Extralegal Power

Wilson IIIn 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:

Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.

Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”

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Achieving America’s Peace: A Conversation with Angelo Codevilla


Angelo Codevilla comes to Liberty Law Talk to discuss his latest book To Make and Keep Peace Among Ourselves and with All Nations. Our conversation focuses on Codevilla’s main argument that American statesmen increasingly fail to understand the nature and purpose of statecraft: the achievement of peace. So what does it mean to achieve America’s peace? To do so, Codevilla insists, requires concrete evaluation of the means and ends necessary to protect American interests. This requires particular judgments about power, interests, and the practial reality we are confronted with. Our practice, for well nigh a century, has been to speak in glittering generalities about America’s role in the world as a force for democratic and humanitarian progress, refusing to recognize the unwieldy consequences that result from applying abstract ideals in a Hobbesian environment. The refusal to be frank about how military victory must be used to achieve a peace on American terms not only produces unending conflicts with no clear idea of victory, but also leads to deep reverberations in domestic politics as coalitions form around perceived patriotic and traitorous courses of action. Post 9/11 politics, anyone?

We also explore what Codevilla perceives as the failures of our major schools of foreign policy. The neoconservative believes that an aggressive America must give a shove to the forces of global democratic progress, while the internationalist has a similar end in view but wants to secure it by reducing American power in the world, harnessing and moralizing our power and interests through an array of multilateral institutions and treaties.  In a different vein, the realist assumes that all nations have the same kinds of interests and pursue the same goals regardless of the ideological cast of regimes and governments. All three approaches have been tried repeatedly, but, Codevilla argues, America’s interests have not been secured. Even though our nation wins its battles and wars, we lose our peace. Where then to look for wisdom in the practice of successful statecraft? That is where the conversation begins.

The Imperial Mount Rushmore

Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.

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The Pen, the Phone—and the Constitution

President Obama and his advisors have told us that he can work around a purportedly obstructionist Congress by using what they claim is legitimate executive authority exercised by “pen and phone.” The phrase is meant to put across the idea that the president can get things done by signing off on various formal and informal executive initiatives, and cajoling Americans within government and without to act according to his vision. White House advisor Dan Pfeiffer, who is credited with inventing the phrase, recently explicated its meaning by observing that in an era of divided government, a Democratic president cannot easily get his way when Republicans control Congress. In order to “move the ball forward” on the president’s agenda, the deployment of “executive power” is required, according Pfeiffer.

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Friday Roundup, January 24th

  • How should contemporary defenders of limited government and the rule of law understand and learn from the New Deal’s revolutionary movement? The current Liberty Law Talk with Gordon Lloyd, co-author with David Davenport of The New Deal & Modern American Conservatism, discusses this question.

 In 1879 . . . he published his essay “Cabinet Government in the United States,” in the International Review. Clearly influenced by his reading of Bagehot, he denounced the inefficiency of the present government by “irresponsible committees” from a “legislature which legislates with no real discussion of its business.” As Wilson saw it, the separation of powers was an obstacle to good government, rather than a guarantor of the independence of its various branches: “To the methods of representative government which have sprung from these provisions of the Constitution, by which the Convention thought so carefully to guard and limit the powers of the legislature, “he wrote, “we must look for an explanation, in a large measure, of the evils over which we now find ourselves lamenting.”

The Physics of Party Government

It took Woodrow Wilson a century and a quarter, and help from Harry Reid, but America now has what Wilson said we needed in 1885: government by a majority party empowered to do whatever it wants to push the country along the paths of progress – just like in Europe. Harry Reid and the Obama Democrats’ unilateral change of rules to make the US Senate run strictly on majority votes simply capped a long process of growth in partisanship that has Europeanized public life in America without changing a word in the Constitution. This is not how Wilson wanted to do it, but the unlovely results are the same.

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A Superfluous Congress

There is not the slightest constitutional pretext for deferring enforcement of unworkable provisions of the Affordable Care Act. By all accounts it is reasonable policy to do so. But the constitutional precedent is profoundly troubling. Congress’ craven capitulation to it is even more so.

No one has noticed in the present case because Congress and the President seem generally to agree on this course. Republicans do not want the law enforced at all, and most Democrats appear to concur in President Obama’s conclusion that more time is needed before certain parts of it should be enforced.

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Of Constitutionalism, Consequentialism and Climate

The president, armed with inherent executive power topped with statutory authority, faced a dilemma: Danger beckoned. Congress alternated between theatrical hems and political haws.  The international position and perhaps security of the United States were at stake.  So he chose the path of boldness—the path down which greatness lies.

Reported in certain journals, that might have been President Bush at the height of the Global War on Terror.  But portrayed in other outlets, it was President Obama bypassing Congress, employing unilateral executive power to regulate greenhouse gases.  Politically, a great distance separates Bush and Obama.  Constitutionally, it is increasingly difficult to tell them apart—and one reason is the theory of the Presidency some conservatives propagated a decade ago and which is now being bent toward purposes that probably make them wish they had remembered the axiom never to endorse any power one would not entrust to one with whom one disagreed. 

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Curbing Campaign Cash

Curbing Campaign Cash

The next Liberty Law Talk is a conversation with Paula Baker about her new book, Curbing Campaign Cash. You might recall former FEC Commissioner Brad Smith’s review of the book in this space. Smith observed that Baker’s book uncovers for the reader the perennial tale of campaign finance legislation and its many untoward consequences that distort a system of fully competitive elections. “Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign finance “scandals.””  As Smith also notes, “Unlike the typical political saga, however, Baker presents the story not as a morality tale of honest government corrupted by big money, but rather as a cautionary story about big government regulation of honest money and the political choices of the electorate.” I hope you enjoy this conversation about one of the first attempts by campaign finance rules and the self-interested incumbents who enforce them to restrict basic constitutional freedoms in the name of equalizing politics.


We Demand to be Ruled: Reflections on a Servile Electorate and its Narcissistic Presidency

It is a logical fallacy and a clinical delusion, and the body politic is suffering from both: magical thinking—the false linkage of causal events, in this case between the president and, well, everything.  Hence the claim—literally childish, as will be seen—that the president personally as well as his policy in the Middle East are somehow to blame for an eruption of rioting against American targets in that region.  The concomitant argument from the Romney camp is that were their man president, the riots never would have happened: a claim that is patently absurd except to those who seriously believe enraged rioters en route to a demonstration halfway around the world actually pause first to ask themselves whether the President of the United States frowns upon their actions.

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