an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
During the heyday of the late, unlamented Bush Administration, I wrote a number of posts suggesting the value of reading Carl Schmitt, the brilliant political and legal theorist of Weimar Germany (who ended up supporting Hitler in the '30s). In The Crisis of Parliamentary Democracy, written in 1923, he argued, among other things, that Parliament was incapable of functioning because of the nature of the German party system. There was no serious sense in which Parliament was a forum for "deliberation," which requires, for example, that people with opposing views actually listen seriously to one another and possibly even be influenced by reason-based arguments from their opponents. Instead, if parliamentarians spoke at all, they really were speaking to their base outside the halls of Parliament and trying to rev them up for the near-warfare among the central parties. Since no one party had control of Parliament, thanks to the system of proportional representation, this meant the frequent invocation of Article 48 of the Weimar Constitution, which effectively transferred decisionmaking power to the German President: "If public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153."
Giorgio Agamben has noted that there were 250 invocations of Article 48 during the 1920's, all on grounds of "economic emergency." Obviously, this didn't involve "the assistance of the armed forces." It was enough that the President of the Reich ws empowered to take "measures necessary" or the "restoration of public security." It would be a piece of cake for the Reich President to justify, especially given the presence of Section 4 of the Fourteenth Amendment, a fiat decree. Rightly or wrongly (I think this is an open question), our law-abiding President has rejected this and appears willing to take us over the cliff, unless he can get the House Republicans to accept his all-but-unconditional-surrender.
The preferred Obama alternative seems to be a "grand bargain" that is basically negotiated by the President and the Speaker, with practically no one else participating until the "grand bargain" is announced, and at that point the role of congressional Democrats and Republicans alike is to obey orders and ratify whatever the "grand bargain" is. Whatever process this describes, it sure as hell isn't "democracy," "democratic deliberation," or a "republican form of government." But it does fit a model of how decisions are made in times of emergency.
Is it surprising, then, that in a recent poll of confidence levels in fourteen American institutions, Congress came in dead last? 48% have little or no confidence in Congress, and only 12% have "a great deal/quite a lot." The "presidency" looks far better: 35% have "a great deal/quite a lot," but the bad news is that 36% have "little or none," with the remainder having "some." confidence. The Supreme Court gets 39% "great deal/quite a lot" and "only" 20% "little or none." The first institution to get significant public support, re "confidence," is the police, which has he strong confidence of 56% of those polled; only 13% are at the other end. What is the institution generating most confidence? It's the military: 78% have high confidence levels, and only 3% low.
So do these numbers have an "constitutional" significance? Then Lt-Col. Charles Dunlap, of the US Air Force, wrote a much-discussed essay in 1992 on "The Origins of the American Military Coup of 2012." As I've written before, I don't think this is anywhere close to a "clear and present danger" (though, as I've also written, I suspect the idea would seem more attractive to many if, say, Michelle Bachman or Sarah Palin actually were slated to become Commander-in-Chief of the United States armed forces). But, although I seem to be wrong in an earlier prediction that now former-Gen. Davie Petraeus--who has, of course, gone on to become the head of the C.I.A.--would become the GOP candidate in 2012, I can easily see a strong pro-Petraeus movement in 2016, following "four more years" of absolutely dysfunctional and increasingly chaotic "government" that leads serious people to wonder whether the United States--like California--is "ungovernable" because of a mixture of the pathologies of our political culture and the pathologies of our 1787 Constitution. So we don't get a "coup," but we do get the further militarization of the US Government because that's the only institution today that "We the People" really seem to have confidence in. (And, for what it's worth, I presume that we're talking about the truly "professional military," not someone like John McCain, say, who was a thoroughly mediocre student at Annapolis who got out of the military after his truly admirable heroism as a prisoner of war.)
If the fourteenth amendment justified the president exercising one of the powers reserved to congress, borrowing money, why doesn't it justify him exercising others, such as cutting spending on raising taxes? Obama could invoke the fourteenth amendment and enact the Grand Bargain himself! Or he could just hike the top marginal rate up to 80% until the House GOP cried uncle.
SL's blurb for Posner and Vermeule, The Executive Unbound
"This is a book that will, for many readers, both illuminate and infuriate. It is the most full-throated embrace in recent years of the very important (and always controversial) jurisprudential theories associated with Carl Schmitt, particularly with regard to the accretion of power in the Executive Branch. If their views become widely accepted, American law--or at least the American legal academy--will never be the same again."
Is it not a sign of the Weimarization of American politics that you (and seemingly every reviewer) can't call fascism by its name?
Your arguments concerning the constitution and the senate are similarly academic, focusing on ideas rather than behavior, and from an illusory model of objectivity. Multiparty democracy works when people and their representatives have and recognize divided loyalties to their subgroups and the larger community. Republicans and democrats need to admit the tension between loyalty to party and country, as lawyers divide their loyalty between client and court. Rules cannot mandate maturity. You're forever arguing about changing the rules, as if rules were the cause rather than the result. The republicans are ideologues, but Obama is defending himself more than the country. JB's argument that the expansion of executive authority is a given, license Posner's arguments just as assumptions as to the ubiquity of greed license greed as self-fulfilling prophesy.
"The best lack all conviction" and philosophizing can be fiddle playing.
It is a book that will be for many readers, enlighten and enrage. Throat is the most complete embrace of the past years, the very important (and still controversial) jurisprudential theories related to Carl Schmitt, particularly in relation to the growing power of the executive. If their views are widely accepted, U.S. law - Or at least to the American legal academy - will never be the same.
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For Republicans, the best thing would be for Democrats and President Obama to act on their own to raise the debt ceiling, thereby staving off the negative consequences of default, and allowing Republicans to campaign for the next year and a half against the “out of control spending” of the other party.
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