Balkinization: Lindsay Graham, a real joker

Lindsay Graham, a real joker

Sandy Levinson

Maureen Dowd concludes her column in tomorrow's Times with the following:

As Lindsey Graham joked to the witnesses [General Petraus and Ambassador Crocker]about Congress, referring to the talk of the dysfunctional Iraqi government, “You could say we’re dysfunctional and you wouldn’t be wrong.”

First, is Graham basically correct in describing our present government as "dysfunctional"? I clearly believe it is, and not only because of "failures of leadership" and the like, but also because of our grossly deficient constitutional structure. I presume that Graham would not agree with my disagnosis, but that doesn't affect whether he actually believes that a reasonable person could describe the current American government (by which I do not mean simply the Bush Administration) as "dysfunctional." Second, if he does believe this, why is this a "joking" matter? Is this supposed to be a kind of whistling past the graveyard, where we are reminded of our own inevitable mortality and wish to deny it, perhaps by engaging in "gallows humor"?

On another, but related, matter, I am absolutely delighted that Charlie Savage is posting on Balkinization. I fear, also, that he is basically correct in his prognostication about the long term affects of the Cheney-Addington view of executive power. Jack and I, of course, have been writing about the emergence of the "national surveillance state" as a complementary successor to the more straightforward "national security state" of the post-World War II, and part of our argument is that presidents of both parties gladly participated in the rise of this state. Furthermore, I think that Cheney and Addington may be somewhat wily in their very excesses. Duncan Kennedy once described his own role at the Harvard Law School, where he made a variety of seemingly audacious pronouncements, as creating space for other people on the left to appear more "reasonable," since they could always say that they were not so extreme as Kennedy. So one can now score points by taking more "sane" views of executive aggrandizement, as was true in the plurality opinion in Hamdi, for example, which gave a way a lot of, even if not all, the store (which Thomas would have done). And, as Jack Goldsmith forthrightly admits, the brunt of his criticism of his former colleagues is procedural, focusing on their arrogant unilateralism, rather on the substance of their policies. He is calling for greater partnership between President and Congress in passing legislation that many of us would find problematic, either on policy or constitutional (assuming the two can be distinguished) grounds. The opinion in Hamdan, of course, rested on just such a proceduralist argument, and the response was the passage of the MCA by an outstandingly supine Congress. Does anyone have much doubt that a President Clinton (or Obama) would receive full-scale cooperation from a Democratic Congress should she/he seek enhanced presidential power, precisely because they will appear to be so much more moderate than Cheney-Addington in their views of unilateral, basically Schmittian, presidential authority?

Recall that Constitution Day is only six days away. I hope everyone posts with his/her plans for the great occasion.

Posted 11:14 PM by Sandy Levinson [link]

Comments:

Sometimes I think the mercantile survival of the fittest which produces many of our local prominent business people must be an object of ridicule from places in the world which harbor more 'primitive' or atavistic forms of governance which inertially or based on principle persist in fusion of ideology with autocracy; and in a way I have seen Republicans latch onto this latter pernicious form of regression as a way to govern without much constitution, using a wild west surrogate form of rugged individualism, of late. With respect to the former Darwinian method of selecting our regional notables from the business caste, it is small wonder they pursue lucre, influence, and the legerdemain of the elusive account books as their forte when they make a transition to local government, and upward to national government elected office. Intermixed with these elected and appointed mavens of commerce usually are folks of different background, thinkers, rhetoricians; or at least in the past politics lured such lofty idealists to the calling of electoral positions. In fact, politician salaries are nearly as diminutive as are academics, compared to the exalted pay rates to be enjoyed in the upper echelons of business; little wonder politicians seek to supplement salary with perquisites of every innovative stripe. Perhaps it takes the hunger and hope of an era like that which produced our defective constitution centuries ago to yield a salubrious blend of all kinds of people entering politics. Subsequently stereotypes tend to crystalize and bureaucratic ways of proceeding creep in like ossification of what was once young and vigorous. I suppose this image travels to some standoff or dissociated feeling by politicians, less responsiveness to constituents, more malleability admid the influences of the moguls and spokespersons of commerce, exaggerated and conscious donning of the patina of principle as a surrogate for the real vis which can drive truly great leaders. And voters may home in upon their respective burgeoning leisure time in lieu of trying to elicit real responsiveness from their representatives. Party machines craft the perfect dramatis personnae to buffer leadership from the very voters whose input makes the process live. But I sense if some of the new suggestions about voting machines are put into play, there will be vast changes in our country's elected class; imagine an incorruptible pdf of each person's vote instead of a hanging chad.

# posted by

JohnLopresti : 1:56 AM

Re: Constitution Day.

I'm rather perplexed by the fact that the most recent Mayfield case in Oregon (arguments were heard this Monday, Garry Spence was again a pleasure to watch, magnificent courtroom presence) is receiving so little interest. Apparently the sentiment is the guy got his $2M in the settlement from the DoJ, so what does he want now?

Well, first it does not appear they are after money at this point in time. The primary point is that Mayfield has a pretty good chance to force undoing one of the provisions of the Patriot Act. And that would be something given that so little progress been made so far.

For a short explanation what they are after here and a little helpful primer on FISA and the way FISA is used to spy on people foreign and domestic see this.

# posted by

wg : 8:10 AM

Ambassador Crocker has been explaining to Congress that Iraq is engaged in a fundamental federalism debate which they have not resolved in the past six months to meet Congress' political benchmarks. Crocker has further observed to Congress that it took us decades after our founding to resolve this federalism debate. (Actually, it is still going on in the US.)

Given that the Dems and a few GOP have been calling the Iraqi democracy "dysfunctional," for failing to resolve all of their fundamental political questions in six months, it is apparent that Graham could not resist zinging his colleagues in Congress with the same charge.

Indeed, Graham could make that observation about nearly every form of deliberative democratic government. Unless presented with a crisis, democracies rarely move quickly. It takes time to develop consensus in a polity. It takes even longer when your polity is divided politically and the vast majority of the polity does not give a damn about politics as is the case in the US...and maybe Iraq.

I do not see the plodding nature of democracies as a problem. Rather, checking the progress of government is generally a good thing.

# posted by

Bart DePalma : 8:31 AM

Great ... now Lindsey Graham is deliberately pulling Prof. Levinson's chain on national TV.

Imagine the hilarity in Graham's chambers, as staffers surround the computer: "He blogged it! He blogged it!"

# posted by

Anderson : 9:09 AM

Why is Constitution Day a "great occasion" when it's only a celebration of something "grossly deficient"?

# posted by

curtstest : 10:24 AM

Ambassador Crocker has been explaining to Congress that Iraq is engaged in a fundamental federalism debate which they have not resolved in the past six months to meet Congress' political benchmarks. Crocker has further observed to Congress that it took us decades after our founding to resolve this federalism debate.

Bart has correctly identified the salient issue. Are the American people in favor of committing our military to policing the sectarian violence in Iraq for as long as it takes for the "federalism debate" to be settled, even if it takes decades? I hope these hearings are serving a useful purpose in similarly crystallizing the issue for others.

Indeed, given the rampant violence in Iraq as contrasted with our own relatively peaceful experience throughout the American "federalism debate," one might reasonably infer that the rivalries in Iraq run deeper than our own, and thus the Iraqi federalism debate will take more time to resolve than ours did.

I do think it's unfortunate that we didn't have more discussion, prior to the war, regarding the fact that Iraq would need to have a federalism debate before the country would agree to live in peace again, and that the debate might take decades much as our own did. The smart people like Bart, of course, took this as a given all along. It seems the rest of us simply failed to ask.

# posted by

Steve M : 4:00 PM

I presume that "Steve" is joking with regard to his reference to "our own relatively peaceful experience throughout the American "federalism debate.'" One might recall that 2% of the entire US population was killed because of an inability to decide what "federalism" entailed (a right of secession?), and many more lives were lost, into the 1960s, before we can legitimately speak of a "settlement" with regard to federalism and race.

And perhaps Sen. Graham thought that he was indeed joking, that it is obvious (at least to him) that our government is not "dysfunctional" (though one would want to know his metrics for deciding whether we are "functioning" properly). Stll, as Freud (and others) have long pointed out, there is no such thing as a completely innocent joke, especially when speaking in public about highly freighted matters.

# posted by

Sandy Levinson : 6:11 PM

Steve said...

Bart has correctly identified the salient issue. Are the American people in favor of committing our military to policing the sectarian violence in Iraq for as long as it takes for the "federalism debate" to be settled, even if it takes decades?

Hell no. I am one of the few hawks here and I would not agree to this goal.

Our job is to get the Iraqi Army trained, on line and in essential control of the country. The Surge has advanced this goal substantially.

It is not our job to resolve Iraq's political problems. That is for the Iraqi people to decide through the democracy which we provided them. Congress' political benchmarks are at best Ugly Americanism and at worst will push the Iraqis to seek alternative sponsors like Iran.

Complete peace may not come about for some time until the Sunnis accept their diminished political role and there will probably be a measure of terrorism for some years. However, the vast majority of Iraq is generally pacified now and the Surge offensive is clearing and pacifying the Baghdad area and Diyala.

Once the last couple provinces can be handed over to the Iraqis, we can substantially draw down our forces to what Petreus is calling an "overwatch" or support role. However, we better get used to the fact that we will have some forces in Iraq for the foreseeable future. We are engaged in a long war against Islamic fascism just like the Cold War against communism. Containment in this war will require forces in various places across the Middle East.

Indeed, given the rampant violence in Iraq as contrasted with our own relatively peaceful experience throughout the American "federalism debate," one might reasonably infer that the rivalries in Iraq run deeper than our own, and thus the Iraqi federalism debate will take more time to resolve than ours did.

Huh?

Our federalism debate was largely settled in a massive civil war which killed over a million citizens.

In stark contrast, there is no civil war in Iraq. The Sunnis are joining the government and most of the killing is being done by foreign al Qaeda suicide bombings.

# posted by

Bart DePalma : 7:19 PM

I presume that "Steve" is joking with regard to his reference to "our own relatively peaceful experience throughout the American "federalism debate.'"

Certainly he was being sarcastic, but it was my impression that Steve was targeting Crocker's implication that the federalism debates surrounding our founding took decades, rather than dismissing the potential of such debates to lead to mayhem. Certainly they did take decades (centuries) to resolve, but is that really the process to which Crocker referred? Was the gap between, say, 1790 and 1860 rampant with bloodshed and massive depopulation related to federalism debates raging in our political centers? If it wasn't, is it really inappropriate to call that period "relatively peaceful"?

I think the problem is this trope that is propagated by the administration wherein the new Iraqi political leaders are like The Founders (capitalized for effect), and they just need the right time and climate to receive the same results. Unfortunately, that time and climate seems to be the post-revolutionary war period of the United States, so it's an analogy poorly fitted to current conditions in Iraq, and one worthy of as much scorn (humorous or otherwise) as can be heaped upon it.

# posted by

PMS_CC : 7:45 PM

I presume that "Steve" is joking with regard to his reference to "our own relatively peaceful experience throughout the American "federalism debate.'"

I wasn't joking, I was referring to the Articles of Confederation period. I consider our Constitution to have been a peaceful settlement, even though we now know with the benefit of 220 years worth of hindsight that much blood was shed hashing out the unresolved issues.

A political settlement by the Iraqi people today would be a huge victory for one and all - not that it is going to happen - even though such a settlement would surely not foreclose the possibility that 50 or 80 or 100 years from now, there might be violence or a civil war to resolve certain issues. Indeed, I'm not sure there is any country on earth that can make such a guarantee.

In any event, I see now that Bart was not making the point that we need to stay in Iraq to facilitate a political settlement, but was merely seeking to advance the usual fictions about how Iraq is virtually pacified and we're kicking ass, etc. There's surely no point in having that debate for the umpteenth time.

# posted by

Steve M : 1:26 PM

I appreciate Steve's clarification. One should recognize that what made Philadelphia possible (among many other things) was, in no particular order: 1) the absence of Jefferson and John Adams; 2) the absence of any representatives of slaves, free Blacks, women, or American Indians; the remarkable non-transparency of the negotiations in Philadelphia, carried out in what was, to us, unthinkably successful secrecy with no leaks. Compare the circumstances facing those charged with negotiating a constitution in Iraq (or, for that matter, anywhere else in the modern world).

Perhaps the single stupidest comment of the past five years was that of Gen. Garner, the first putative "czar" of the Iraqi transition, who said, upon being questioned about the expectation that the Iraqis would be able to negotiate a new constitution in only several months, that he was basing his confidence on the experience in Philadelphia. The stunning level of ignorance captured in that analogy captures all too much of the mindset that justified going into Iraq in the first place. (It would also have been good, incidentally, if anyone had ever read a single book about the post-1865 "reconstruction" of the ostensibly "defeated" Confederacy. But that is expecting too much of this administration.)

# posted by

Sandy Levinson : 11:24 PM