Friday, July 25, 2014

American Legitimism (2005)

The arguments in defense of George Bush's warrantless wiretapping have an old history, specifically, they belong to the history of absolutism, where "L'etat, c'est moi" was a legal principle. Absolutism posits a rule of people, that in the interests of the state and the nation, that individuals are empowered, rather than offices. Thus, they argue very broad implicit powers from small mandates. Essentially, the power that Lincoln had to deal with the insurrection of nearly half of the United States, Bush wants to have to spy on political opponents. The opposition to Bush has been housed in some strange quarters. It is not merely the most progressive legislators who have stood up, indeed some of them have been relatively quiet, but conservative Democrats such as Harry Reid, Tom Daschle, Robert Byrd, Jay Rockefeller. Conservative men from conservative states. It was Harry Reid who first began using the constitutionally charged phrase "abuse of power".

Why are these men, neither young nor liberal, standing up to be counted as opposing the expansion of executive power? It is because something moves them that is beyond the questions of liberal or conservative policy, or even ideology. Instead it is a divide between Presidential absolutism, and American legitimist philosophy. These words, in a European context, apply to kings and the questions of the right of descent. But Americans have no hereditary monarchy, despite occasional aspirations in that direction. In American, legitimist thought rests on founding statements such as the Declaration of Independence, the Constitution of 1787, the Bill of Rights of 1789, and the 14th Amendment, which as sometimes been called a second bill of rights, and the Civil Rights Voting Act.
The legitimist argument is that government action, however far reaching, must come to root in basic principles of government which were ennunciated. That there have been particular moments of accord, and these moments have set that constitutional resonance to paper as law or other instrument. These moments then produce an agreement, a modification to the basic social contract where some great issue was settled. Were we Americans or British? Were we a Republic or a Confederation? Did we have rights before the Federal government? Was there a national citizenship? Was citizenship universal?
Several times chief executives, eager to reach for what they thought was some bright plum of advantage, have wielded executive power first, and sought approval afterwards. Often they found they could do so without political cost. Jefferson's Louisiana Purchase was one such example, and Lincoln's printing of paper money in the Civil War was another. Even President's find that it is often easier to get forgiveness, than to ask permission. Early in his Presidency, faced with the worst economic disaster in American history, FDR attempted to assert what constitutional scholar Bruce Ackerman called "the corporate presidency". Ackerman described FDR's impulse as centralizing the power of the nation in the President's hands to deal with the crisis. This theory had its expression in the National Industrial Recovery Act, which the Supreme Court promptly overturned. It was at this moment, as Prof. Ackerman describes it, FDR had a moment of political contemplation, and reached a new synthesis. This shift in direction is characteristic of such great moments. The initial crisis gives power to the executive, since there is a belief that time is of the essence. But that power is felt to ebb back from the President's hands almost as quickly as it enters them. He may have his hundred days, but seldom more than that to enact a program. Presidents have sometimes claimed this moment after a successful midterm election.
The absolutist however, does not see any reason why power once granted does not return to the public domain once appropriated. At various times this impulse has been called "High Federalism", "Ceaserism" and "Toryism". Failing executives often demand more and more power in order to deal with problems - as Hoover became increasingly secretive in his dealings in the waning months of 1932 - and then demanded that if FDR wanted power early to deal with the banking crisis, it would come at the cost of renouncing "90% of the so called 'New Deal'". This absolutist impulse over took the first President to face an impeachment vote - Tyler - and it overtook the second as well - Andrew Johnson. When the public starts calling a President "King", it is a sign that a political counter-reaction is brewing.
In our time, George Bush has argued that he presided over a constitutional moment. That he has, in fact, the broad legitimate grant of power, in a constitutional form. The very document he points to as providing that authority disproves the claim of being legitimist in any way, it is the Authorization for Use of Military Force in response to 9/11. This is not a constitutional document, any more than JFK could point to the declaration of war against Germany as the basis for his actions in Cuba. For there to have been a constitutional moment, it must have been codified in law. The only laws that Bush has really gained are the Patriot Act - which does indeed erode constitutional protections in the name of security, and the Bankruptcy Bill, which impairs contracts in favor of lenders. But the Patriot Act was not put in place without limit, and is currently being renegotiated. Prof. Ackerman has pointed out that Bush has already had a political failure to create a new constitutional order - he has not swept a large majority to power as the party of the President, as had previous constitutional presidents. The present explosion over Spygate shows that he has also had a legal failure, that is, he has not created legislation which implies a permanent shift of power to the executive in the forms that he has used that power. The AUMF is an enabling act, but, like many radioactive elements, it has a short half-life.
That Bush is, then, not a legitimist, but an absolutist, in his view of constitutional arrangements is inescapable: a legitimist would have pressed through the needed permanent powers, or found them in previously passed legislation, as FDR made liberal use of both the Reconstruction Finance Corporation, and the Trading With The Enemy Act. FISA does not support the weight Bush has placed on it, even when in combination with the AUMF. In short, Bush is claiming a moment, that had it existed, would have given him the legal cover that he wanted for these actions. Or would have, at the least, given him the cover to claim he had the cover.
An example of how even headstrong executives find ways of creating formal legitimacy can be found in the history of the "Trail of Tears". Jackson backed the state of Georgia in its intent to evict the Cherokee nation, laws were passed to accomplish just that. However the Supreme Court, under Chief Justice Marshall, declared that the Cherokee nation was sovereign, and that laws could not be enforced against it without a treaty. While Jackson famously quipped "now let him enforce it", the fact is that the requirements for eviction - that it be in the form of a treaty ratified by the Senate - were followed, even though the treaty was signed by renegade members of the Cherokee nation. Only with this legal fig leaf was eviction allowed to go forward.
In short, American legitimism is the requirement that the past either produced a clear consent, or that the present is willing to give such a clear consent in response to crisis. The absolutist argues that the implicit power of the executive trumps this, not merely in the collision of a crisis, but in an on going manner. Several chief executives, even ones with larger majorities in Congress than Bush has now, have found a brick wall when attempting to ignore this barrier. Among them Jackson and FDR. It is not that Americans feel that constitution should be read like the fine print on the back of the shrink wrap agreement, but they do want a clear "agree" button where they know what they are pushing for.
It is this idea, now cohering into a movement in Congress, in the public, and among the writing classes, that is grinding against Bush, not the desire for a liberal or conservative government. Indeed, liberal or progressive Presidents have often felt the sting of a legitimist backlash to their actions. The difference is that when faced with such a reaction, the liberal and progressive response has been to seek the legislation required, even if the bounds of formality are stretched to the breaking point to achieve them. The Republicans have slammed through more controversial laws than this on party line votes in the middle of the night. That they have not been able to do it for this power, indicates that there has never been that crucial moment of consent which is required for its exercise.
In the present, the idea of legitimacy as the basis for a political movement is still forming. While some have written about "the legitimacy movement", it is with recent revelations that it has had a tangible symbol. It is only with the realization by the political class that they cannot do business with Bush, that there is a place to hang such a movement on politically. It is one thing for ordinary citizens to feel that they were robbed by Bush v Gore, or that their votes are not being counted by electronic voting machines. Even the chattering classes writing about the corrupting influence of money still does not rise to the level of political crisis. It is when the men who walk the corridors of Washington can not trust the words that they set to paper, nor the handshakes behind them, that political sense that legitimacy and necessity are joined truly has collapsed.
This is a crucial moment: American democracy makes the strong claim that we can have both necessity and legitimacy. That while dictators may, in the short term, race ahead, they will stumble because the weight of their power corrupts. We allow necessity to dominate for short moments, but require that if a particular power is to become part of the ordinary way of doing business, that it be codified into law, and legitimized by either court decision, or overwhelming political election, and generally both. The shearing away of legitimacy from Bush's claims of legitimacy exposes the center of his Presidency.
At the same time that Hurricane George spins down, there is a vertical shaft of political convection, the heat generated by people down at the surface has a chance to rise all the way up, and produce that cold, cold wind which sweeps Presidents off of their perches. The Republicans, who had coöpted the rhetoric of legitimist thought for their drive to dismantle the New Deal and Great Society, are now standing in the wrong place as it wraps around a new political center. One that believes that Bush has been given a great deal of authority, and produced very little in the way of tangible results. The result is that the political struggle in Washington is far less between liberals and conservatives, and far more between legitimists and absolutists. Those who see our present problems as soluable within the political process, and those who see a country that can only be governed in secrecy from the Oval Office.
Bush came to office with the intent on creating a new constitutional order, replacing key parts of the old order, in that he could maintain its powers, with new ones. This reactionary constitution was related to the attempts to create a vastly expanded government under Hoover, and novel legal theories of slavery under Buchanan. Reactionary orders fail when they over-reach, and still do not meet the crisis. Dredd Scott gave the slave holders what they wanted, they still left the Union. Hoover spent what were then enormous sums of money, and the economy still collapsed. 
Bush has failed on each of the three key test of a constitutional order. He has not turned anti-terrorism into an over-riding mandate, he has not created mechanisms which enforce the reactionary form of government even on those who disagree with it, and he has not created a meaning which binds people to their government. The constitutional lens - that of the constitution as corruption - is already failing, because it cannot both slash revenues and protect pensions and other promises made. Bush, like all reactionaries, wants enormous power, not to protect the system, but to protect the ill gotten gains of a few.
The tangible signs of this are simple and straightforward:
  1. He has failed to win an overwhelming electoral coalition for his mandate.
  2. He has failed to create a constitutional expression of his mandate in the meaning which is clear and plain.
  3. He has failed to produce a stable policy order which even political opponents must accept.

And now the crisis is running out, his mandate for rapid action, longer than most presidents ever get, is now drawing to a close. Everyone in Washington knows that Iraq is coming to an end, and that Afghanistan is a side show. This means that everyone feels - Republican or Democrat - that they can wait George Bush out. There is no need to grant him, or accept his fiat of, new powers, because the reasons for powers are drawing down, not ramping up. And this combination of political failure, combined with constitutional and economic failure means that while the Bush executive was an extremely successful looting expedition into the treasury - more so than any since the string of corrupt Republican Presidents from Grant to Chester A. Arthur - it has not transfigured the country as the post-civil War Repbublican Party did. Because while Grant was corrupt, his adminstration and the Congress of his own party created a series of landmark moments, and filled the court with like minded judges, which were to dominate the political and constitutional landscape until the Progressive era cracked open the locks of reform, and then the Liberal era flooded them with legislation.
In fact, Bush, by failing to put a flag in the shifting sands of the constitutional landscape, and by leaving behind a massive crisis, is setting the stage for a new Administration to create a different constitutional order. That this will happen is inevitable - there is not enough money on the planet for the US to pay its forward obligations. Either the future holds an America that returns to poverty as a common place, or it must find a way to generate a great deal more economic activity. There is no third choice. Either of the first two choices involve a radical restructuring of government. 
If Bush had been successful, then the current Republican Congress would not be shaving 30 billion over 5 years, but 300 billion over five years. The country would be pushing for the rapid dismantling of everything to bring the budget into balance, and to force the new order upon the land. Instead, the Republicans are doing everything possible to keep the old order alive. They are reaching the moment where they are going to have to unhinge the currency from its monetary base to do this, and at that moment, the death throes of their tenure begin.