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An Open Question for Constitutionalist Liberals

Here's a pretty old post from the blog archives of Geekery Today; it was written about 18 years ago, in 2006, on the World Wide Web.

Here’s a typical, arbitrarily selected attempt by mainstream liberals to explain what’s wrong with the Bush administration’s enthusiastic support undisclosed, unchecked, and unaccountable domestic spying. This comes from Hilzoy at Political Animal (2005-12-18):

What George Bush has done, by signing his Presidential Order, is to produce exactly that accumulation of powers that Madison and the other framers of the Constitution were determined to prevent. He has decided to circumvent the courts’ power to decide whether the government has enough evidence to place someone under surveillance, thereby removing a crucial check on executive power, and arrogating one of the powers of the judiciary to himself.

Moreover, the power he seeks to strip the judiciary of is not a peripheral one; it is essential to the Fourth Amendment prohibition against unreasonable searches and seizures. …

In addition, in deciding that he has the right to disregard clear statutes, President Bush is arrogating to himself the power of the legislature as well. The Legislature has the power to make laws; the Executive carries out the laws the Legislature has written. Had George W. Bush wanted to, he could have gone to Congress and asked it to change the laws. Instead, he decided to simply ignore them: to act as though he had the powers that the Constitution reserves to the legislative branch.

He is, essentially, claiming that he has the right not just to execute the laws, but to write them himself, and then to judge their application. …

But if it’s hard to reconcile the administration’s position with the Constitution and the views of the framers, it’s even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants — anything at all — during wartime. …

In this country we do not have an absolute monarch. We have a President who is bound by the rule of law, just like the rest of us. When he asserts the right to set the laws and the Constitution aside, and to arrogate all the powers of government in his hands in secret so that he can use it unchecked, we have an obligation to make it clear that he is wrong.

Now, to be clear, I think that the Right’s legal brief on behalf of the Bush administration is both specious and frankly dishonest; they’re wrong, and Hilzoy is right, about the question of positive law. But here’s the open question. There are actually two separate, or separable, objections that Hilzoy is lodging against the use of undisclosed, unchecked, and unaccountable domestic spying on in these passages. Specifically, Hilzoy is objecting both that

  1. Bush has to claim the authority to disregard existing laws and the Constitution in order to justify undisclosed, unchecked, and unaccountable domestic spying (i.e., he’s operating outside of the standing law); and also

  2. engaging in undisclosed, unchecked, and unaccountable domestic spying, in and of itself, involves arrogating all the powers of government into his hands (i.e., he’s diminishing the separation of powers, and thus claiming the right to more power than one person should have).

It should be clear that these two objections are separable. The Constitution didn’t have to be written with provisions for the separation of powers, and the Constitution and the laws can always be changed. If, for example, Bush had gotten Congress to repeal FISA, and, while he was at it, had gotten Congress and the several states to amend the Constitution to repeal or limit the Fourth Amendment, then he wouldn’t be vulnerable to objection 1, but objection 2 would not be affected.

Now, here’s the open question. If Bush had gotten the law and the Constitution changed so as to authorize undisclosed, unchecked, and unaccountable domestic spying, would that have made it O.K.? Would it have even made it substantially less bad?

If it would have, then why would it have? If it wouldn’t have, then why spend so much time and energy stressing the fact that he did tread on the statutory law and the Constitution, if you don’t think that that makes a substantial difference?

5 replies to An Open Question for Constitutionalist Liberals Use a feed to Follow replies to this article

  1. rose

    The question every citizen must answer is: Do you trust GWB to be your judge, jury and executioner? If not, it is time to stand up.

  2. Alex Gregory


    I’m not American, but here’s a thought I had on the issue: (hypothetical, since I’m not a fan of the constitution)

    The point of a constitution is to provide long term, near-set-in-stone rules that the government cannot break. The idea is that its hard to establish anything in the consitution originally unless it seems pretty clear its a good idea.

    In turn, that means that in modern times battles are easier one: One needn’t repeat the old arguments over this that or the other moral right, but merely needs to go: “Look, the constitution!”, and the political war is over.

    In short, the constitution secures certain things, and that makes the liberal battle easier if they refer to the constitution rather than something more fundamental.

    Put more simply: I’m sure most liberals agree that there are fundamental reasons why spying is wrong. But, its far easier to fall back on a constitution than a much more complex philosophical debate.


  3. Rad Geek


    Do you trust GWB to be your judge, jury and executioner?

    No. In fact I don’t trust anyone to be; that’s too much power for one person to have. But what’s does that have to do with the Constitution?


    The point of a constitution is to provide long term, near-set-in-stone rules that the government cannot break.

    I’m not sure that this is right, for a couple reasons. First, because the Framers seem to have thought that the Constitution, as they originally wrote it, had the purpose of enabling the central government to do certain things, not banning it from doing others. (The idea was that it had no rightful authority to do the things that it wasn’t expressly authorized to do.) The idea that Constitutional provisions should serve mainly as stops to government action rather than authorization for it is mainly a product of the increasing role that the Bill of Rights has played in constitutional law over the past century. Secondly, because the explicit stops on government power don’t actually provide that much in the way of concrete guidance as to what’s in and what’s out, but rather favors very broad general principles (unreasonable searches and seizures, cruel and unusual punishment, etc.) that need to have most of their details elaborated by the legislature and in court. The power-limiting parts of the Constitution very frequently seem more concerned with setting out general precepts for how the government can’t act than to specify concrete rules.

    Now, I happen to agree that Bush’s secret domestic spying does violate the clear meaning of the Fourth Amendment. (Actually, I think any form of warrantless spying does, regardless of the nationality of those spied upon.) But that’s certainly a question that takes a lot of complicated legal reasoning and exegesis and appeals to precedent and objections to precedent to establish. It doesn’t exactly spring off the text.

    That said, I’m also dubious that that would make appeals to the Constitution and the statutory law very helpful in political debate, even if they were much simpler than appeals to moral or political principle. Put more simply, this:

    I’m sure most liberals agree that there are fundamental reasons why spying is wrong. But, its far easier to fall back on a constitution than a much more complex philosophical debate.

    … seems like little more than an excuse for intellectual laziness, and, practically speaking, a sure way to degrade political debate. If in practice we short-circuit reason-giving in favor of appeals to the brute force of The Law, then aren’t we fostering exactly the kind of intellectual and moral climate that we should want to avoid, if our goal is to defend people’s liberty from invasion by an authoritarian Law Enforcer?

  4. Roderick T. Long

    Well, there’s a Socratic, dialectical mode of argumentation where you start from what your opponent accepts, and try to argue them from those starting-points to some further commitment. Given that for all too many people in the U.S., a traditional attachment to the Bill of Rights is just about all that still keeps them open to rights-based arguments….

    Now their reason for caring about rights is sucky, but if in many cases that’s pretty much all we have to work with, it seems to me that it will often be dialectically reasonable to invoke the Bill of Rights in political debate (not just in the courtroom) and encourage such folks to choose between their commitment to the Bill of Rights and their commitment to galloping statism. Then ideally their original starting-point, their attachment to this particular historical document, could be kicked away like a Wittgensteinian ladder. By the same principle, if a statist belongs to religion X, then if there are libertarian injunctions in the sacred scriptures of religion X I’m certainly going to quote them to this statist, even if I myself have no attachment to religion X.

· December 2006 ·

  1. Discussed at radgeek.com

    Geekery Today:

    I feel safer already…

    (Via Anarchogeek 2006-12-03.) The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone’s microphone…

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