May 17, 2003
THE LATEST EXTRA-LEGAL STANDARD FOR REPUBLICAN REVOLUTIONS
Raw Deal: Why Bush is behaving like FDR, and why he needs to be stopped (Bruce Ackerman, TAP, 5/14/2003)Most successful transformations have been the product of political movements that gained grass-roots support for decades before their final triumph.... But this isn't true of the new politics emerging out of 9-11....
Rather than being the "do nothing" president of historical myth, Hoover in fact desperately tried to fight the Depression -- just not at the cost of smashing the existing constitutional framework of limited government. It was only after this effort at adaptation failed that the country was ready for Franklin Delano Roosevelt's effort to revolutionize constitutional understandings. The New Deal generated a sustained crisis of legality that came to an end only when the president had won a landslide re-election and threatened the Supreme Court in his famous court-packing plan of 1937.
George W. Bush is no Hoover. He is not responding to the new threat by governing within the existing legal framework. His war against terrorism is generating a crisis of legality of Rooseveltian proportions....
As Roosevelt was, Bush should be required to return to the people for re-election before he can claim a mandate to revolutionize constitutional doctrine....
If Republicans sweep in 2004, Bush will follow Roosevelt and use his second term to transform the Supreme Court with judicial partisans of the newly ascendant orthodoxy. In the 2000 campaign, Al Gore failed to convince the American people that there were large differences between him and George Bush. But nobody should doubt that the next campaign will be among the most fateful in American history.
Ackerman's admission that the New Deal created a "crisis of legality," and "smashed the existing constitutional framework of limited government," is welcome. Of course, Ackerman's claims that locking Taliban up in Guantanamo represents a comparable smashing of the legal order are baseless. Numerous federal judges have held the anti-terror actions of the Bush administration to be lawful, and with excellent precedent. The notion that only Presidents who have been re-elected can lock up Taliban is too ludicrous for words.
Ackerman's underlying principle, that revolutionizing constitutional understandings is legitimate for those who win Roosevelt-sized majorities but not those who win Bush-sized electoral college majorities, seems to me a novel and dangerous view. It implies that the grade-school lessons we were taught -- that Constitutional law is changed by amending the Constitution, and that the Constitution leaves broad scope for lawmaking, such laws being changed by Congressional statute -- which have the benefit of procedural clearness and universal acceptance, are to be replaced by a fuzzy process of revision to vague "constitutional understandings" which may be changed by any president with a large enough majority (or a long enough string of electoral victories) -- the standard of "large enough" or "long enough" again being vague. Whose "understandings" are these, by the way? Surely not the understanding of random names from the Peoria telephone book. Presumably they are the understandings of our legal elite. And who has consented to respect this fuzzy process? As far as I know, only Bruce Ackerman. And he might change his mind.
Ackerman, in short, seeks the replacement of a straightforward process of legal change that everyone understands and consents to, with a new and ill-defined process that couldn't help but generate conflict.
I no longer call leftists liberals, because they have abandoned the liberal tradition. The heart of the liberal idea -- and remember that the liberal tradition arose in the wake of a century of religious wars -- was to find a small set of ideas that everyone could agree on, and build consensual government on that limited set of shared values, "agreeing to disagree" on the rest. Our modern-day left seems more nihilist than liberal: where shared understandings exist, as on the standards for electoral victory or legal change, they seek to introduce controversy; where diverse views exist, they hasten to impose their views, a la Roe v. Wade. What has been lost is the humility and moderation of genuine liberalism.
Let us give Michael Dukakis his due: he was the last Democrat who was proud to call himself a liberal. The Democrats won't recover until they rediscover the liberal tradition.