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Further notes on constitutional dictatorship

By Jack M. Balkin

1. I begin with the lead story in yesterday's New York Times, titled "Obama Detention Plan Poses Fundamental Test" in the print version and, interestingly enough, "President's Detention Plan Tests American Legal Tradition" on the web. In any event, the story details the possibility that the United States will attempt to confine, perhaps for a lifetime, people it considers national security threats without trial or, indeed, even after acquittal in a trial. There is much that could be said, but I want to note only a quotation by Benjamin Wittes, who has written a book, Law and the Long War: The Future of Justice in the Age of Terror that argues "for an indefinite detention system," according to the Times. "This is the guy who has swotn an oath to protect the country," Mr. Wittes said, "and if you look at the question of how many people can you try and how many people are your terrified to release, you have to have some kind of detention authority" even in the absence of anything that could be dignified with the term fair trial.

Perhaps Mr. Wittes is correct, in which case we should simply change the oath of office from the present "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States" to ?I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States and will always act in the best interests of the United States."

Perhaps Mr. Wittes (and many other people) believe this would change nothing, but some naive readers may believe that Presidents are actually confined by the Constitution on occasion and may have to come to the reluctant conclusion that what they believe is in the best interests of the country is actually beyond their constitutional authority. So adopting an updated constitutional oath would clear up any such confusion and make altogether clear that when we elect a President, we are indeed willing to give him/her basically dictatorial authority.

President Obama himself has noted, "In our constitutional system, prolonged detention should not be the decision onf any one man. But, of course, it's actually quite misleading to believe that a "constitutional dictatorship" really must reduced so completely to fiat rule. And, in addition, the President is much too busy to make the exquisite decisions person-by-person. So, as in all other aspects of the modern administrative state, we're really talking about the ability of the President to "delegate" such decision-making authority to a small group of men and women who will know, presumably, that they won't have to defend their decisions before anything that might be described as a traditional Article III court applying traditional legal standards.

2. The Times also ran an extremely story by John Burns on the scandal toucning all parties in the current British Parliament, which, Burns suggests, has generateed talk "of a political system grown petrified, and in urgent need of a root-and-branch overheal that restores the accountability of politicians--and of the government--to the people." Indeed, he notes that some critics of the present parliamentary system in England refer to a "parliamentary dictatorship," where the Prime Minister is able, much of the time, to rule more-or-less with the rubber-stemp compliance of his (or, as in the case of Margaret Thatcher, he) party, "with the only moment of meaningful accountability for governments coming at general elections...."

It's a very fine article that everyone should read. Where Mr. Burns, alas, goes dreadfully wrong is his almost chauvinistic suggestion that the United States is free from the British disease. Thus he writes that "American presidents, who struggle with hostile majorities in Congress or assertive Supreme Courts, have envied the relatively untrammeled power wielded" by British prime ministers. We, apparently, operate under the "balance-of-power constraints of the American Constitution." Then how explain that Margaret Thatcher was unceremoniously bounced by her party when the discerned her as an electoral liability and that Tony Blair was almost as unceremoniously pushed from office by the Labour Party? And how explain that when presidents are not faced with "hostile majorities" in Congress, they can increasingly count--especially if Republican--on the lemming-like loyalty of congressional majorities who are especially delighted to provide not an ounce of the oversight that the naive might believe attach to a separation-of-powers system? And, of course, even when George W. Bush was faced with divided government in 2007-2009, he was still able to exercise quasi-dictatorial powers with regard to military and foreign policy.

But enough of Bush bashing. After all, the President who seems determined not to hold any high-ranking member of that Administration accountable for disgracing the country and making us less safe to boot by adopting torture as a national policy is Barack Obama, to whose campaign I contributed and for whom I happily voted (and whose presidency, overall, still leaves me delighted). But surely we should recognize that the American version of "constitutional dictatorship" is built into our system and not simply a function of charcter. I confess I was much concerned by a conversation that I had last week with an old graduate school classmate, the most brilliant member of our cohort and a specialist on international and military relations (and, for what it is worth, a registered Republican to boot). He expressed great concern about the looming catastrophe facing the United States as the result of Presidentn Obama's ill-thought-out escalation of the war in Afghanistan. My friend noted that Kandahar was originally established by Alexander the Great, who was merely the first outsider who had delusionary visions of establishing a hegemony over Afghanistan. It's simply never been done, with the British and the Soviets being our most recent predecessors in such an effort. There is no reason to believe the U.S. will be more successful, and one possibility of our escalation in Afghanistan will be to exacerbate the situation in what is truly the world's most dangerous country, Pakistan.

Though newspapers do occasionally suggest that some Democrats are unsettled about the Obama policy, there is scarcely a great debate taking place in Congress. And the mad-dog Republicans seem to be concerned only with arguing that the United States, alone among the nations of the world, cannot have a single "terrorist" in its territory, even if incarcerated in a maximum security prison.

3. Finally, I note Paul Krugman's excellent column, which bewails the current state of politics in California. "So." Krugman asks, "will America follow California into ungovernability? Well, California has some special weaknesses that aren?t shared by the federal government. In particular, tax increases at the federal level don?t require a two-thirds majority, and can in some cases bypass the filibuster. So acting responsibly should be easier in Washington than in Sacramento." Sigh.... It should be easier, but, of course, is may not. Part of the reason is mad-dog Republicans who have decided to drink Rush Limbaugh's hemlock. But perhaps a Nobel Prize economist, who ends his column by writing, "On the other hand, the problems that plague California politics apply at the national level too," might address the possibility that our Constitution, too, has features in it that make responsible near impossible.

I have opted to allow comments. But I do hope that most of you will post on the structural arguments attached to the presence (or absence) of "constitutional dictatorship" either here or in the UK rather than rushing immediately to an argument on the substance of the policy. Perhaps you think Obama's policy in Afghanistan is just terrific. Fine. Just address the fact that it is his policy, rather than something truly authorized, after significant debate, in and by Congress.

Full post as published by Balkinization on May 25, 2009 (boomark / email).