Fein:
Schmookler:
Fein:
I have had interactions, but I have not in personal encounters assailed or deplored their silence. I do not believe that I was born God Almighty to serve as a moral prophet ala John Knox. A few have discerned legality in Bush's illegalities with reason I think are preposterous. But most simply do not believe it their task as private citizens to act as Good Samaritans, especially since the Democrats are intellectually bankrupt.
My speaking out as occasioned a fair share of shrill or vituperative emails, but no face-to-face personal nastiness or ostracism. I do not feel I am encountering a McCarthy-like atmosphere. You never know what kind of business fails to arrive from controversial statements. Whatever price I have paid is ridiculously paltry in comparison to those Lincoln lionized in the Gettysburg Address.
Bush's precedents are dangerous, and will lie around like loaded weapons readily unleashed by any incumbent in times of strife or conflict, e.g., a second edition of 9/11. Political science, however, remains in its infancy. To predict with exactness the ramifications of lawless precedents on the rule of law and liberties would be folly. For instance, FDR's lawlessness in WW II, including the odious internments of Japanese Americans, the lawlessness of McCarthyism, the lawlessness of Jim Crow, the lawlessness of Nixon and Clinton's lying under oath were all serious but have not shipwrecked our constitutional enterprise, at least not yet. But as Justice Brandeis amplified, all government lawlessness is dangerous because it teaches people by its example. We are more likely to lose democracy on the installment plan like the Roman Republic as chronicled by Gibbon than by a military-industrial coup. In addition, we should never be satisfied by simply avoiding being a police state, but as Washington lectured at the Constitutional Convention, we should strive to set a standard to which the wise and honest may repair.With regard to Hamdan, even if the case is narrow, it would not be surprising if Roberts or Alito took the opportunity to expound a particular philosophy or framework for deciding separation of powers issues in times of belligerency or otherwise, like Jackson's concurring opinion in Youngstown. They are both young and may be eager to announce signature constitutional frameworks as their first dramatic imprints on the Court. But that is speculation. As a matter of historical practice or law, they may say as much or as little as they wish.
Schmookler:
It sounds as though while you think "Bush's precedents are dangerous," that very way of putting it suggests that you are not that worried about what the Bush group themselves may do with the power they are grabbing: if you're worried about mostly about "precedent," you are worried mostly about what the present actions may enable some future leaders to do. Is that indeed your greater worry? Your image of the "loaded gun" reinforced that impression: it sounds as though you are more worried about someone else firing off what this group will leave in the room than you're worried about this group taking this loaded gun and shooting our constitutional system dead. Yes?
And the way you bring in FDR, Nixon, McCarthyism, and Clinton -all under the heading of lawlessness-suggests that you are not of the view that there's anything unprecedented about the present assault on the constitutional order. (Whereas I have suggested that there's something so across-the-board and systematic about this assault that it does represent a more thorough-going attempt to dismantle the rule of law than anything previously seen in American history.) Do I read your view of the situation correctly? (If you do not find their conduct more alarming than that, your willingness to break ranks with your fellow conservatives over the Bush lawlessness seems all the more remarkable.)
If you indeed do not worry about the Bush people having loaded the gun so that they themselves can wield and fire it, that may suggest what your answer will be to what I might call my "when the clock strikes thirteen" question, but I would like to ask it anyway.
That name comes from the line, of which I've long been fond, that "When the clock strikes thirteen, one questions not only the thirteenth stroke but also all those that have gone before."
And accordingly, I would like to ask you about whether the Bush lawlessness has had any great impact on how you now perceive other aspects of what this group is about, what it is trying to do, what its moral and ethical nature is, etc. To put my question more specifically: now that you've seen how they have behaved with respect to the law and the Constitution, where would you place your perception of this regime along a spectrum that would run from "they're a fine bunch of good conservatives trying to do good things for good reasons, but just have been careless about this 'rule of law' thing" to "with the benefit of my perceiving their lawlessness, I now see a larger pattern of unscrupulousness that pervades all they do"?
Finally, a question to follow up on an earlier thread which led to your declaring, "I do believe that in the United States at present a high water mark of moral invertebracy has been reached." Do you have any insight or theory concerning why it is that this present time in history would be such a "high water mark," i.e. why the American society/culture would have reached a low in terms of our overall level of moral fiber and moral courage?
Fein:
I am worried about Bush abusing his own precedents along with worries over what his successors might do. At present, the scope of his surveillance or other spying abuses is unknown because they remain largely secret, which is why I have strenuously urged muscular congressional oversight. There may be abuses ongoing that will not be known until years later, just as the abuses discovered by the Church Committee, e.g., illegal mail opening, interceptions of international telegrams, and misuse of the NSA for non-intelligence purposes were not discovered until more than two decades after the fact. If another 9/11 abomination occurred, I think there would be a strong probability that Bush would brandish his precedents to vanquish the Fourth Amendment and to detain citizens based on religion or ethnicity. Everything in life is a matter of degree, and while FDR, Nixon, McCarthyism, and Clinton were occasionally lawless, Bush is systematically so. Thus he is the greater danger. The rule of law can survive a beating once every five or ten years; it cannot survive beatings every five or ten minutes.
In retrospect, I think the Bush administration from the outset believed their loyalty was to their own power or the Republican Party, not to the Constitution or country. I think its intellectual universe is confined to distinctions pivoting on "wedge" issues or strategies calculated to win politically no matter what the cost to the rule of law or constitutional practice. It is temperamentally, intellectually, and morally incapable of statesmanship.
Nations that confront no serious external enemy to remind them of the reasons for their success are inclined to internal rot. That is one lesson from Gibbon's Decline and Fall. After the Soviet Empire disintegrated in 1991, the Superpower status of the United States became unrivalled. We are no longer encouraged in any respect to think about how we became a Superpower and the citizen virtues that underlie great civilizations. Generally speaking, the questions and issues we have explored in these exchanges never make it on the radar screen of the overwhelming majority who neither understand nor care about the philosophical underpinnings of their freedom and prosperity. But these observations are made with a high degree of conjecture. If I knew the answer as to why moral invertebracy in the United States as reached its apogee, I would be a genius, which I am not.
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