Balkinization  

Sunday, November 05, 2006

Two Texts: An Election Eve Meditation

Scott Horton

"It may be that despotizing moralists, in practice blundering, often violate rules of political prudence by taking or proposing decisions too quickly; but experience will gradually set them aright and lead them on to a better course. However, the moralizing politician, by glossing over principles of politics which are opposed to right with the pretext that human nature is not capable of the good as reason prescribes it, only makes reform impossible and perpetuates the violation of law.

"Instead of possessing the practical science they boast of, these politicians have only practices; they flatter the power which is then ruling so as not to be remiss in their private advantage, and they sacrifice the nation and, possibly, the whole world. This is the way of all professional lawyers (not legislators) when they go into politics. Their task is not to reason too nicely about the legislation but to execute the momentary commands on the statute books; consequently, the legal constitution in force at any time is to them the best, but when it is amended from above, this amendment always seems best, too. Thus everything is preserved in its accustomed mechanical order. Their adroitness in fitting into all circumstances gives them the illusion of being able to judge constitutional principles according to concepts of right (not empirically, but a priori). They make a great show of understanding men (which is certainly something to be expected of them, since they have to deal with so many) without understanding man and what can be made of him, for they lack the superior perspective of anthropological observation which is needed for this. If with these ideas they go into civil and international law, as reason prescribes it, they take this step in a spirit of chicanery, for they still follow their accustomed mechanical routine of despotically imposed coercive laws in a field where only concepts of reason can establish a legal compulsion according to the principles of freedom, under which alone a just and durable constitution is possible. In this field the pretended practical man thinks he can solve the problem of establishing such a constitution without the rational idea but solely from the experience he has had with what was previously the most lasting constitutions constitution which in many cases was opposed to the right.

"The maxims which he makes use of (though he does not divulge them) are, roughly speaking, the following sophisms:

"1. Fac et excusa. Seize every favorable opportunity for usurping the right of the state over its own people or over a neighboring people; the justification will be easier and more elegant ex post facto, and the power can be more easily glossed over, especially when the supreme power in the state is also the legislative authority which must be obeyed without argument. It is much more difficult to do the violence when one has first to wait upon the consideration of convincing arguments and to meet them with counterarguments. Boldness itself gives the appearance of inner conviction of the legitimacy of the deed, and the god of success is afterward the best advocate.

"2. Si fecisti, nega. What you have committed, deny that it was your fault--for instance, that you have brought your people to despair and hence to rebellion. Rather assert that it was due to the obstinacy of your subjects; or, if you have conquered a neighboring nation, say that the fault lies in the nature of man, who, if not met by force, can be counted on to make use of it to conquer you.

"3. Divide et impera. That is, if there are certain privileged persons in your nation who have chosen you as their chief (primus inter pares), set them at variance with one another and embroil them with the people. Show the latter visions of greater freedom, and all will soon depend on your untrammeled will. Or if it is foreign states that concern you, it is a pretty safe means to sow discord among them so that, by seeming to protect the weaker, you can conquer them one after another.

"Certainly no one is now the dupe of these political maxims, for they are already universally known. Nor are they blushed at, as if their injustice were too glaring, for great powers blush only at the judgment of other great powers but not at that of the common masses. It is not that they are ashamed of revealing such principles (for all of them are in the same boat with respect to the morality of their maxims); they are ashamed only when these maxims fail, for they still have political honor which cannot be disputed--and this honor is the aggrandizement of their power by whatever means.

"All these twistings and turnings of an immoral doctrine of prudence in leading men from their natural state of war to a state of peace prove at least that men in both their private and their public relationships cannot reject the concept of right or trust themselves openly to establish politics merely on the artifices of prudence. Thus they do not refuse obedience to the concept of public law, which is especially manifest in international law; on the contrary, they give all due honor to it, even when they are inventing a hundred pretenses and subterfuges to escape from it in practice, imputing its authority, as the source and union of all laws, to crafty force.

"Let us put an end to this sophism, if not to the injustice it protects, and force the false representatives of power to confess that they do not plead in favor of the right but in favor of might. This is revealed in the imperious tone they assume as if they themselves could command the right. Let us remove the delusion by which they and others are duped, and discover the supreme principle from which the intention to perpetual peace stems. Let us show that everything evil which stands in its way derives from the fact that the political moralist begins where the moral politician would correctly leave off, and that, since he thus subordinates principles to the end (putting the cart before the horse), he vitiates his own purpose of bringing politics into agreement with morality."

- Immanuel Kant, Zum ewigen Frieden – II. Anhang über die Mißhelligkeit zwischen Moral und Politik (1795) in Sämtliche Werke (Großherzog Wilhelm Ernst ed.), vol. 5, pp. 695-97


"Political realism refuses to identify the moral aspirations of a particular nation with the moral laws that govern the universe. As it distinguishes between truth and opinion, so it distinguishes between truth and idolatry. All nations are tempted--and few have been able to resist the temptation for long--to clothe their own particular aspirations and actions in the moral purposes of the universe. To know that nations are subject to the moral law is one thing, while to pretend to know with certainty what is good and evil in the relations among nations is quite another. There is a world of difference between the belief that all nations stand under the judgment of God, inscrutable to the human mind, and the blasphemous conviction that God is always on one's side and that what one wills oneself cannot fail to be willed by God also.

"The lighthearted equation between a particular nationalism and the counsels of Providence is morally indefensible, for it is that very sin of pride against which the Greek tragedians and the Biblical prophets have warned rulers and ruled. That equation is also politically pernicious, for it is liable to engender the distortion in judgment which, in the blindness of crusading frenzy, destroys nations and civilizations-in the name of moral principle, ideal, or God himself."

- Hans Morgenthau, Politics Among Nations: The Struggle for Power and Peace (New York: Alfred A. Knopf, 1978, pp. 10-11).


In one day, America votes. This election cannot be viewed as a series of individual candidates contesting specific seats, though American tradition counsels such an approach. It must instead be viewed as a referendum on George W. Bush, Dick Cheney and Donald Rumsfeld, the troika who have wielded America's awesome power in a series of historic misadventures. This is what Bush called an "accountability moment." As my friend Andrew Sullivan says, it is an opportunity for an intervention of the sort that social workers counsel for alcoholics and drug addicts. An intervention for those intoxicated with a lust for power. At this juncture it is important to see Bush and his conduct with some rigor and clarity, but also to consider the moral underpinnings of his actions. For this I propose that we look to the great moral philosopher Immanuel Kant, the man whose writings provided the fundamental architecture for the world order that emerged following the Second World War.

Kant welcomes the political moralist, but he warns us ardently of the moralizing politician, a species best viewed with great circumspection. In a fascinating passage of the Appendix on Divergences Between Politics and Morals, Kant gives us some practical tools. When can we distinguish between the two? How can we identify the wolf in sheep's clothing who presents himself on the public stage as a man of morals but in fact is morally corrupt? There is, writes Kant, a three-part test that gives us an unfailing peek at the political scoundrel.

First, does he seek every opportunity to assert the right of the state he controls over its own people and over other peoples? This is a question of aggrandizement of power, but for Kant it must be measured simultaneously – against his own people, and against other states.

Second, does he accept the principle of accountability for his own misdeeds – or does he in fact try to pass off to others every mistake that occurs?

Third, does he rule through the sowing of discord and division? After coming to power, does he identify other potential rivals to power and attack them or set them to battle, one against the other? Is he a "divider" or a "uniter" of his people?

America in its history has known great, mediocre and truly lamentable presidents. But in its entire history, America has had only one leader who clearly passes Kant's three-point test to detect the political scoundrel. His name is George W Bush. Is it even necessary to reherse the test?

First, Bush more than any other leader in the nation's history has asserted an ahistorical theory of presidential power, claiming ascendancy over the other branches of government and the right to act above the law, even in violation of the criminal law. This asserted tyrannical power is aimed both at the American republic, and even more menacingly, at states abroad. The fundamental strictures of skepticism and care are disregarded. The vital role of public debate and discourse as a precursor to use of the awesome war-making powers is corrupted. An Orwellian National Surveillance State is being crafted, the extent of which few in this country appreciate.

Second, Bush's refusal to accept responsibility for his erroneous judgments is now legendary. Hurricane Katrina was a defining moment for most Americans. But in this election, the war in Iraq reflects colossal, tragic misjudgments that have brought ruin and destruction to the Middle East and cost America immense blood and treasure. Yet, even now, Bush lies about the situation, talks about "winning" and "victory" and calls the performance of his Secretary of Defense "fantastic." (Which as Christopher Hitchens notes, it literally is, namely performance based on fantasy rather than reality).

Third, as the New York Times recently observed in an editorial, the historical moniker for Bush is now fixed: he is the Great Divider. No president has consciously worked to vilify his political rivals in quite so disgraceful and destructive a fashion as he has. He has been enabled in this horrifying project by a press which was pliant for six years, and only now shows ambiguous signs of awakening from an extended trance. Too late, perhaps.

Bush can be judged by his words and his conduct. More precisely, his words should be weighed against his conduct, as Hans Morgenthau writes. With some prompting from Greg Djerejian, I include his thoughts here for this proposition. Morgenthau may well be the anti-idealist; the anti-Kant. He is nevertheless a powerful and important thinker. And he too grasps the proper role of morality and the critical need to form careful judgments about those who cloak themselves in moralizing garb. Is his view fundamentally all that different from Kant's? Not on this point.

I fear for my country at this time. I fear for all of us and our world. Many of you may disagree with me. But I ask all to weigh this vote with care. This vote may be your last.

Comments:

Professor Horton: I fear for my country at this time. I fear for all of us and our world. Many of you may disagree with me. But I ask all to weigh this vote with care. This vote may be your last.

I'm usually on the other side of this conversation, trying to sound the alarm for what often seems the end of our valued and honorable way of life. But I try to moderate such thoughts.

If we stipulate that the PNAC powers that be are morally capable of consolidating power into a totaltarian system then it is too late anyway, because stipulating the will (and depravity) to betray the values of the nation, combined with the record of 2000 and 2004 elections, combined with the known Diebold partisanship, combined with the known Diebold security flaws, combined with the complicit media and an electorate so feckless as to be persuaded by statements such as Cheney's constant refrain that to vote Democrat is to vote for terror, well, all of that combined would mean we are too far gone.

We may be. There is an angle of analysis that says we have been too far gone for a long long time. But when we see the kinds of neo-con defection presented in the Vanity Fair article Professor Balkin linked to, when I think of the vast corporate interests which could not continue making profits as usual under a totalitarian regime, then I end up thinking that these are indeed dark and even evil times, but that we will weather them.

Perhaps the peasants on the slopes of Vesuvius had similar hopes as mine. I fear you are right in your assessment, but I tell myself it's premature. Peace.

ps: I can't recommend strongly enough looking into the killfile script for greasemonkey for firefox 2. I noticed on another thread that you are giving a couple of our best known trolls a very fair shot at interaction. At the risk of impertinence, it is the Liberal's greatest mistake, engaging ideological opponents who, rather than seeking legitimate dialectic in service of truth, are, in their own words, enaged in debate to persuade others to their world view. They're two very different criteria sets, with attendant differences in objectives and means, and to my eye the prime source of frustration and wasted effort by liberals is the time and energy wasted on the wrong people. With respect and gratitude, $.02.
 

While you Donkeys would like this to be a referendum, this election is really being turned back into a choice:

Which party has the better plan on the war with Islamic fascism, taxes and your local issues?

The Donkeys who have the best chances of picking up seats are nearly all running as conservative light.

The candidate which most nearly reflects the views of most here is Ned Lamont and he is getting his lunch handed to him in a Deep Blue State by a pro war Donkey.

That is because heavy majorities of the voters support the various exercises of Presidential power which you decry from the NSA spying program to the MSA.

Vote your conscience one way or another, but realize that you have a choice and that choice does not involve Mr. Bush, who ran his last race in 2004.
 

Bart,

I have to partially disagree. There are a fair number of House candidates that are running strongly against the war - and are winning. (I'm not going to take the time to link to info about each one - but I think a few minutes of digging should confirm what I am saying.)

Also, from what I understand, Lieberman is only winning because all (most) of the Republicans are voting for him - I mean he did lose the pimary to Lamont. So, at best you can say is majority of the country does reject the Lamont, "net roots," Democrats, but a majority does also reject Bush.
 

In Appendix II to his Essay on Perpetual Peace Kant gives an even more rock-bottom measure of legitimacy, one that robs Bush's governance of even a figleaf of legitimacy. For Kant the rule could be "immediately recognised, as if by an experiment of the pure reason." He called it "the transcendental formula of Public Right," stated as follows:

"All actions relating to the rights of other men are wrong, if their maxim is not compatible with publicity."

He goes on to say:

"This principle is not to be regarded merely as ethical, and as belonging only to the doctrine of virtue, but it is also to be regarded as juridical and as pertaining to the rights of men. For a maxim cannot be a right maxim which is such that I cannot allow it to be published without thereby at the same time frustrating my own intention, which would necessarily have to be kept entirely secret in order that it might succeed, and which I could not publicly confess to be mine without inevitably arousing thereby the resistance of all men against my purpose. It is clear that this necessary and universal opposition of all against me on self-evident grounds, can arise from nothing else than the injustice which such a maxim threatens to everyone. Further, it is a merely negative maxim, in so far as it only serves as a means of making known what is not right and just towards others. It is like an axiom which is certain without demonstration."

One learns this maxim in law school as the principle of legality. It defines the very form of law. One needn't be a Kantian to grasp it.

How often has Bush flouted it? On how many levels has he failed to confess the regime he has inflicted on us? From how many watchful eyes has he cloaked his machinations? Here are only a few examples off the top. I'm sure any of you could add many more:

1. His warrantless wiretapping program, denied in words, then exposed over his objection.

2. His asserted right to privately determine how detainees will be tortured.

3. His denial of the right of detainees to speak to counsel.

4. His termination of the watchdog on war profiteering, in a provision whose inclusion in an appropriations bill no one can account for.

5. His Vice President's secret formulation of an energy policy.

6. His clampdown on whistleblowers at EPA.

7. His mislabeling of destructive legislation as ameliorative.

8. His executive enactment of rules that are then buried in definitions in the Federal Register where no one even knows to look for them.

9. His exclusion of Democrats from legislative conferences.

The forms of republican government are not just paper-thin. They have been stood on their head and banged again and again into the marbled floors of Washington. Matt Taibbi's "The Worst Congress Ever" (in the current Rolling Stone)shows the excuse for a legislative body that has collaborated in this deformation the likes of which this world has never seen before.

Now we head into an election not knowing which of us will be deemed worthy to vote after a purging of rolls whose dimensions are as yet a secret. Those of us who make the cut will have our votes counted on software whose code neither we are nor any other public agency is permitted to know.

Welcome to a nightmare neither Kant nor Kafka could have dreamed up. Welcome to post-legal America.

It's no longer a question whether this must end. The only question is whether it will.
 

Scott Horton: I fear for my country at this time. I fear for all of us and our world. Many of you may disagree with me. But I ask all to weigh this vote with care. This vote may be your last.

Robert Link :I'm usually on the other side of this conversation, trying to sound the alarm for what often seems the end of our valued and honorable way of life. But I try to moderate such thoughts.

Robert, I read Scott Horton as expressing certain fears -for the country. for all, for the world, without elaborating what he fears fall on them- and warning that this might be the last US election. These concerns, so stated, are very reasonable, in my opinion. He doesn’t make any predictions, one way or the other. That’s reasonable too, because there is no way to predict the things he appears to be worried about. Or if there is we haven’t figured it out yet. (In contrast, specific election outcomes can be predicted, with increasing accuracy.)

Your formula “If we stipulate that... etc., etc.” is interesting but it’s predictive utility hasn’t been verified, nor do we know how to verify it. Thus, with all respect, I cannot take comfort from your projection.

It seems to me that what will happen will be influenced by what has happened already, which is always the case. Obviously, we cannot change the past. We can influence developments by our actions, that is, by politics, which includes election campaigns, but is not limited to them.

For today and tomorrow, we want to deal GOP candidates as crushing a defeat as possible, by GOTV, as always, but also by assuring election integrity. The fact that this integrity battle is taking place at all diminishes the democratic legitimacy of our political system.

After that, we’ll see.

The outcome will be determined by our efforts, and of course those of our adversary. This is always so. What is new, and very bad, is that the character of our political system-whether the US is a constitutional democracy or some inferior form- is a contested issue in this election and for the foreseeable future. This is something I never anticipated.
Stuff happens.
 

O passi graviora, dabit deus his quoque finem. I am confident this will not be our last vote. Bush, bad though he is, will peacefully vacate the White House at the end of his term.

I hope that eventually we will be able to elect a Congress that, at least, understands and respects the principles of classical liberalism. But, if we are not, that's really our own fault.
 

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