States was far too weak to consider such a thing. But it does consider, at length, the threat to liberty posed by standing armies in times of peace.

In Federalist 26, Hamilton answers this fear by pointing to Congress’s power of the purse:

The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.
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Schemes to subvert the liberties of a great community REQUIRE TIME to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be persevered in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country?

Apparently so.

I almost don’t blame the President for this one. He believes he should have absolute power. Judicial oversight is just an annoyance to him too. But Congress is supposed to stop him.

The reason I say Hamilton was naïve here is that he seemed to assume that the people would always view the military with suspicion and fear. Yet as he himself wrote in Federalist 8:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
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The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.

Maybe he failed to foresee how effectively or persistently propaganda could make us afraid, how sixty-five years of near-constant menace (the Nazis and Japan, the Communists, and now Al Qaeda) would make this country venerate the military above nearly all other institutions. But it’s where we are now, and it’s a problem.

Update after I thought about this more:
No, Hamilton was just being super-naïve. This country has always venerated its military to some extent. Our first president was a General, after all.

Why The Federalist?

The American Revolution was highly unusual, for a revolution. It was a rebellion of a colony against the metropolis, but one carried out by colonists, not natives. Those who took part in it were relatively well off, and united across a range of economic and social interests—despite which they managed to hang together for a good long while before starting a civil war. And although the rebellion succeeded by enlisting the help of one great power, namely France, to fight another, our ally fell apart before it could demand much of us in return.

Most of all, though, the American Revolution was unusual because it was largely nonideological. The colonists were not fighting for an ism. They fought for “liberty,” yes, but as far as I can tell the concept was vaguely defined.

These facts together gave the framers of the Constitution a relatively free hand and, being Enlightenment rationalists, they sat down with the best models of governance available to them, decided what worked and what didn’t, and tried to build a system that, first and foremost, wouldn’t break. They were not promoting an ideal. More than anything they aimed for resilience, for a government that would not morph into something else: tyranny, oligarchy, a return to monarchy—or a fallen-apart Confederacy, each unit governed by some form of direct democracy.

It is often said that the Framers “didn’t trust the people,” which is supposed to mean, really, “the common people.” I think it is more accurate to say simply that they didn’t trust people. This, above all, is the perspective that has comforted me in reading The Federalist. As I read them, Madison and Hamilton’s views on human nature in this regard are close to my own: people are capable of good, but you can’t trust that most of them will be good most of the time, or even occasionally. You have to assume that most people are rotten most of the time, especially in groups, especially when they can get away with it.

I have needed the comfort. The past five or so years under the Worst President Ever, under a Republican governmental and propaganda machine the likes of which, in its united, shamelessly antidemocratic front, has rarely if ever been seen in a democratic country, have made me need it. I have been comforted by The Federalist because Madison and Hamilton predicted some of the crises I see in our country today, and structured our government to mitigate them.

This is not to say that The Federalist provides an answer to all things, just as the Constitution did not provide an answer for all things. Writing slavery into the body of that document was probably a practical necessity, for example, but also a horrible, horrible evil we have still to live down, 225 years later. But in some things it was remarkably prescient. I plan to write about The Federalist here mainly as a way to organize my own thoughts about the book, but also, should any liberal fellow-traveler happen to read the entries, to offer those same modest comforts to them, and to suggest how Madison and Hamilton might advise us to oppose a juggernaut like the modern Republican Party.