Saturday, April 12, 2008

Life in a constitutional dictatorship (continued)

Sandy Levinson

Dan Froomkin's invaluable roundup of presidentially-related news stories in the Washington Post includes the following, taken from a posting by Matt Corley written for

"On his radio show this morning, Bill Bennett told the Weekly Standard's Bill Kristol -- who had a personal meeting with President Bush yesterday -- that a 'conclusion' he drew was that the hearing was 'less an argument for getting out of Iraq than going into Iran.' After suggesting that Iran may 'have to pay some price at some point on their own soil,' Kristol said that President Bush authorizing an attack of some kind before he leaves office is not 'out of the question.'

Bennett: "Do you think there's any chance that, and we won't ask you to reveal anything confidential, do you think there's any chance that we might take some action against some aspect of the Ira -- against Iran, let's put it that way, before the resident leaves office?"

Kristol: "We didn't really talk about that, in all honesty, directly. I don't think it's out of the question. I think people are overdoing how much of a lame duck the president is." [emphasis added]

Let me translate the last sentence: "People must come to terms with the fact that we have an elective dictatorship in the United States, at least in some respects, and that President Bush, even if he currently has the support of only 28% of the American public, can do whatever he fucking wants to do, becasue he's the great decider and there is absolutely nothing the American people can do about it as a practical matter. For starters, he can veto any legislation barring the use of currently available federal funds to engage in "action" against Iran, and even if the Democrats had the backbone to attempt impeachment, it is unthinkable that enough Republican senators would desert him to make it truly possible--though, of course, some might vote to convict just in order to get President Cheney!"

A second point: Froomkin also notes the return to presenting Iranian President Mahmoud Ahmadinejad as a crazed messianist who is willing in effect to destroy Iran in order to bring back the 12th Imam. Putting aside his religious beliefs, which may or may not be crazier than those actually, even if not publicly, held by President Bush and at least some of the 60% of the Republican Party that continues to support him (as against 7% of Democrats and 17% of Independents), one should recognize, as perhaps the Administration does not, that the egregious President of Iran, unlike the egregious President of the United States, is not a dictator with regard to the deployment of Iranian military force. As I have pointed out in an earlier posting. the President of Iran, both as a constitutional and, it appears, practical matter, is firmly under the control of the Supreme Islamic Council, which has given no sign of irrational messianism. Our President, on the other hand, is, as a practical matter, unaccountable and, Kristol clearly hopes, uncontrollable.


If Obama has a comfortable lead in the polls at the end of the summer, then I would be very worried about the administration attacking Iran.

They will feel they have nothing to lose at that point and since the will of the people is not a concern for them...

Yes, there is nothing the American people can do to stop Bush. This being a representative democracy, with fixed terms. There are many things other elected officials could do to stop Bush. Will they? Probably not, but that's a result of their choice, not incapacity.

I've said this before, I'll doubtless say it again: You're seeking a constitutional cure to a problem of political culture. It's not that Congress can't rein in the President, it's that they don't want to. That might involve being blamed for consequences, you know, and pretending to be powerless means never having to take responsibility.

I've said this before, I'll doubtless say it again: You're seeking a constitutional cure to a problem of political culture. It's not that Congress can't rein in the President, it's that they don't want to. That might involve being blamed for consequences, you know, and pretending to be powerless means never having to take responsibility.

Brett, there's a lot of truth to this. But isn't a more defensible way of framing Professor Levinson's argument that our political system has certain structures in place that make this "political culture" more likely. For instance, the high constitutional bar to impeachment (which, for the record, I don't actually oppose) certainly discourages impeachment for political reasons, even if the political reasons may be compelling. The fact that the vice president comes from the same party also could be argued to discourage impeachment (though I realize this point could be argued the other way). The composition of the Senate could be argued to overrepresent states with a more militaristic outlook and therefore make it difficult for an opposition party to get to votes to stop even unpopular military action. Etc.

I am not saying that I agree with all this. Indeed, I really don't-- I tend to think Professor Levinson's claims are overstated and that you are right that Democratic Party fecklessness is much closer to the explanation here. I am simply saying, though, that an explanation that points to such fecklessness doesn't exclude that Professor Levinson could be right and that there are problems within our constitutional structure that make such opposition party fecklessness more likely even when we may need the opposition to stand up and be heard.

Something that is bothering me is that with the passage of every day from some shocking revelation, like the admission by President GW Bush that he "authorized" the suspension of the Geneva Conventions with suspects related to the US interest in al Qaeda, as clarified in his order of Feb 7, 2002 and corroborated by that a a growing hill of other evidence, is that it is increasingly difficult to make a principled & meaningful distinction between the compliance of the citizenry of Germany under the Third Reich in their government abusing, mistreating, torturing and causing the deaths of millions of Jews on the one hand, and the citizenry of the United States under President GW Bush abusing, mistreating, torturing & causing the deaths of Muslim prisoners on the other.

Isn't there a danger that in declining to use the impeachment provision of the Constitution, Congress, and so we who "choose" its membership, are "doing" something which amounts to complicity in the underlying crimes?

And without looking to the Constitution as the guide to behavior aren't we putting ourselves in pretty much the same position as the post WWII former West Germany?

That is: failure to impeach is not just wrong morally, its wrong very practically in disregarding the clearly articulated remedy in the Constitution, and thus is an endorsement of lawlessness or unlawfulness or both [I think both], and wrong legally at least arguably, and wrong for national security for in essence encouraging the same treatment for U.S. ciitzens [though in defiance of the President's order against that - which to make sense at all requires that it be interpreted to apply to other nations and other citizens], and further wrong for national security to the extent the President's message encourages vigilantism, and also wrong because its threatens to put us into a national funk for however long the nation takes to formally address it.

George Bush's own words validate Sandy Levinson's bold but accurate view of the administration's approach to the executive functions of our federal government. Shortly after his re-election Bush explained his authority to pursue the conflict in Iraq exactly as he pleased: "We had an accountability moment, and that's called the 2004 elections, ..." Washington Post, January 16, 2005.

This was echoed in Dana Perino's White House press briefing of March 22, 2008, when she rebuffed the idea that the president or vice president pay attention to the American public:

"Q Well, what it amounts to is you saying we have no input at all.

MS. PERINO: You had input. The American people have input every four years, and that's the way our system is set up."

Bush and Cheney are applying to national governance a CEO's approach to corporate governance. But instead of being accountable to a board of directors meeting monthly, they are at risk only of being fired every four years by an Electoral College (or Supreme Court) vote for a competitor. Once elected, they are free to do whatever they decide, as well as ignoring or subverting any law -- including the Consitution -- that seems to stand in the way.

"But isn't a more defensible way of framing Professor Levinson's argument that our political system has certain structures in place that make this "political culture" more likely."

To some extent. But I think the larger problem is instead the fact that our government has been "online" for a very, very long time. In that time it's accumulated a lot of extra-constitutional baggage; Institutional memory is NOT an unalloyed good. A lot of our government's institutional memory is about how to circumvent constitutional safeguards, and prevent the government from working the way it's supposed to.

I'd compare it to the problems an operating system might encounter if a computer runs a long while without reboot.

So, it's a real problem, but I don't think it's a real constitutional problem. Instead, it's a problem of the people running the government accumulating knowledge of how to circumvent that constitution.

For instance, institutional, non-constitutional rules in Congress that transfer power out of the hands of average members, to the leadership.

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