Friday, July 22, 2011
Looking more like Weimar (in the '20s) every day
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."
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.
But part of the story of Weimar is the left's disconnection and its belief that the right was too "crazy" to govern.
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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