Tag: rule of law

A Government of Laws, Not Men

In the government of this commonwealth… the executive shall never exercise the legislative [or] judicial powers… to the end it may be a government of laws and not of men. – The Constitution of Massachusetts, 1780, drafted by John Adams, Samuel Adams, and James Bowdoin

In contrast, consider today’s news:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Americans, this is what arbitrary government looks like. As a simple matter of fact, even George III was never this arbitrary. Even he didn’t make individual colonists’ lives depend merely on an act of his own will.

Indeed, if I wanted a perfect example of what a government of men, not laws, looked like, I could just glance at the newspapers today and see what our government is doing right at this moment.

Do not respond that this power will only be used wisely and sparingly. Doing so just admits my basic point, namely that we now depend purely on the wisdom and restraint of our individual leaders. We depend on their wisdom and restraint – to check their own worst impulses. All power, both for and against, is contained in one individual. No legal processes, and no guarantees, separate us from them. And the stakes are life or death.

Likewise, do not respond that this power will only be used against very bad people. Again, doing so just admits that we now depend on an unreviewable judgment of character, not on a legal system with formal procedures and safeguards. Even in the dark days of the Cold War – even during the Revolution itself – we never ceded so much power to so few.

To those who think our leaders’ prudence is a sufficient check on their own power, consider this. Let’s both grant that Barack Obama is basically a decent, well-meaning guy (apart from the fact that a decent, well-meaning guy would never want a power like this). If he’s a decent guy, then perhaps he’ll use his newly claimed power wisely, insofar as such an atrocious power can be used wisely. But on the other hand, if I were truly evil, and if I wanted to assassinate with impunity all the people I hated… Suddenly now I’d be very interested in running for president.

Glenn Greenwald has a lot more on the issue, including evidence that Barack Obama was apparently against this power… before he was for it.

Constitution, Schmonstitution — The Law Is What I Say It Is

The health care debate has illuminated how little regard many members of Congress have for the U.S. Constitution.

First, Rep. Alcee Hastings (D-FL) said, “There ain’t no rules here… When the deal goes down … we make ‘em up as we go along.

Then, House Judiciary Committee chairman John Conyers (D-MI) claimed that the Constitution’s non-existent “Good and Welfare clause” grants Congress the power to compel Americans to purchase health insurance.

Now, Rep. Phil Hare (D-IL) admits he doesn’t really care whether the Constitution grants Congress that power:

Off-camera: Where in the Constitution…

Rep. Hare: I don’t worry about the Constitution on this, to be honest.

Off-camera: [Laughter.] Jackpot, brother.

Rep. Hare: What I care more about — I care more about the people that are dying every day that don’t have health insurance.

Off-camera: You care more about that than the U.S. Constitution that you swore to uphold!

Rep. Hare: I believe that it says we have the right to life, liberty, and the pursuit of happiness.  Now you tell me…

Off-camera: That’s the Declaration of Independence.

Rep. Hare: It doesn’t matter to me. Either one…

[Lots of childish sniping.]

Off-camera: Where in the Constitution does it give you the authority to…

Rep. Hare: I don’t know.  I don’t know.

Off-camera: That’s what I thought.

Of course, that doesn’t really capture how annoying both the congressman and his interrogators are.  So here’s the video:

Rep. Hare is channeling Chicken Little: because the sky is falling, we don’t have time to worry about the Constitution’s restraints on congressional power.  We all know how that story ends.  Indeed, true to the fable, there’s no convincing evidence that Rep. Hare’s solution would save the lives he thinks it would save, and it could even cost lives in the long run.  (Fun fact: Wikipedia reports that in early versions of the fable, Chicken Little is actually a hare.)

In addition to brushing up on their Chicken Little, Rep. Hare and his colleagues might want to rent A Man for All Seasons to remind themselves why it’s important to pay attention to what the law actually says:

Sir Thomas More: What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

Madeleine Albright’s Confusion

Former secretary of state Madeleine K. Albright writes in Parade magazine that 20 years after the Berlin Wall, “We Must Keep Freedom Alive.” A commendable sentiment, but the article is a bit confused, notably in that it seems to use “freedom” and “democracy” interchangeably. But as Fareed Zakaria and Tom Palmer, among others, have demonstrated, they’re not the same thing. Freedom is the right and ability of individuals to make the important decisions about their lives. Democracy – especially constitutional democracy, with separation of powers, the rule of law, and constraints on government – can be the most effective way to protect liberty. But democracy isn’t liberty, and we shouldn’t confuse the relationship.

Albright writes:

democracy is a prerequisite to economic growth.

That seems clearly, spectacularly wrong. Consider some historical cases of great economic growth: Hong Kong, Singapore, and Taiwan grew rapidly in recent decades without being democracies. (And I would say that that growth led to Taiwan’s becoming a democracy.) Beyond that, look at the United States and Great Britain during the unprecedented growth of the 19th century; neither was a democracy by modern standards. And of course China has been experiencing rapid growth in the past 30 years without democracy.

But look at Albright’s complete sentence:

In fact, democracy is a prerequisite to economic growth, which only flourishes when minds are encouraged to produce, invent, and explore.

That is a much stronger hypothesis. Indeed economic growth flourishes “when minds are encouraged to produce, invent, and explore.” And the condition in which that happens is actually called freedom, not democracy. So perhaps the problem is just that Albright is using the terms “freedom” and “democracy” loosely. And if by democracy she means the modern Western conception of a system of individual rights, private property, and market exchange protected by a limited constitutional government featuring divided powers, an independent judiciary, and free and independent media, then it would be true that that kind of “democracy” is a solid foundation for economic growth – though not a prerequisite, as the examples above demonstrate.

The relationships between the rule of law, popular participation in government, constraints on government, protection of property, the market economy, and economic growth deserve serious study, and that study should start with conceptual clarity.

Monday Links

  • Nancy Pelosi: “The power of Congress to regulate health care is essentially unlimited.”

Khalid Shaikh Mohammed on Trial

The Council on Foreign Relations’ Steven Simon makes a difficult case, and he makes it well, regarding the Justice Department’s decision to try Khalid Shaikh Mohammed in a civilian court in New York City. I agree with his bottom line:

no trial can provide closure for the traumas of that day. But a judgment in New York, where the greatest suffering was inflicted, will remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.

I say again, this is not an easy case to make, and not just because of the emotions involved. Most people have already made up their mind that 1) KSM is undeserving of such treatment (the same could be said of most mass murderers); 2) that the risks posed to national security by a public trial (including the possibility of an acquittal and the potential disclosure of sensitive information) are not outweighed by the benefits; and 3) that AG Eric Holder made this decision in a haphazard manner, and for all the wrong reasons.

But I think that Simon renders a great service in making Holder’s argument, and, indeed, in making it better than the AG did.

My objectivity can be called into question: Steven has spoken at Cato a few times, and he was and is a participant in our ambitious counterterrorism project. I have enormous respect for his expertise on such matters.  

But I submit that anyone who reads Simon’s op-ed with an open mind must concede at least some of his points, and therefore further conclude that some of the criticisms of the decision are unfair. That does not mean that Simon will ultimately change a lot of minds. One might still conclude that, on balance, the DoJ’s decision was unwise, and that KSM should have been tried by a military tribunal, or merely detained forever. In truth, I was leaning in that direction before I read the piece.

But, on reflection, my confidence in our system of government and in the rule of law leads me to believe that Simon has it right. To the extent that KSM is given a forum for propagandizing on behalf of al Qaeda, the net effect of his rantings will be to remind the entire world that AQ is nothing more than a bunch of self-important, murderous SOBs who kill innocent people.

Nothing more, nothing less.

Chávez Declares Socialism the ‘Kingdom of God’

ChavezA new poll in Venezuela shows that President Hugo Chávez’s approval ratings have fallen from about 60 percent early this year to 46 percent now. Likewise his disapproval ratings have increased from about 30 percent earlier in the year to 46 percent now, and 59 percent of those polled view the country’s situation negatively.

Despite having received upwards of $800 billion in revenues during Chávez’s ten years in power, the government is doing a dismal job of carrying out its proper functions—such as controlling crime or corruption—and public administration in other areas is deteriorating. Chávez recently announced regular cuts in electricity and water provision. (These issues will be discussed in an upcoming Cato forum on Venezuela on November 10.)

As domestic conditions deteriorate, Chávez is apparently feeling more empowered, or at least feels the need to continue his relentless accumulation of power. Today, El Universal, a Venezuelan daily, reports that Chávez has announced that he can expropriate private enterprises at will because he was given that power by the people. Why worry about the rule of law when you have the ability to interpret the will of the people? Chávez’s comments reported today should dispel any doubts that he considers himself a savior to his country:

Every day I’m more of a revolutionary, every day I’m more socialist… I’m going to take Venezuela toward socialism, with the people and the workers…The revolution is not negotiable, socialism is not negotiable, because every day I’m more convinced that socialism is the kingdom of God on earth. That is what Christ came to announce.

The Real Story Behind the Chrysler Bankruptcy

If you worry about the abuse of executive power and declining respect among elected officials for the rule of law, you should watch this eloquent illumination of what really went down in the Chrysler bankruptcy earlier this year. The speaker is Richard Mourdock, Treasurer of the state of Indiana. The setting is a Cato Institute policy forum on October 15 about the “sordid details of the Bush/Obama auto industry intervention.”

As state treasurer, Mourdock is the person responsible for investment decisions concerning Indiana’s state employee pension funds, some of which owned a small share of Chrysler’s $6.9 billion in secured debt and some of which opposed the administration’s offer of $.29 on the dollar for that debt. Though these small secured holders were publicly castigated by President Obama as “unpatriotic” and unwilling to sacrifice for the greater good, Mourdock led the effort to stop the “sale” of Chrysler all the way to the U.S. Supreme Court.

Mourdock’s presentation gives a flavor for the tactics employed by the  Obama administration to “encourage” senior, priority creditors to back off their claims so that chosen parties could take priority—tactics that included backroom reminders that some of those creditors had received and might seek more TARP funding, threats of bringing the full weight and measure of the White House press office to bear down on dissenters, public condemnation, and other forms of arm-twisting most Americans would find unseemly for a U.S. presidential administration.

At the Cato event, Mr. Mourdock was joined by University of Pennsylvania Law School professor and corporate law expert David Skeel, who demonstrated quite clearly that the “sale” of Chrysler, as orchestrated by the Obama administration under cover of Chapter 11 bankruptcy reorganization, was indeed a sham sale. Skeel’s presentation begins at 20:15 of this video.

If you want to have a better sense of what’s going on in Washington (or to affirm your worries), I recommend you watch Mourdock here, listen to Mourdock here, read the Indiana Pensioners’ petition for Writ of Certiorari (appeal to the Supreme Court), and read the Cato Institute’s amicus brief in support of the Indiana pensioners here.