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A description of constitutional dictatorship:?

By Jack M. Balkin

Tomorrow's New York Times Book Review has an extensive review by Jill Abramson of Bob Woodward's The Final Days. There is much to ponder about regarding similarities between Mr. Bush and Sen. McCain in terms of their leadership styles, including inordinate confidence in their own rectitude and a tendency toward impulsive decisionmaking. But I'm most struck by the following:

?In the end, one lesson remained,? Woodward concludes, ?a lesson played out again and again through the history of American government: of all the forceful personalities pacing the halls of power, of all the obdurate cabinet officers, wily deputies and steely-eyed generals in or out of uniform, of all the voices in the chorus of Congress clamoring to make themselves heard, one person mattered most.?

Perhaps it's an analytic truth that in any system of government "one person [will matter] most," but isn't it the case that we've carried this to excess in the United States, given that that person will almost always be the President, whether or not he is thought to be competent? Our presidentialist system, whatever its merits in 1787 (when, of ocurse, everyone assumed that George Washington would become the first president), carries with it extraordinary dangers if there is no way of firing a president who is incompetent. Is it fair to offer Woodward's comment as a good first-cut description of what is meant by a "constitutional dictatorship," espcially if the person who matters most has the authority to trigger war and cause death, mayhem, and destruction?

Yes, it's true that Mr. Bush was elected in 2004, even after his incompetence was manifest to many, but a contributing reason was the unwillingness of those around Bush to tell the American people the truth about what he was really like. Woodward apparently describes a White House full of fawning courtiers or people who are simply afraid to stand up to the Great Decider, including Colin Powell (sadly). Perhaps it is best to stick with the system we have, including a rigidly fixed-term presidency so long as the President doesn't commit a "smoking-gun" crime, but shouldn't we recognize that this comes at enormous costs, both to us and to the rest of the world, so we should be damned clear about what benefits outweigh the costs?

Needless to say, no such questions were asked last night in the debate, because we take the four-year tenure in office as undiscussable given, and it is certainly quixotic to expect Obama and McCain to offer any criticisms of the constitutional structure of the office for which they are running. But perhaps one might discuss the issue of presidential power itself, including on particular power of the president: to pardon. (Many anti-Federalist opponents of the Constitution focused their criticisms on this power, which they rightly associated with monarchical power in effect to suspend the operation of ordinary law with regard to royal favorites.) Might not Jim Lehrer have asked McCain and Obama their views about the potential pardons, by Mr. Bush, of everyone linked with torture? Presumably he has the constitutional authority to do so. That's an easy question. But would they both agree that any such use of his power is to be condemned? (Or would that be an essential step in "putting the issue behind us and preventing a 'political witch hunt'"?) And, if he does exercise his pardoning authority, what would their views be about appointing, presumably with congressional authorization, a National Commission of Inquiry with a significant budget and subpeona authority to study exactly how it is that the United States has become synonymous, all over the world, with torture? This is surely relevant, incidentally, to understanding some of difficulties in the arena of foreign policy, the topic of last night's "debate."

John McCain wants to appoint a national commission to study the origins of the ecoomic crisis. Why not a similar commission to study the origins of our moral/political crisis forged by David Addington and his minions in the Bush Administration who took the US very much into the Dark Side? Sen. McCain has a generally admirable record of standing up against the devotees of torture in the Bush Administration. So why wouldn't he support a commission, especially in circumstances where no one could go to jail given the presumptive pardons issued by Mr. Bush? Ditto Obama.

Full post as published by Balkinization on September 27, 2008 (boomark / email).