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Enabling Constraints and the Myopia of Bush Administration Policies

Constitutional democracy has a superficial tension between the idea of democratic political self-governance and the idea of constitutional, or liberal, pre-commitments. A constitution is a declaration that certain interests should be beyond the reach of normal legislative activities, while democracy is the belief that the people must have say over the most important issues of the day.

The tensions is real, and has long been a subject of debate among constitutional scholars. Conservatives tend to argue that economic interests should be given higher protection, while liberals tend to argue that issues of identity or social justice should receive that protection. Libertarians think both spheres should be given higher protection, while radical democrats think neither should. The conservative Alexander Bickel coined the term "counter-majoritarian difficulty" as a criticism of what he saw as the intellectually contentious extension of constitutional protection to the idea of privacy rights.

A key development in this debate has been a re-evaluation of the notion of constraint and its impact on governmental powers. Stephen Holmes, a professor at NYU, has been a major contributor to this debate, defending the idea of constitutional liberalism. Holmes, a cohort of Cass Sunstein, has been delivering blistering criticisms of the Bush administration since day 1 (see also his contribution to Jack Rakove's book on the 2000 election). One of his most powerful insights into the paradox of constitutional democracy is the idea that constraints on government can actually strngthen government, by increasing the legitimacy of those actions the state may still take:

Constitutions are bargains. Even absolute kings, usually considered the archenemies of constitutionalism, can see the advantage of striking a deal with potential troublemakers. The slyly manipulative strategy of the Venetian oligarchy included disarming the common citizenry and, more subtly, making them creditors to give them a personal stake in the state's stability. The freedoms and minor powers they devolved upon the commoners, in any case, were justified as serving the interests of the sovereign. This, to repeat, is the central paradox of Bodin's theory of sovereignty: less power is more power. He says it explicitly in what I take to be the key sentence in the Republique: "The less the power of the sovereign is (the true marks of majesty thereunto still reserved) the more it is assured (IV, 6, 517)." In other words, by limiting himself, the sovereign is able to preserve and even strengthen himself. By decreasing his power to command his subjects arbitrarily, he increases his capacity to achieve his concrete goals.
Stephen Holmes, Passions & Constraints, 115 (1995).

This insight has been lost on the Bush administration. They believe that the more things they are able to do, the more power they hold. They don't accept that operating within defined norms increased the ability of the state to effectively use its resources.

The examples are too numerous to exhaustively catalogue. Perhaps the best is the administration's reflexive denigration of the idea of international law. Conservatives consider working through international institutions like the United Nations to be offensive to our sovereignty, undesirable restrictions on our ability to capitalize on our unipolar moment. Actually, though, working through international institutions has been overwhelmingly beneficial to the United States. We are enjoying a unipolar moment because we have, until recently, acted through mulitlateral efforts. Had Bush made his argument to the United Nations, and given any evidence that he was sincere in professing to defend its prerogatives, the landscape of Iraq would look entirely different. We may not have invaded, if weapons inspectors had not found evidence of Iraqi wrongdoing. We may have invaded with a significant coalition, including French, German and Russian support. In either case, the use of American strength would have been more legitimate both in the Middle East and in the rest of the word, and therefore would have been more effective.

Another glaring example of the administration's incomprehension of the relationship between constraints and power is the USA PATRIOT Act. The PATRIOT act was a massive expansion of government power, a repudiation of many of the constraints accumulated through a century of law enforcement and civil liberty conflicts. With a sweeping gesture, the administration discarded that accumulated wisdom and revived the tensions resolved in those historical compromises. The administration can now do more stuff, but everything it does is under a cloud of illegitimacy. Even actions it could have taken without the PATRIOT Act are less legitimate than they otherwise would have been.

Kerry seems to understand.


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