Sunday, January 08, 2006


Sandy Levinson

In the 51st Federalist Paper, James Madison famously wrote, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The mechanism of American “separation of powers” is often said to derive from Madison’s insight. That is, it is not only that Congress, the Executive, and the Judiciary have quite different formal powers; it is also ostensibly true that members of each branch are psychologically disposed to work zealously to preserve the institutional prerogatives of the branch with which they are connected and will therefore be vigilant in trying to prevent incursions from the other branches.

In a brilliant article about two years ago, Darryl Levinson (no relation), now at the Harvard Law School, demonstrated the fallacies in Madison’s assertion. The reason why Madison is profoundly wrong, Levinson suggested, can be summarized in two words: political parties. Madison, of course, was no friend, at least in 1787, of the idea of a political party, which he viewed as a “faction,” defined in Federalist #10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Many writers well before Levinson noted that Madison’s vision (or fantasy) of a country without political parties, organized “factions,” did not survive for even a decade beyond the ratification of the Constitution in 1788. He himself became a major leader of the Democratic-Republican Party organized by Thomas Jefferson and, concomitantly, an opponent of the Federalist Party headed by Alexander Hamilton and John Adams. What was less emphasized is Levinson’s point: The organization of political parties, one of whose main goals is the election of presidents who can implement the party’s agenda, negates any serious notion that the “interest” of the member of Congress is necessarily linked with the “constitutional rights of the place” (Congress) rather than the flourishing of the political party. They view their interests as lying with the achievement of the party’s agenda, which is set, when the party controls the Presidency, by the White House. (There is also the key reality that most members of Congress wish to be re-elected, which may, depending on events of the day, lead them to stronger or weaker identification with the interest of a president of their own party, but this is analytically distinguishable from suddenly developing a great commitment to preserving the prerogatives of Congress. It most likely leads to greater pandering to their constituents.)

We are about to see an important test of Levinson’s hypothesis in the confirmation hearings—and, more to the point, the voting—on Samuel Alito’s nomination to be a member of the United States Supreme Court. In two earlier postings, I have suggested that Alito’s nomination is part of a systematic effort to reinforce the aggrandizement of the institutional powers of the presidency by, in this instance, placing on the Supreme Court someone who is predicted to be a solid vote in favor of presidential prerogative. N.Y.U. Law Professor Noah Feldman has an illuminating article in today’s New York Times Magazine, “Who Can Check the President?” He, too, sees the Bush Administration as devoted to presidential power, and he rightly believes that this grab for power must be checked. He also rightly believes that it is close to futile to look to the courts to stem such aggrandizement, even assuming that the judiciary were inclined to do so. His answer to his own question, therefore, is the Congress. But this assumes, of course, that Madison was in fact correct in suggesting that members of Congress would rebel against a president who threatened the “constitutional rights” of their own “place.”

The modern Republican Party has been notable for bending to the President’s will, save when, as with the ill-fated nomination of Harriet Meirs, social conservatives mobilized to defeat someone viewed, however implausibly, as too “soft on abortion.” Whatever explained that rebellion, it certainly was not linked to a perception that Meirs’ nomination threatened the institutional prerogatives of Congress. But the Alito nomination is different. Since Meirs’s nomination, it has become crystal clear that presidential power is the most important constitutional issue at the present time, and into the foreseeable future. And it is even clearer that Alito, by background and inclination, is a firm believer in presidential power. A long profile in today’s Washington Post notes that a key value from his youth until the present is what many of us would describe as an exaggerated respect for those in authority.

If Madison were correct, then one would predict that Alito’s nomination stood almost no chance. There is no reason for any member of what might be termed a “Madisonian” Congress to vote for Alito. Instead, senators would be looking for someone who had demonstrated great respect for the Congress and seemed likely to take Congress’s side in any potential struggles with the White House. This is, of course, not happening. Instead, Republican members of the Congress, whether “self-hating” (in the way that Jewish critics of Israel are often accused of being “self-hating Jews”) or simply indifferent to reality, seem more than happy to support Alito.

Most observers seem to believe, entering the hearings, that he will be confirmed. The only question that most articles discuss is whether the Democrats will attempt to filibuster the nomination, which would, of course, require the vigorous opposition of at least 41 Democrats. My own view is that they most certainly should try to block this nomination, but that is neither here nor there. The real question is whether the ultimate vote, whether it is to break a filibuster or to vote on the nomination itself, will deviate in any significant sense from straight party membership. Chief Justice Roberts did, of course, receive the votes of exactly half of the Democratic Senators; no Republican voted against him. So the question this time around is whether any Republican, stirred by recent White House assertions of unfettered power with regard to torture or to domestic spying, will break ranks. Or will they all be proud lemmings, willing to support “their President” in spite of his demonstrated contempt for Congress even as a co-equal branch of government? If, as I fear, the answer is the latter, then Madison will be proved, as clearly as is possible, utterly wrong in his speculations about political psychology, and we will all have to contemplate ever harder what remains of our purported commitment to separation of powers and checks and balances.


Good points here. I researched Jefferson on parties recently and wrote that up after proposing in a prior piece that, when balance of power again permits, the Congress improve mechanisms of oversight of secret executive action in such a way as to permit wider disclosure to more members of each house - and at their joint discretion by due process of a suitable law or rule, to the public - without being overly constricted by the executive's classifications, even in times of one-party dominance, for the sake of the Constitution and the American people. We'll have to wait a bit to have a crack at this, and we'll probably have to endure Alito shifting the court to some degree and at some rate until (and unless) the people create a different equilibrium.

I forgot to add, there are a few Senators who sense they'll never make it to the top of the quadrennial pyramid as President and are thus more inclined to uphold the dignity and power of the Senate against the current Caesar. Whether there are at least six such Republican Senators for a nuclear-proof 51-vote majority remains to be seen and will depend on whether Alito is more Bork or Roberts.

I made a similar point here along with suggestiions about how to make the issue of presidential power more salient. Also check it out to see how to recognize if the Senate is going to fight or play dead. Please take a look-see, and leave feedback.

"... and tell 'em Big Mitch sent ya!"


This is the same tired argument that any politician with a spine will project his frustration with the Bush Administration onto Judge Alito. You simply assume that anyone who votes for Alito's confirmation is somehow lacking independence or declining to put the interest of the country ahead of personal interest or party loyalty. Were Judge Alito responsible for the transgressions of the Bush Administration, that would have some merit. Since he's not, it's just as fair to say that anyone who votes for Alito's confirmation does so because he's qualified for the job. Someone with politics opposite yours would say that the real test of politicians' ability to "break ranks" and put the interest of the country ahead of all else lies in the question of how many Democrats will vote for Judge Alito's confirmation, as some did for Judge Roberts's.

This isn't a test of Madison's relevance any more than any other action the Senate takes is a test of Madison's relevance. The same argument could be made about any nominee who has been confirmed along party lines, any legislation that's been passed along party lines, or pretty much any time any politician has put party loyalty above what's best for the country. The way the Congress has dealt with Trent Lott and Tom DeLay, the new Class Action legislation, the filibuster rules, Hurricane Katrina, the PATRIOT act, etc. is as much a test of this idea as anything else.

And it undermines your credibility when you say that Miers was defeated because she was perceived as "soft on abortion." Some of the most forceful criticism of her came from Senator Specter. While some of her detractors viewed her as "soft on abortion," most viewed her as "soft on qualifications" for the job, and no Democrat other than Harry Reid said otherwise.

One way (however far distant the possibility may be) to fix the problem of partisan loyalty overcoming institutional prerogatives is to have more than two major parties. This of course can only occur as a side-effect of changing election methods to something other than plurality first past the post.

Actually I think that there are plenty of Republicans who are jealous about guarding the power of Congress. The thing is that they agree with Alito on so many other things that the checks-and-balances disagreement is way down the list and frankly, kinda academic.

Jack, Jack--you haven't read enough Sandy if you think this is merely academic. The good professor has, with his keen insight, demonstrated conclusively (well, to him) that Sam Alito is the greatest threat to separation of powers since Napoleon.

The evidence for this? Well, there's that extremely cautious memo that he wrote in the Reagan Justice Department that the President might try (though, the memo noted, he might well fail) to influence judicial interpretation by writing a signing statement when signing bills. The memo (in case you did not get this from Sandy's alarmist review of it) did not predict that judges would take such statements seriously, nor did it argue in strong terms that they should, except to say that the executive branch was coequal in signing a law (at least one that would not pass over a veto) and that courts might temper their use of legislative history (a manipulable interpretive instrument) by contributing the president's understanding to the legislative history. This means he hates Congress and loves dictatorship, the only reasons W would have selected such an "obscure" judge in the first place.

Also, if you read about his life history in the Washington Post, you'll find that he likes authority too much. But he only likes, as far as Sandy can tell, Presidential authority--not the judicial authority he will be called upon to exercise, and not the Congressional authority he will be called upon to respect, which respect he has demonstrated frequently in his 15 years of obscure toiling on the 3rd Circuit, where he is unanimously well regarded by his fellow obscure toilers (they are all really, really obscure though so we can forgive Sandy for not realizing that they haven't seen just what a monster Alito is).

Of course, he could just come here and read what professors with endowed chairs and distinguished careers write by way of character assassination, and he will quickly be disabused of respect for authority in the academic sphere. That will be a start.

I should add that I try to be kind and cautious in my posts here at Balkinization--and have had a number of productive exchanges with Marty Lederman, and come to agreement with him on many points.

But I am increasingly disgusted by the frankly irresponsible assertions about Judge Alito that Prof. Levinson keeps spewing forth. There is plenty of derision that I would join in heaping upon the Administrations arguments about Article II powers; but there is just no good reason (which is why Sandy keeps repeating all these bad ones) to assume or imagine that Judge Alito will be supine in the face of such assertions. And now that we are reduced to pop psychological arguments from the WaPo, that should be apparent to all.

This comment has been removed by a blog administrator.

It is argued that Alito is supportive of authority, not just executive authority. This might be true to some extent. But, I think the argument a bit thin.

For instance, I respect those who nominated and strongly support him. These believe he supports a strong executive. His ideological brethren -- those he worked for and organizations he joined/supported -- did as well.

As to support of judicial power. He used said power to support other power -- for instance, no strong use of judicial power to uphold a libertarian view of the 4A. His cases were coded conservative by more than one authority. Finally, said cases did not show a leaning toward supporting congressional power vis-a-vis others ... he is not a blanket statist by any means.

The Alito nomination does not totally go smoothly with the rest of the Professor's post. Nonetheless, it is a bit too optimistic for my tastes to think it is of no relevance.

I have no background on this stuff so I'm curious to know why the Republican side voted for Ginsberg (sp?)/

I am sorry that T. More finds my assertions about Alito "irresponsible." I freely admitted in the postings that there is far less by way of "smoking guns" than would have been the case, say, with Michael Luttig. So I am admittedly trying to connect the dots to explain Alito's nomination. Yes, he's a man of quality, as conventionally measured, but so are many other potential nominees. My surmise is that the judge-pickers were not flailing around for the first person they could think of, but, rather, asked who else on their list was dependably pro-executive (and less of a flashing neon sign in that regard, as with Luttig). I have not seen a scintilla of evidence that truly cuts against this hypothesis. Bob Gordon's posting makes the case as to why one should be suspicious of Alito far more capably than I did.

Today's Washington Post article on Alito portrays a very smart (in every sense) careerist, who has been selected out by his betters for later service to the Cause. One of the things we know about moles is that they are capable of great self-discipline until they are put in place and have the opportunity to carry out their full agenda.

Perhaps I'm wrong about all of this, and Alito will turn out to be another David Souter. But if I had a ranch, I'd bet against it.


T. More is generally a very thoughtful poster, but here I'm afraid he's not living up to his very powerful moniker. Jess Bravin's piece in the Wall Street Journal from Thursday made clear that the concerns that Sandy Levinson presented here initially as speculation were smack on target. Bravin did this largely on the basis of speeches that Alito made in public fora, and the concerns are bolstered by a large number of writings of a non-official character. Sandy's critique is not ad hominem, but it does reflect a very strong concern about the Unitary Executive viewpoint and the shifting of the constitutional balance it assumes. He's right to be concerned, and it would be a fair basis for politicians to object to the Alito nomination - without questioning Alito's personal qualities as a human being or as an intellect.

Thanks for the kind notice. A couple of replies, in order. First, to Prof. Levinson.

To the extent that what you are trying to say is that the Administration would most want out of Judges support for its theories of executive power, I think we would not disagree.

But if that is true then we should be looking for similarities between Alito's jurisprudence and that of Justice Thomas. I'm afraid the Washington Post piece just does not provide that for me; an excessive love of authority might make a judge overfond of precedent, overfond of his own authority, overfond of the Congress. Neither does anything at all in Alito's memo on executive signing statements support a theory of this. I'm a Scalian when it comes to legislative history. But for people who are not, then in any piece of legislation whose history suggests that it would not have survived a veto, it is far from obvious why the signing President's interpretation of the law would be negligible to courts examining legislative history. Certainly to argue that some role for it is worth considering, which at the end of the day is all Alito's memo suggested might be possible from the "pilot" project addressed in the memo, is hardly a frivolous claim. As I say, I'm not sympathetic with the claim, but I think it a stretch way too far to think it puts Alito in Yooville. Your first post on this, as I recall, raised Thomas and threw in a risible attempt to associate Thomas with the theories of Carl Schmitt, and threw in the term "Nazi". It was rhetorically fun: only Thomas adopted an argument similar to...But that's a scurrilous way to argue. I'm certain I could find something you've written that is like an argument employed by a person with awful views. Then I could say "Sandy Levinson adopted an argument curiously like one advanced by David Duke." But why would I do such a thing? If your argument were racist, I could make that claim. But failing that, I would try this transitive property of smearing to make you into David Duke. Fun for college freshman, but it earned them "Fs" when I was teaching intro to philosophy. And if your colleague Bob Gordon wants to make a serious case in this regard, he might start by not repeating the sloppy hysteria of the "strip search" case, as if that case turned in any way on the "strip search" (it manifestly did not) and as if Alito had not expressed his own regret about what the child went through (he did: "I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution.") That case was a close call, and it's just silly to claim that it shows Alito is a supine supporter of executive authority. Such sloppiness is just disconcerting. It was a case about the scope of a warrant, and about the liability of officers for their own reasonable (or unreasonable) interpretation of that warrant. But accurate description would not bolster the case, and would not take advantage of the "salacious" detail of the strip search (which was
not really a strip search by most poeple's sense of the term.)

To what end all this "dot connecting?" If the White House is intent on nominees who will support its claims of authority, it will just keep sending them up. Heck, O'Connor already gave them more than they should have gotten in Hamdi--perhaps keeping her on the court is what they want! So a case against Alito that is mostly a claim about the desires of Bush will certainly apply to any Bush nominee, logically. And if the Alito-specific evidence is his adherence to unitary theories of the executive, his memo about Presidential signing statements, and the like, it's just not much of a case at all. One suspects this is why the posts her about it rely on mentionings of Carl Schmitt and strip searches. Raises the blood pressure and diverts attention.

Finally, Diogenes, I happened to buy that WSJ at the airport on Thursday, and read the Bravin piece. I think, unfortunately, Mr. Bravin (and Bob Gordon above, further weakening his credibility) conflates the "unitary theory" approach with the Yoo approach. Or rather, his headline writer does. Bravin actually notes that "unitarians" as he calls them come in different stripes, and his article does not establish what sort Alito is. They are just not the same. Nothing overly expansive about executive power is entailed by the unitary theory in itself. You may have confused the non-judicial writings in the article with Alito's writings, but they were mostly by others: Yoo, Bybee, and so forth. Indeed, the article refers to not a single Alito writing or speech save the 2000 speech. Much as Bob Gordon's link above (links always look authoritative) is to a series of speeches introduced by Alito. His introduction does not mention the unitary theory, nor does it endorse the views of the panelists. He does endorse Scalia's dissent in Morrison v. Olson, one that history has certainly vindicated. Sorry, but this is to me strange sloppiness for people trying to discover the truth, rather than trying to manufacture it.

The Shifting Sand[y]s of Modern Liberalism...

I have a longish comment on my friend Sandy's post here:

John Rosenberg

T. More, I am fraid, doesn't give Carl Schmitt his due. He was certainly the most important German legal writer between the wars. He joined the Nazis only as an opportunist after they came to power and was kicked out when they discovered that he had urged the president to ban the Nazi party. Politically, Schmitt viewed himself first and foremost as a Catholic and his work stands in the line of Catholic political thinkers that runs from Domat to Bossuet to de Maistre--archconservative thinkers who supported a unitary executive, you might say. But Schmitt is the major legal philosopher of the last century advancing the device of a state of emergency as a means of protecting liberal democracies from their enemies, and this approach has found sudden currency in discussion among thinkers on both the left and the right. The reaction to Schmitt is overblown, I think.
Does Alito belong in Yooville? I've now read several of his speeches and memos, and while I hope that Yoo is standing out there all alone, I'd put Alito pretty close to him. You're right that the Unitary Executive is but a piece of the construct, of course.

I appreciate Diogenes comment about Schmitt. Two things 9at least) are true about Schmitt: First, he is one of the most frighteningly insightful legal theorists of the 20th century and may, alas, be the most insightful about the 21st century, not only with regard to ever expanding executive power (and not only, of course, in the US) but also concerning ever more disreputable legislatures. Second, he did collaborate with the Nazis.

One might recognize that the background for Robert Jackson's magnificent opinion in Youngstown Steel (as well as Dennis, for that matter, an opinion I'm less enamored of) was his having been the lead prosecutor at Nuremberg, where had had the opportunity to cotemplate where untrammelled executive power couuld lead to.

Would T. More be happier if I described Thomas as a Rossiterian (see Rossiter's brilliant, and troublesome, Constitutional Dictatorship) or, for that matter, Lockean (as in Locke's theory of prerogative)? Or, finally, a Hobbesian (who was, not at all coincidentally, one of the major influences on Schmitt)? The fact is that there is a distinguished intellectual tradition that joins all of these political theorists, and it is like whistling past the graveyard to deny the Schmittian (or Lockean or Hobbesian) strains in Thomas's opinion or in John Yoo's theory of executive power.

Incidentally, for what it's worth, I thought Alito scored a clean hit against Leahy's clearly mistaken belief that belief in the "unitary executive" necessary entails untrammelled power. It is amazing that he was not better prepared by his staff in this respect.


Two points in reply: it's always best to deal with arguments on their own terms, first and foremost. If anything Thomas argued showed Nazi sympathies, then it would be fair to rase Schmitt in the fashion in which you did. Let's reread what you in fact wrote:

"Only Clarence Thomas accepted an argument similar to those made by the German (and many would add “Nazi”) legal philosopher Carl Schmitt during the 1920’s and ‘30s that the Chief Executive (or “dictator”) has basically unlimited power during a time of emergency. It is true that he reached this conclusion by reading the 2001 Authorization for the Use of Military Force in as capacious a way as humanly possible."

He read the AUMF (as I would not) in a way that, as you have noted, Cass Sunstein reads it. Do you add "nazi" when describing Cass Sunstein's arguments? Is Carl Schmitt's name offered because you are trying to give us the intellectual lineage (falsely, since his was a statutory justification) of Thomas's arguments, or so you can write "nazi" in the paragraph? So, if you really were just trying to do some careful intellectual spadework and really thought that Schmitt best explained the Thomas/Sunstein reading of AUMF, then I apologize for reading more as sloppy sensationalism.

To that end, my second reply is that, yes, I'd rather you call Thomas Lockean than Schmittean, since it might help you to avoid tossing the term "nazi" about as if it were illuminating in this context.

The basic problem is how one discusses Carl Schmitt, whom I genuinely believe to be an illuminating (and scary) philosopher. I think that all sorts of people, including Sunstein and, on occasion myself, if truth be known, can be viewed within a Schmittian lens inasmuch as he is the primary 20th century analyst of the need for strong assertions of executive power in the face of emergency. It is easier, in many ways, to confine oneself to Locke or, for that matter, Clinton Rossiter, but, as to the latter, the eminence gris, cited in the footnotes but never really discussed in the text, is Schmitt. Was Rossiter a "nazi"? Obviously not. It would be scurilous to suggest that. Was he, like me, influenced by a "nazi philosopher"? I think the answer is yes. I have no idea whether Thomas has ever read Schmitt. I am quite certain that he has studied his Leo Strauss, and Schmitt and Strauss had a complex relationship, both personal and intellectual. The greatest tragedy of Thomas's hearings for Thomas is that he as persuaded by the Justice Department to present himself as a basically thoughtless individual. I think that is demonstrably false.

The problem with this analysis is that it ignores the most important part of Madison's argument. He is not writing from the position of "fantasy" by suggesting that there will be no political parties. On the contrary. He suggests that government behaves like Men. That is, it will act for its own selfish passions and thus has the "natural tendency to absorb individual liberty." It is becasue of this tendency, and the tendency toward faction, that Madison saw the need for a system of checks and balances. it is because parties or "factions" are inevitable that Madision argues for the Constitution. It is the tendency of law professors to attempt to demean and impune the genius of Madison in order to project thier own broken agendas. They know that unless they can deconstruct Madisonian thought, thier own paradigms will not withstand the scrutiny of debate. This is the only purpose for this irrelevant commentary on a political genius that towers over the paltry thoughts of a law school professor.

This is a law school professor who pales against the genious of Madisonian thought. Madison is plainly suggesting that there WILL be political parties. That is why we must have a system of checks and that one department cannot subdue the that one faction cannot trample on the other. Madison was able to see into the future and predict how government and people would behave in the political arena. The reason this writer is attempting to deconstruct Madisonian thought is to promote his own socialist agenda. In order to argue for his world paradigm, Madison must be set aside....but he will have to find a better way of doing just that. This commentary on Madison is fantasy....not the visionary advice of the Grand Architect of our Republic!!!
Donald C. Boyd

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