Jonathan Schell … liberal constitutionalist

Jonathan Schell has the lead editorial in The Nation this week on – what else? – the Edward Snowden affair.  The piece is a classic of liberal constitutional analysis, and not in a good way.  How did it happen, Schell wants to know, that the federal government came to launch a massive internet dragnet aimed at downloading information from countless emails and phone calls?  The answer, he says, is by straying from the true path laid down by the founders two-plus centuries ago: “If there is any single political idea that deserves to be called quintessentially American, it is the principle that government power must be balanced and checked by other government power, which is why federal power is balanced by state power and is itself divided into three branches.”  Yet as surveillance mania intensified after 9/11, checks and balances were nowhere to be found.  Casting aside their “appointed constitutional role[s],” the three branches plunged in headfirst.  Instead of objecting when the Bush administration adopted “warrantless domestic surveillance by the NSA,” Congress incorporated some of the program’s worst features into federal law.  The courts failed to protest, with the result, Schell now writes, that “[o]ur system of checks and balances has gone into reverse …. Balanced, checked power has become fused power – exactly what the founders of this country feared above all else.”

If this is what gave the founders shivers back in the 18^th century, then it is our patriotic duty to be doubly terrified today.  Schell’s solution is to undo “this executive usurpation” by returning checks and balances to all their ancient glory:

What’s needed is counterrevolution – an American restoration, returning to and reaffirming the principles on which the Republic was founded.  Edward Snowden … saw that when government as a whole goes rogue, the only force with a chance of bringing it back into line is the public.  He has helped make this possible by letting the public know the abuses that are being carried out in its name. …  He based his actions on the finest traditions of this country, which its current leaders have abandoned but which, he hopes, the current generation of Americans still share.

Instead of going forward, it is necessary to go back to the past.  Presumably, 99 percent of American liberals agree with Schell on this count, as would many Tea Partiers, even if they did not quite share in his enthusiasm for Snowden.  But this just shows how pervasive this sort of retrograde thinking has become.  Liberals and conservatives are of one mind that the founders represented an unsurpassable summit of political wisdom and that it is the fate of us moderns to forever labor in their shadow.  Instead of thinking for ourselves, we must conform to their dictates.  If the founders believed in checks and balances, then we should, too.  If they feared a fusion of powers above all else, then out knees should positively shake at the prospect.  Like Little Red Riding Hood, we must nevert deviate from the path laid down by a long-ago group of slaveholders, merchants, and lawyers.

It is child’s play to pick this strain of argument apart.  Take, for example, Schell’s casual reference to certain ideas as “quintessentially American.”  The phrase is certainly apt when it comes to checks and balances and the like.  But does that make them any better than, say, ideas that are quintessentially French or British?  As all-American as checks and balances are, how do we know they are true?  Because James Madison said so?  Schell’s notion that the public is “the only force with a chance of bringing [government] back into line” makes little sense.  The word “public” is troublesome because it is supra-political.  (The public interest is always said to trump narrow partisan interest.)  But leaving that aside, why would a unified public take charge of America’s out-of-control government only to see its authority sundered into three separate parts?  If “we the people” are the source of all political power in the United States, then it seems that their “appointed constitutional role” is to subdivide their own authority and turn it against itself.  Since a house divided against itself cannot stand, why do it at all?  Why not strive for true popular sovereignty in which the people reign over the whole of society as a single undifferentiated force?

As I showed in The Frozen Republic, constitutional traditionalism of the sort that Schell represents goes back at least to the Elizabethan Age when English government was also divided along legislative, executive, and judicial lines.  (The union of functions under an all-powerful House of Commons would not get underway until the 18^th century.)  Since then, whenever anything has gone wrong, a certain kind of old-fashioned patriot could be counted o[n to cry out that it’s all because those in power have failed to stick to the good old old ways while the various branches have failed to maintain eternal vigilance in defense of ancient liberties.  The solution, invariably, is to restore the “ancient constitution,” as it was known, with all its checks and balances and separation of powers.  It’s a formula that has been applied to everything from the Stamp Act to electronic snooping.  Yet because it is repetitive, boring, and patently ahistorical, people nod their heads in agreement but otherwise pay less and less attention — which probably suits people like Schell fine since it confirms them in their view that the modern world is going to rack and ruin.

One effect of such thinking is to ignore the specifically new things that have contributed to the current crisis.  Rather than separation of powers (or lack thereof), the real problem is a vast acceleration of militarism and imperialism since 9/11 and a corresponding shrinkage of political democracy.  Political debate virtually shut down the moment the first airliner crashed into the World Trade Center.  Journalists who failed to toe the official patriotic line – they hate us because they hate our freedom – were fired, questioning of any sort was essentially prohibited, and the draconian Authorization for Use of Military Force (AUMF) sailed through Congress with only a single dissenting vote (that of Representative Barbara Lee, who was so frightened by the reaction that she refused to talk about it for six months after).  Since then, it has been impossible to criticize the war on terror in any fundamental way and hence impossible to criticize in any fundamental way the repressive apparatus that goes along with it.  The war machine is on automatic pilot as a consequence, with no oversight by Congress, the courts, or even Obama, who by this point seems to be little more than a tool of the NSA and CIA.  The war on terror was supposed to wipe Al Qaeda off the face of the earth, along with its assorted aiders, abettors, and apologists.  Yet no one seems to notice that the U.S. now finds itself effectively allied with Al Qaeda in the struggle to overthrow the Assad regime in Syria.  It is manufacturing the terrorism it has pledged to combat.  One would think that the Congress and the media would be up in arms over this obvious violation of the Bush doctrine that if you aid a terrorist, you’re no better than a terrorist yourself.  Yet there is only silence as the U.S. blunders into yet another Mideast war in Syria.  Americans are so deferential to the past that they have quite forgotten how to think for themselves in the present.