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.
…
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.