Warning: This Post Is about Presidential Powers, Not Sex

Back to more familiar topics for this blog. I’ve linked to this before, but in the context of today’s revelations — well, today’s decision to not keep lying about what everybody already knew — regarding the NSA and various secret surveillance operations, now might be a good time a take a look at Senate Report 93-549, produced in 1973 by the Special Committee on the Termination of the National Emergency.

Back when Congress, for one brief shining moment, tried to do its job, the committee reviewed the modern history of the super-powerful executive branch and what the report called the “aura” of ongoing, overlapping national crisis in which extensive power came to dominate the concept of the presidency — most interestingly, given today’s situation, by having that power delegated by Congress via new legislation.

The thing is even clearly written (I’d only remove the first comma):

A review of the laws passed since the first state of national emergency was declared in 1933, reveals a consistent pattern of lawmaking. It is a pattern showing that the Congress, through its own actions, transferred awesome magnitudes of power to the executive ostensibly to meet the problems of governing effectively in times of great crisis. Since 1933, Congress has passed or recodified over 470 significant statutes delegating to the President powers that had been the prerogative and responsibility of the Congress since the beginning of the Republic. No charge can be sustained that the Executive branch has usurped powers belonging to the Legislative branch; on the contrary, the transfer of power has been in accord with due process of normal legislative procedures.

That’s the scariest part. We know about the illegal stuff. The key thing is the legal shifting of power from the representative to the executive. And that was 1973! So here’s something really painful:

It is fortunate that at this time that, when the fears and tensions of the cold war are giving way to relative peace and detente is now national policy, Congress can assess the nature, quality, and effect of what has become known as emergency powers legislation.

Forty years ago, they were looking back forty years, and they thought they were going to end the emergency.

Read the whole report.

“Occupy Wall Street” Reading List

Yes, reading. Might help with attempting coherence, distinguishing between a grievance and a demand, stuff like that. Call me a patronizing elitist — you won’t get any argument from me! — but in a world where sincerity is equated with the inarticulate and cogency is supposedly only a telltale sign of privilege and hierarchy, these readings show that sounding authoritative does not equal selling out to authority.

The Putney Debates. 1647. Rank and file in Cromwell’s Army believed they deserved the vote. Cromwell disagreed. The “Levellers” lost — but this is one of the first articulate demands for disconnecting rights from property.

Letter from a Birmingham Jail. 1963. Martin Luther King, Jr., argues for the validity of taking direct action in the street, not just waiting for courts to catch up.

The Port Huron Statement. 1962. In a time not of recession but of immense prosperity, students who had benefited from that very prosperity questioned its basis and demanded a renewal of American political values, at home and around the world. Prescient or self-fulfilling or both? Anyway, at once passionate and crystal clear.

The Populist Party Platform. 1892. “We meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized; most of the States have been compelled to isolate the voters at the polling places to prevent universal intimidation and bribery. The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists.”

Common Sense. 1776. Paine’s call not only for American independence but also, and more importantly — and this is the part routinely and deliberately ignored or marginalized by liberal “consensus” historians — for social equality, in a new kind of American republic.

That’s a start. . . .

The Founders vs. American Democracy

Here’s another comment that helps refine the discussion I’m interested in, this time posted on New Deal 2.0 in response to my final “Founding Finance” post there:

I am curious where Jefferson (and for that matter Madison, Adams, Washington, and the other main framers) spoke hesitantly about democracy, the people, and the state legislatures. Conservatives would be surprised and it would undermine their ‘rely only on the framers’ approach.

Secondly, it would be interesting to see what the regulators and radical democrats philosophy on private property. If the elite were concerned about the violation of natural rights against private property when it came to paper emissions, what was the radicals’ response? Did they have a philosophy when the constitution was being debated?
Posted by Brian | May 11th, 2011 at 5:31 pm

Paraphrasing my response posted there: Heavy questions, superficially and briefly addressed here. I see Jefferson on democracy as a tricky issue. Continue reading

Amendments, mobs, God, rights, guns, Pilgrims, Adams, etc.

Responding here to a bunch of comments posted during recent months, since I don’t like burying and scattering the discussion:

Elites versus the crowd. Working backward and starting with lacithedog’s comment on my “New Deal 2.0” post. Laciethedog is reading Declaration and comments further on the “New Deal” post here. I appreciate the interest and support. And I have a concern about the idea that the founding fathers “incited the masses” and then found “the mob” hard to control. In both Declaration and that “New Deal” post, I do discuss tensions — indeed, outright enmity, at times — between the adherents of populist democracy and the adherents of republican liberty who banded together to defeat reconciliation with England in 1776. But I think I also show that I see the alliance as a matter of mutual manipulation, with ordinary people possessing plenty of initiative, intelligence, and what the historians call “agency,” and not of a mindless mob being incited and then imperfectly controlled by elites. Not sure if laciethedog is thinking of it quite that way, but the terminology gives me pause.

War on Christmas. Laciethedog also comments on my “war on Christmas” post. Point taken. Can’t agree that anything would have made either Adams literally a Tory — but even without a time machine, John Adams’s “Good God!” on reading the radically democratic PA Constitution of 1776 (and his predicting that PA would soon want George III back), and Samuel’s calling for the death penalty for the so-called Shays rebels, made many at the time think the Adamses and others had reverted to a kind of Tory authoritarianism. Neither Samuel’s nor John’s disgust with the populism they’d collaborated with in 1776 represents a reversion, however — which is really the well-taken point of laciethedog’s comment. While they differed in influences, emphases, and personal styles, both Adamses remained pretty consistent in their elite Whig republicanism throughout the period. Whigs were not democrats.

Socialist Pilgrims. Michael Pichowsky makes a thought-provoking comment regarding my post on the “Socialist Pilgrim” flap. But even given all of Pichowsky’s nuanced understanding of the Calvinist-socialist problem, I’m still unconvinced that it’s fair to see the very specific Plymouth experience as revealing some big truth about the virtues of free markets versus a centrally planned economy. Bradford does seem to have been reading the lesson pretty much that way, though.

Inalienable rights and God. My Constitution posts are leading me toward an article that would qualify as something other than a post, more like what I call a “work” in this post — whether I end up publishing it here, on another blog, or in a magazine. Interesting comments in this regard included Martin’s, of What Would the Founders Think?. Martin raises the issue of where the in- or un-alienable rights come from and says that Glenn Beck gets it right: from God. Liberal readers may be surprised to hear me say that, in this context, I agree: Continue reading

And Another Thing …! More on Misconstruing the Constitution: The Second Amendment

This follows up yesterday’s post on widespread ignorance of where, exactly, the Constitution separates church and state, and what amendment Roe v. Wade argues abortion rights rely on, etc. — ignorance found most significantly to me among people who are sure that the Constitution does separate church and state and guaruntee abortion rights. [UPDATE: And it precedes a further post also on the same issue.]

I just heard from a well-regarded Constititional law guy at the Cato Institute who says studies show that Americans of all political stripes revere the Constitution, but few know what’s in it — especially if you don’t count the Bill of Rights. Which is good to know, since my evidence is all anecdotal!

I’ve also noticed, anecdotally, that a lot of the same people who don’t know that religious freedom is found in the First, or that Roe v. Wade cites the Fourteenth, have a surprisingly aggressive argument to prove that the Second really doesn’t, all appearances to the contrary, protect private gun ownership. This plays into my suspicion that we revere the Constitution — or, really, pay attention to it at all — only when we think we can show that it says what we would want it to say.

There is an argument that the Second doesn’t protect gun ownership. A lot of that argument relies, very very heavily, on the grammatically vague, awkwardly cast phrase about militias and freedom that precedes the main clause. Here’s someone arguing that the phrase is “absolute.” I know this term from the “ablative absolute” in my days struggling with Latin (or struggling against it). This writer says it sets up what I and many others have already identified as a loose relationship between the phrase and the main clause.

Right: since the phrase doesn’t modify anything in the main clause — the only modification occurs within phrase itself — we’re left to wonder what the hell it does do. Maybe everything. Maybe nothing. And that’s not helpful, James Madison.

Anyway, if you removed that (to me extragrammatical) thing, whatever it is, the main clause sounds clear as a bell: government can’t disarm the people. But I once read a long and characteristically brilliant Garry Wills piece in NYRB, a million years ago, that proved to me that the amendment doesn’t really protect private gun ownership. Proved it while I was reading it, that is — the second I put the essay down, I failed to hold onto the argument, and I was again confronted by that stark main clause, which sure sounds as if it protects private gun ownership. I mean doesn’t it? If an argument, right or wrong, is so Jesuitically subtle that nobody will be able to reproduce it on their own, just as a practical matter it’s not going to withstand assault from dumbasses (like me, in this case).

In any event, I’m not saying there’s no argument to show that the amendment doesn’t protect private gun ownership. There probably is. You can argue almost anything. I’m saying that it’s curious to find supposedly erudite constitutional/historical parsing of that amendment coming all of a sudden from people otherwise unable to paraphrase the amendments at all. Just saying. Seems sort of disingenuous. “The amendment’s referring to a militia ,” they explain helpfully. “Back when they used to drill , on the public square.” Gee, thanks.

I think all of really this means that, liberal or conservative, we don’t revere the Constitution. We just want to say “constitutional” and “unconstitutional” to preempt discussion of a matter at hand. And it never works. And it’s getting tedious.

Constitution shmonstitution! As I believe Sonny Bono once said in committee. (Really.)

One of many interesting things about the Second Amendment, often overlooked, which the military historian of the federal period Richard Kohn makes clear: The real use of that opening phrase (and probably, I’m thinking, why Madison put it in the deliberately vague “absolute”) was to imply that there wouldn’t be any need to establish a regular army in the United States. Or at least to suggest that any such institution would be kept small and provisional and not letting it ruin the militia system. To many Americans, militarism was historically known to justify war, and war to justify militarism, and both were used to swell executive power beyond bounds and diminish liberty.

So here’s an irony that might cut across current political divides: the Second Amendment, whatever it says, is precisely and assertively anti-militarist. [UPDATE: And in that sense was, as written and ratified, totally disingenuous.]

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The First Amendment and Liberal Prejudice against Religion

[UPDATE: This turned out to be the first in a trio of posts about misapprehensions and misappropriations of the Constitution, across the political spectrum. The second one, on the Second Amendment, is here. ]

Say “first amendment” to most people, and they’ll say “freedom of speech.” They’re right, of course, as far as it goes. But.

The failed Tea Party Senate candidate Christine O’Donnell drew some laughs a while back when she asked, she hoped rhetorically, where in the U.S. Constitution church and state are separated. Her opponent knew the answer and paraphrased the relevant part of the First Amendment aloud. Her laughing audience were law school students and faculty, so they knew the answer too.

But many otherwise well-informed people, who are sure that there is a constitutional separation of church and state, don’t know where in the Constitution to find it; or know that the First Amendment opens by disestablishing religion, and only then goes on to protect speech; or that the amendment is based on what was known during the founding period as the Virginia Statute for Religious Freedom (Jefferson, its author, listed it among his proudest accomplishments).

That ignorance raises some weird questions. One has to do with the inveterate scorn of educated liberals for the likes of O’Donnell. It’s far from clear that many who deem themselves intellectually superior to her could have responded to her challenge (it’s good that her opponent could). The challenge might seem a dopey one, but it would have left plenty of liberals sputtering. And since she is not well-educated, and those liberals generally are (in ways other than law and history), that’s bizarre and disturbing.

“These Tea Party people don’t know any history,” fume some I know, and while in some cases (like O’Donnell’s) that’s true, in others it’s not. A lot of them know American history because they just happen to like it. You could argue with their interpretations — but only if you knew something about it yourself!

I find that it’s liberals, and I mean the kind of liberals who can read Chaucer in Middle English, who really don’t know any American history. Continue reading

Facebook, Locke, and Privacy


It cracks me up — though it doesn’t appear to amuse John Locke, left — that Facebook users are expressing privacy concerns.

Of course every site of which you’re an active user, and to which you provide billing and credit card info, location, various statuses, and so forth, makes you vulnerable both to theft and to having your personal info sold, legitimately or otherwise, to spammers, junkmailers, market researchers, and others. If FB’s security around that stuff is weak or its policies lax, that’s mildly unfortunate, and with a site so big — really, a kind of ad hoc and rapidly developing platform — there’s no way for FB to handle everything that happens on FB.

But since when did the ultimate purpose of privacy come down to keeping your personal data secret? The real theory and practice of privacy has played a critical role in creating the liberal, Western culture that everybody using FB reflexively relies on. And FB is the biggest reflection yet of our collective urge to demolish that theory and practice.

The amazing thing about FB is that instead of asking 50 [UPDATE: I mean 500!] million people to take a moment to respond to a marketing survey — which of course would be impossible to do, would get a 2% response rate even if it were feasible, and could pose only a very limited number of questions, providing dumb, crude results — FB has inspired all 50[0] million actively to publish, on their own hook, a vast, developing, daily and hourly proliferating and self-perpetuating body of extraordinarily detailed information about themselves. This is not about your name (please!) but about your and everybody’s else’s “likes,” keywords in posts, and perhaps most importantly, [UPDATE: or maybe not?] digitally networked relationships. That’s a 100% response rate from 50[0] million people on a kind of info that has never been imagined before.

ZuckerbergNobody planned that. The whole point is that only we who joined FB could have done it.

The real value of that info lies not in what we like to think of as the personal. As usual, FB users aggrandize themselves, placing importance on their individual preferences and choices (without self-aggrandizement, no FB!). Actually nobody significantly cares what you, in particular, “like,” or who you, in particular, are particular “friends” with. (If you’re using FB to start a loose association of terrorist sleeper cells, you’re the exception that proves this rule.) The value of the data lies in how an extraordinary multitude of factors of your personal info relate to those many factors of the other 49[9],999,999 active FB users’. Pattern-making has only just begun, and so far what’s known about it looks pretty crude to me, but I think the possibilities for vastness, nuance, and kinds of reporting look, literally, infinite.

OMG, what if this capability falls into the wrong hands?

It’s already in the wrong hands: ours.

Real privacy was never supposed to be about mere sneakthief prevention or avoiding irritating solicitation. And it actually was individual — in a way that FB, for all its titillation of “you,” and “your” supposedly individual “likes,” overwhelmingly is not. FB may be the biggest collective action ever taken, though in service of ends that we in the collective — and maybe even the inventors — know not of. Which may make it merely the biggest mass hysteria outbreak of all time. And time alone will tell.

In liberal Western thought, however, the very justification of private property, over and against those who have called property nothing but theft, has been that liberty, and thus genuine, responsible contribution to the public good, is possible only in a condition of personal independence from excessive influence. The one way to limit the power of the sovereign, back in the day, was to create private spheres where the sovereign could not legally enter (without consent). Those rights are held individually, not collectively (even though representative bodies may be elected to enforce them). Hence this post’s reference to Locke, but he was far from alone.

Publishing — public speech, one of the key liberties — has always involved a tension: it sacrifices a portion of the privacy that enables it. People used to publish anonymously, and nobody would have published at all except for some benefit (money, glory, controlling or insulting other people, attracting sex partners) that appeared to outweigh the awful sacrifice. Publishing involves compromises of which FBers, a new kind of publisher, appear largely oblivious. When you blithely publish a picture of my vacation house without my consent, for the public ooh-and-ahing (and possibly the private disdain) of your 4000 FB “friends,” you’ve violated not only my privacy but much more importantly 1000 years of the hard-won liberty you rely on both to travel to my vacation house at all and to publish at will.

Turning what should be private into something obsessively, self-consciously public — written conversation, in particular, whether one-to-one, one-to-many, or many-to-many, seems to me the most revolting example of this phenomenon on FB — is part and parcel of a retreat from genuine public engagement. And that retreat includes ranting on FB, and soliciting signatures and votes, regarding whatever’s bugging you politically. Real engagement is only truly possible, according to the old rad Whigs on whose thinking our entire culture is so problematically based, where privacy is not only maintained but also understood. Our understanding of what privacy is, as both FBing itself and FBers’ worries about security show, has been undermined, possibly fatally.

Those Whigs were not democrats. They feared social “levelling” in part because they feared and loathed the classes beneath them and wanted to protect their property (secretly suspecting, perhaps, that property is theft, and that the laborers might someday try to get it back!). But on the highest levels, they at worst rationalized their elitism, and at best transcended it, by warning against the absence of political independence that can come with the democratizing spirit. They feared political machines and parties and demagogues.

It’s an irony — polite word for “OMFG, now we’ve totally ruined everything” — that the virtual-world take on college elitism that was the original FB has so democratized publishing, while so quickly demolishing general understanding of privacy, that our political machines might look benign by comparison, to the old 17th C. liberty crowd, without whom none of this stuff would have developed in the first place.

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John Yoo and the Whiskey Rebellion

I was interested to see John Yoo citing my book The Whiskey Rebellion in his recent Crisis and CommandAuthor of the notorious Bush-administration “torture memo,” and now a law professor at Berkeley, Yoo is using his book to defend Bush’s ruthless efforts to expand executive-branch power. Seeking precedent in earlier expansions, under conditions of national threat that Yoo takes to be similar to those posed by Islamic terrorism, he looks specifically to Jefferson, Jackson, Lincoln, FDR, and, of course, Washington.

Which brings him to The Whiskey Rebellion. Continue reading