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Is There Hope for the Rule of Law in America?

10 November 2012

Summary:  As Obama begins his second term, we should remember that his first term was in many ways much like a third term of Bush Jr. Obama institutionalized Bush Jr’s national security policies by making them bipartisan.  This guest post by Brad DeLong shows how far we’ve fallen by looking at how long it took us to build these rights.

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Is There Hope for the Rule of Law in America?

Brad DeLong, Professor of Economics, Berkeley
Social Studies 50th Anniversary Symposium
26 September 2010
Reposted with his generous permission.
Annotations have been added in brackets.

That was the question asked by Alan Gilbert (Prof, Denver U) during the morning panel.

Here is the answer I gave, as best as I can reconstruct it:

The question is: “Is there hope for the rule of law in America?” My answer is: No.

Begin with the assassination of George Villiers, Duke of Buckingham and Prime Minister to King Charles I Stuart, on 23 August 1628. Nobody at the time doubted the king’s power to torture the confessed assassin, John Felton, on the rack — the king’s father James I Stuart had tortured Guy Fawkes and the other Gunpowder Plot suspects. But the king’s power to torture was part of his prerogative powers of state, and Charles I Stuart sought to reserve his prerogative powers for use in more important arenas — that is, to raise money with them.

Thus Charles I asked his judges to authorize the torture of John Felton not as an act of state under the royal prerogative but as part of the process of the criminal law. And let’s let William Blackstone pick up the story at IV, 25, 326 of his Commentaries on the Laws of England:

[T]rial by rack is utterly unknown to the law of England; though once… [the] ministers of Henry IV [Lancaster] … laid a design to introduce the civil law into the kingdom as a rule of government… erected a rack for torture, which was called in derision the Duke of Exeter’s daughter, and still remains in the Tower of London; where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth.

But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of English law, that no such proceeding was allowable by the laws of England …

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“A republic, If you can keep it”

With the Great Revolution of the 1640s the prerogative powers of the monarch of the United Kingdom shrank. And with the Glorious Revolution they shrank again.And with the accession of the German-speaking Hanover dynasty they shrank yet again.

And by 1789, when James Madison and company moved the then-powers of the monarch of the United Kingdom to make them the powers of the President of the United States, there were no prerogative powers left: the President was 100% Chief Magistrate with the power and the duty to take care that the laws be faithfully executed, and 0% princeps legibus solutus {“The sovereign is not bound by the laws”, said by Ulpian, a 2nd century AD Roman jurist}.

So things stood for 200 years — save for Abraham Lincoln’s arrogation of Congress’s Article I §9 power to suspend the “privilege of the writ of habeas corpus in “cases of rebellion or invasion” but only when such suspension was “required” for the public safety. {Like the Korean War, this was done unconstitutionally but later ratified by Congress}

So things stood until John Yoo. Now John Yoo is an interesting case.

In 2000 he was arguing at the Cato Institute that the President’s powers as commander-in-chief were extremely crabbed and narrow — and that President Clinton had, in fact, exceeded his c-in-c powers and undermined the rule of law by ordering American soldiers to obey the orders of a British NATO general. That the president — or that any commander — does not have the power to place American soldiers under allied command would have been a shock to Dwight D Eisenhower, or Harry S Truman, or Franklin D Roosevelt, or Woodrow Wilson, or William McKinley, or indeed George Washington himself.

Yoo’s claim in 2000 had absolutely no warrant in the constitution, in the law, in precedent, or in history. But that is how it is with Yoo.

Sources who should know and whom I believe to be reliable tell me that when his tenure case moved through the University of California at Berkeley, historians objected to his use of history in his published articles: “What the frackity-frack is this?” they asked. “This isn’t history. This isn’t how it happened. This isn’t wie es eigentlich gewesen” {“how it really was”, aphorism by Leopold von Ranke, 19th C founder of source-based history}.

The response of then then-Dean of Berkeley Law School, a response that was convincing to the then-Chancellor of the University of California is said to have been that history plays a special role in legal academia and argument. In legal academia, one’s claims about history do not have to be true, the argument went. Indeed, a major mode of legal argumentation and academic debate is to make false claims about what the law has been in past in the hope that those claims will then shape what the law will be in the future.

By 2001 with a Republican as president John Yoo had reversed field 180 degrees. He was making a very different set of false claims about what the law of America had been. He was then claiming that the president’s commander-in-chief powers contained within them prerogative powers to torture and kill outside of legal procedure that would have astonished George III Hanover, and even exceeded those of William I Conqueror. When William I Conqueror tortured or killed, he agreed owed his barons at least an after-the-fact accounting of why if not any before-the-fact procedural checks.

Backed by John Yoo and company, George W. Bush claimed that he did not owe even an after-the-fact accounting. And Barack Obama holds to the same line.

So I see no hope.

About the Author

J. Bradford DeLong is a professor of economics at the University of California at Berkeley, a research associate of the National Bureau of Economic Research, and was a deputy assistant secretary of the U.S. Treasury for President Clinton.

For More Information

Lessons and even advice from the past:

  1. de Tocqueville warns us not to become weak and servile, 21 July 2008
  2. A wonderful and important speech about liberty, 23 July 2009
  3. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010 — by Edmond Burke
  4. A warning from the past.  Might the American Empire drag down America?, 4 August 2011
  5. George Orwell sends us a note, giving some perspective on our situation, 22 January 2012
  6. Thomas Jefferson saw our present peril. We should heed his warning., 21 April 2012
  7. Rome speaks to us. Their example can inspire us to avoid their fate., 22 April 2012
  8. We’re drifting towards tyranny, again. Jefferson describes our first brush with tyranny., 28 April 2012
  9. Are we following in the footsteps of Athens? Let’s leave the path before we come to the same end., 3 May 2012

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16 Comments leave one →
  1. 10 November 2012 3:32 am

    I once attended a panel discussion at my Alma Mater that included dinner with John Yoo and a number of his colleagues, mostly adversaries, from legal academia. If I recall correctly, the entire group was told, by way of introduction for Yoo’s main presentation, that his own wife calls him “the evil one.”

    As it happens, I have a measure of hope as a result of today’s news about David Petraeus. That’s the kind of scandal that, investigated thoroughly, could drag down quite a few officials, all of them fully deserving of their downfall. As a parochial matter, I have additional hope because my Alma Mater recently gave David Petraeus an honorary doctorate, effectively because his wife is an alumna, and the president who awarded his doctorate is an incredible sleaze who has brainwashed a large part of the college community into following a joint personality cult that he has built around himself and the school’s founder. So I have my fingers crossed for some reform.

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    • 10 November 2012 3:38 am

      On that subject, here’s a transcript of the conferral ceremony in question. It’s pretty rich.

      Speech by William G. Durden (President) at the presentation of a honorary Degree of Doctor of Public Service, honoris causa, to David H. Petraeus. Dickson College, 2012

      Like

  2. Thomas More permalink
    10 November 2012 3:40 am

    No.

    This essay (“The Towering Legacy of George W. Bush”) from The League of Ordinary Gentlemen sums up the sad brutal reality of Shithole America after 9/11:

    … while many of us apparently like W.’s policies — they still poll pretty well — we Americans generally aren’t so comfortable with the sheer fact that we like them. We don’t like what that fact says about us: America used to be a much freer nation, and by that we mean: Most of us at one time knew better. We were more self-confident. At ease. Unsurveilled. A bit more able to trust. We’d defeated the Soviets, defeated the budget deficit, invented the Internet (and let’s not quibble just now about who exactly did it, or how, or with what aims in mind), and we were well on track to get our entitlement systems in order and make them solvent again.

    Then something terrible happened, and we were told that it all had to go away. Confidence and freedom were dismissed as ignorance and naivete, or worse, as evidence that you were on the other side.

    … Imagining that we might be better — that we might do without the constant, free-form authorization of war against any and all; that we might not need Gitmo; that unreviewable targeted killing of American citizens anywhere in the world is an abomination; wow, that we might even be able to balance the budget — all are extremist views now. Not to be taken seriously.

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  3. 10 November 2012 3:52 am

    I vote “yes”. But as a matter of faith, with little evidence to offer in support. And no evidence that you don’t already know.

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  4. gaiasrequite permalink
    10 November 2012 4:40 am

    All that is gold does not glitter,
    Not all those who wander are lost;
    The old that is strong does not wither,
    Deep roots are not reached by the frost.
    From the ashes a fire shall be woken,
    A light from the shadows shall spring;
    — JRR Tolkien, Lord of the Rings

    There is always hope, without it we as a species are lost to the darkness. Though we have and will continue to go through times when it seems all is lost; the fact is, as long as people exist who have a vision for the future and hope to drive them there, we will continue.

    There is yet to be a time in our existence with out scandal, free from those who would bend or break the law to fit their own self serving needs. And more times then can be counted, these people reach the heights of power and inevitably bring all down with them.

    So, because history has a way of repeating it’s self; because any one with any amount of wisdom would tell you there will never exist a time without “evil” or the people it pollutes, because we are perhaps entering or have entered a time when evil seems to be tipping the scale in it’s favor; should we give up? IS THERE HOPE?

    There is always hope, and those who can no longer see it, are already lost!

    Like

  5. Matt D. permalink
    10 November 2012 8:24 am

    I read your first link with quotes from de Tocqueville, and I have a question: How does your support for gay marriage square with de Tocqueville’s observation that the suppression of natural hierarchy among individuals drives societies towards centralized despotism? It is clear enough that the legitimization of same-sex marriage is not a driver of the degeneration of well-defined gender roles, which has been taking place over the last half-century. But it is the direct result of this degeneration, and helps to make it more durable.

    Through the lens of de Tocqueville’s analysis, would not the blurring of male-female distinctions represent the elimination of the last natural focus of authority in the smallest and most basic unit of human organization? I won’t speculate about the observable results of this process, as that is a topic where there is much diversity of opinion. But on a purely theoretical level, using de Tocqueville’s framework, will not the man who can no longer order his family and the woman who can no longer be protected by her man be filled with a thirst for an ever-stronger and more intrusive centralized authority?

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    • 10 November 2012 12:07 pm

      Matt,

      Here we come to deep waters, in which the conservative viewpoint has much to say — if we can find these insights among the trash in which it hides. I suggest turning to Allan Bloom’s Closing of the American Mind, pg 97 -140. I’ll post a long excerpt today.

      In brief, the family is toast in its current configuation. My guess is that the places where this disintegration have advanced most (eg, Scandinavia, Los Angeles) are coasting, support by cultural traditions which no longer have any foundation. My guess is that this is one of our greatest social problems, which the boomers bequeath to future generations much as the Founders did slavery: with hopes it will all work out, but no ideas as to how.

      I agree with de Tocqueville, that the distintegration of the family leads to the growth of the State. Like night follows day.

      This might be the factor unforeseen by Martin van Creveld that not only prevents the decline of the State — but empowers it beyond anything seen so far.

      Like

    • 10 November 2012 4:36 pm

      Speaking of de Tocqueville, the hot book among Chinese Communist Party members is The Old Regime and the Revolution. For details see “China’s Troubled Bourbons“, Minxin Pei (Prof Govt, Claremont McKenna College). Is the CCP the ancien regime, now in its last days?

      Sometimes the books that a country’s top leaders read can reveal a lot about what they are thinking. So one of the books recently read by some of the incoming members of the Standing Committee of the Politburo of the Chinese Communist Party (CCP), the country’s top decision-making body, may come as a surprise: Alexis de Tocqueville’s The Old Regime and the Revolution.

      These leaders – to whom the CCP is about to pass the baton at its 18th congress, scheduled for November 8 – reportedly not only read Tocqueville’s diagnosis of social conditions on the eve of the French Revolution, but also recommended it to their friends. If so, the obvious question is why China’s future rulers are circulating a foreign classic on social revolution.

      Like

    • gaiasrequite permalink
      10 November 2012 6:04 pm

      Matt D gives us an interesting first hand view into the time warp phenomenon; where in the event a society lands on difficult times there inevitably sprouts a group who believe we must blame the hard ship on progressive ideals, then return to a golden era that existed in our past. When it may be more appropriate to say that perhaps the problems of a nation that is, by its very definition meant to be a society of progression, lies in it’s populace who remain stagnant in their beliefs and there for refuse to move forward.

      I often wonder if “men” like Matt would be as willing to return to a time where gender roles were more clearly defined, if that definition reduced him to a prisoner in his own home where he would be treated with the same regard as the sofa or “family” car?

      I often reply to this line of thinking with; perhaps you are residing in the wrong country. Perhaps taking up residence in the middle east would be more befitting of your ideals. A place where “the man who can no longer order his family and the woman who can no longer be protected by her man” is an unknown idea. Perhaps then “men” like Matt, would finally be able to fill the shoes of MAN.

      Though I often say a male who has to dominate to be counted “man” is nothing but a little boy lost and searching for that thing that will finally prove he is a man. If you have to prove you’re a man, chances are, you are not!

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    • 10 November 2012 6:19 pm

      gaiasrequite,

      I think that is a very harsh view of Matt’s statements, which are IMO a legitmate and reasonable question about the great experiment in progress in our society. See what you think after reading the excerpt from Boom, going up at 00 Zulu.

      Like

    • gaiasrequite permalink
      10 November 2012 7:13 pm

      Though I am interested to see this oo Zulu post? I am afraid we have breached a topic that for me has very little room for sway.

      I knew a woman some years ago that would have (in her naiveté) agreed with Matt’s statement. But, as so often happens, life lent her eyes free from the rose colored glasses that impaired her ability to see truth in place of romantic ideals.

      Her opinion has been pretty firmly cemented because of her experiences, that through out history, the majority of men have been and will always be, far more efficient at killing then protecting. And for this, may perhaps, come off as a bit harsh when confronted with (what is to her ) the ridiculous idea that we women need the protection of a man, when in fact, it is to often from them that we need to be protected.

      Like

    • 10 November 2012 7:21 pm

      Let’s hold this discussion for that post. I think Matt is asking more than stating, but perhaps he’ll say more there.

      Like

    • gaiasrequite permalink
      10 November 2012 7:42 pm

      Fair enough:)

      Like

  6. slabinja permalink
    10 November 2012 6:18 pm

    Maybe the question is “Do we still live within a functioning system?” If we do, then there’s hope, if we don’t, then then there isn’t.

    Like

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