An overly long reply

Solomon Grundy posed the following question below:

A sincere question: If the three branches of government "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," then why does the executive branch nominate members of the judicial branch? The framers of the constitution had so much confidence in the wisdom of the elitist Senate that the Senate would seem to be a a more natural choice of nominator (with the House confirming and the president having a veto). Doesn't that seem more consistent with the rest of the structure of the government?

Having 100 people of at least two parties coming to consensus upon a nominee seems less prone to corruption than one potential tyrant choosing his own overseer.

I simply don't know how or why they decided the president should nominate justices. Do you?

First of all, I probably should have quoted the relevant paragraph from Federalist 51 in full.

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. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

Ok, as to the specific question: why should the President nominate judges and not the Senate? The first part of the answer is in Federalist 78:

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

In other words, the Framers saw the appointment of judges as not significantly different from the appointment of all other officers of government, like, say, the Secretary of State. So what did they have to say about the appointment of those officers of government? From Federalist 76 (Hamilton):

It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.
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The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that.'' This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

In other words, when SG says:

Having 100 people of at least two parties coming to consensus upon a nominee seems less prone to corruption than one potential tyrant choosing his own overseer.

Hamilton would disagree pretty strongly, and it’s hard to argue with him that in practice appointments in the Senate would not quickly devolve into horse-trading.

Federalist 76 is also interesting in that it includes this nugget of relevance:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

I mean, sort of, if the nomination is high-profile enough (e.g., Harriet Miers). But clearly not in less visible cases (e.g., Michael “Heckuva Job” Brown).

Why Alito should not be a Supreme Court judge

I did a lot of driving this week, and listened to NPR a lot as I did. Over and over, I heard Republican Senators and Alito himself repeating the following talking point, as part of the Alito hearings and in the cotton-puff "analysis" that followed it:

"Of course the President has to follow the law."

"So long as it's constitutional."

Like most talking points, this sounds almost reasonable, but as with all talking points, it's that last little detail that makes it nuts: so long as it's constitutional. Who decides if it's constitutional? That's the job of the judiciary, right?

What the talking point says is that it is the job of the President to decide whether a law is constitutional until the courts explicitly tell him the opposite. In a limited sense this is often necessary, I'm sure: staff lawyers in every department have to decide if given actions violate the law or the Constitution, and the question isn't always clear-cut. But it is not supposed to be the main purpose of the Executive Branch:

The administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification it is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. [Hamilton: Federalist 72]

When a President does disagree with a law, he has the power to veto it. What he is not supposed to do is sign the law and then declare he plans not to follow its obvious meaning. He is not supposed to evade laws that explicitly require warrants for domestic wiretapping and then make excuses about why he never sought to have those laws changes.

The Constitution's main mechanism for controlling an out-of-control President is our system of checks and balances. That means the legislative and judicial branches have to assert their powers. Even under the most generous definition, that cannot possibly include the confirmation by the legislative branch of a Supreme Court nominee who believes a President can do whatever he wants.

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.