Tag: republic

Law Professors against “Tyrannophobia”

Over at the American Conservative, I have a review of Eric Posner and Adrian Vermuele’s new book Executive Unbound: After the Madisonian Republic. Funny enough, the working title for my book on presidential power was “Executive Unbound,” but P&V have a very different take on the dangers of concentrating power in the executive (they coin the term “tyrannophobia,” for irrational fear of executive abuse).

From the review’s intro:

The New York Times book editors assigned their review to the Straussian political philosopher Harvey Mansfield, the self-styled expert on “manliness” who’s as rabid a supporter of the imperial presidency as you’re likely to find. In the late Bush era, Mansfield wrote a 3,000-word Wall Street Journal op-ed, “The Case for the Strong Executive,” arguing that defects in the rule of law ‘‘suggest the need for one-man rule.”

Yet even Mansfield blanched at Executive Unbound’s case for unbridled presidential power. He began his review by noting indignantly, “Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard, respectively, offer with somewhat alarming confidence the ‘Weimar and Nazi jurist’ Carl Schmitt as their candidate to succeed James Madison for the honor of theorist of the Constitution.”

Gott im Himmel! A book that embraces a leading “Nazi jurist,” applauds the American presidency’s liberation from law, and is apparently hardcore enough to scare manly Harvey Mansfield? What sort of work is Executive Unbound? A Satanic Bible for worshippers of the strong presidency? The black-metal version of John Yoo?

As I dug into the book—while Tomahawk missiles rained down on Libya in yet another unauthorized presidential war—that’s what I was expecting. But Posner and Vermuele have produced something very different and, quite to my surprise, I liked it.

You can read the rest here.

Somebody Tell Serena Williams

Americans don’t curtsy to foreign monarchs.

Serena, who earned her third title by beating her sister in last year’s final, has tweaked her tournament preparation in anticipation of a visit Thursday to Wimbledon by Queen Elizabeth II.

“I’ve been working on my curtsy,” Serena said. “It’s a little extreme, so I’m going to have to tone it down. I was practicing it this morning.”

This is a republic. We do not recognize distinctions among individuals based on class or birth. We are not subjects of the queen of the England, the queen of the Netherlands, the emperor of Japan, or the king of Saudi Arabia. Therefore we don’t bow or curtsy to foreign heads of state.

Topics:

Citizen Shahzad

Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad.  First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights.  In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.

Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:

“Did they Mirandize him? I know he’s an American citizen but still,” King said.

Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.

From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups.  The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group?   As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime.  If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”

Weekend Links

  • The G.O.P.’s next move on health care: “The challenge for Republicans is not to try to ‘do’ things just like the Democrats but a little less expensively or with a little less bureaucracy, but to present an agenda of personal and economic liberty as a positive alternative… [Republicans] will have to show that this time they are in favor of something positive. It’s called freedom.”

Reading Reality

Today, Politico Arena asks:

“Do they get it?”

My response:

Do the Democrats get it?  A good many of them, like so much of the mainstream media, have long taken their cue from The New York Times editorial page. This morning the Great Gray Lady sallies forth, ideological blinders in place, to pronounce that,  “To our minds, [Tuesday’s result] is not remotely a verdict on Mr. Obama’s presidency, nor does it amount to a national referendum on health care reform.”  Not remotely?  Those Democratic office-holders who continue to sip from that purblind well will soon have plenty of time to do so.

But Republican performance in recent years has hardly inspired.  To their credit, however, Republicans tend to subscribe to principles about government that are closer to the nation’s founding principles – if only they would abide by them.  And so one hopes that, after Tuesday, they will come better to “get it.”

Tuesday Links

  • Gene Healy on today’s election in Massachusetts: “If Republican Scott Brown wins the Massachusetts special election Tuesday, the Bay State will have its first GOP senator since the era when disco was king. And Brown will have the much-derided Tea Party legions to thank.”
  • George W. Obama? “Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.”
  • Podcast: “Our America Initiative” featuring former New Mexico Governor Gary Johnson. Johnson discusses out of control government spending, immigration, the Bush years, the drug war, defense policy and more.

Filibuster Flip-Flops — Again

Today’s question at “Politico Arena”:

“Is the filibuster good or bad for America?”

My response:

The United States is a republic, not a majoritarian democracy. The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution – enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights – is designed to protect liberty by restraining majorities. Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, “We put legislation in the senatorial saucer to cool it.” The Founders didn’t invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn’t be too easy to pass laws, and there’s a good case for requiring more than 51 percent in any vote.

During the Bush years, when Republicans controlled the Senate, Democrats used the filibuster especially to block judicial nominations. Many conservatives and Republicans denounced the use of the filibuster. They complained about “tyranny by the minority” and said “all we are asking for is an up or down vote.” I warned conservatives in 2005, “But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren’t simple majoritarians. They don’t think a ‘democratic vote’ should trump every other consideration….Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won’t walk through it again when a much-wanted policy change is being blocked by a filibuster.”

In another column that year, I noted, “Republicans who once extolled the virtues of divided power and the Senate’s role in slowing down the rush to judgment now demand an end to delays in approving President Bush’s judicial nominees. President Bush says the Democrats’ ‘obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.’ Democrats who now wax eloquent about a ‘rubber stamp of dictatorship’ replacing ‘the rights to dissent, to unlimited debate and to freedom of speech’ in the Senate not too long ago sought to eliminate the filibuster altogether.”

I noted various liberal politicos and journalists who appeared to have flip-flopped on the legitimacy of the filibuster, from Sen. Hillary Clinton to the New York Times editorial page. And my old friend E. J. Dionne, who “groused about the ‘anti-majoritarian filibuster rules’ that were preventing needed action in 1998 but warned in 2005 that ending the filibuster would be ‘a radical departure’ that ‘would be disastrous for minority rights.’” Now, I regret to note, the Democrats are back where they belong, in control of the Senate, the Republicans are once again the obstructionist minority, and E. J. is again denouncing the filibuster: “In a normal democracy, such majorities would work their will, a law would pass, and champagne corks would pop.”

In a democracy, maybe. But not in a constitutional republic. As I wrote back in 2005, “American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive.” And of course, there’s a question about what ought to happen if we were indeed a “normal democracy.” A majority of the Senate wants to pass this bill. But a majority of the public opposes it. Is it “democratic” for representatives to defy the majority of their constituents?

If the filibuster allows the public to find out more about a proposed bill and to make its views known, then it is serving a useful purpose. If it sometimes blocks a bill, then it is also serving a useful purpose. But there aren’t many people in Washington who stick to the same position no matter which party is in power. That’s a good reason to have constitutional and procedural rules that last longer than temporary majorities.