Posted by Kenneth Anderson:
An Addendum to My FOIA-ACLU Post:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1249864555
What follows was posted up as a final addendum to the FOIA-ACLU post
below; I've been urged to put it up as a separate post. I've hesitated
to do so, partly because I think it will leave numbers of people
thinking, perhaps correctly, that its political heat is excessive -
and also because, due to various schedules, I've written at
high-professor speed - no time to amend, edit, or make comprehensible.
Apologies on both counts. I think there's something of value here,
even badly expressed. I'm leaving the comments off, however, as I
would not have a chance to moderate or even read them.
With reference to what a number of commenters have said
differentiating between collect information and collecting information
on individuals. I will simply say in all candor that I do not
understand that there is a meaningful difference between citizens
reporting "rumors" and such in the abstract to the White House email
address, and reporting on fellow citizens. It has been a theme of many
of the comments, and with all respect, I think it is a difference
without a distinction. Certainly it is the sort of distinction that
civil libertarians have long rejected, as a matter of principle.
The principle, however, is not precisely the one that the commentators
seem to be saying. Commenters on this thread, at least, seem to be
taking the view that you treat everything the administration is doing
in good faith so that unless someone presents evidence of - well, I'm
not clear what for many of our commenters would actually count as
something, but let's say something that would cross the line. Short of
presenting evidence of that, good faith requires that we trust the
government. Other commenters naturally take the opposite view and
claim that the administration acts per se in bad faith.
The American constitutional tradition, I suggest, is quite different
from either - and consists of two not entirely consistent strands.
First, it consists in not trusting the government. The freeborn
citizens of this country have zero obligation to accept the
government's claims that it collects information or does much of
anything else in good faith; the government has the obligation, as a
general presumption - it can be answered, yes, but still a presumption
of popular democracy - that it, not the citizens, has to account. We
honor that ornery, recalcitrant position not because we think it is
always right, but because it is a considerable bulwark, procedural as
well as cultural, against tyranny. That's why, crazy as I personally
happened to think the left was acting during much of the Bush years,
there was a certain abstract honor in it. But - and this is the
crucial but - only as long as you are willing to grant the same to the
other side in the alternation of power.
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The second is a constitutional tradition of doing the opposite of what
I just stated above. One way of defining the role of 'His Majesty's
Loyal Opposition', to express it anachronistically, is to say that it
expresses its views, not by taking the majority's positions as being
in good faith - but in 'suspending public disbelief' in the bad faith
of the majority.
Yes, that's a mouthful - and it is an even more difficult balancing
act. Why? It requires acting as though one takes the majority's
policies, proposals, etc., not in bad faith - which, however, is not
quite the same thing as taking them in good faith, or even as though
in good faith. There are subtle differences in affect, attitude and
action as among these. But the problem of the loyal opposition is to
walk as far as it can disagreeing with the majority's preferred
policy, while still accepting that it is offered in good faith.
Yet at some point, it might not be able to do so - in which case,
well, see the first, above. It won't be possible to give an a priori
rule telling one when that point, in good faith of its own, has been
reached, alas. Hence many political battles of the kind we are seeing
over claims of good and bad faith. But the essential line is not
really between good faith and bad faith - it is when the loyal
opposition should drop a certain public presumption of good faith,
whether it actually believes it or not. This public presumption
matters because it goes to the fundamental public-private divide - the
fact that we sometimes properly act in public in ways that are not
what we privately believe - upon which liberal democracy is premised.
On the matters of policy substance - raise taxes, lower taxes, even go
to war, not go to war, etc. - that should be regarded as a very
drastic step. It has not been so treated, by either party, in recent
opposition dealings with the past several administrations.
However, one thing that the loyal opposition is always right to insist
upon is that the 'traditions of process' be observed punctiliously -
because those are the traditions of office by which the majority
governs and to which the minority aspires, the traditions by which
there is a political community and not simply contending factions. The
office, including its sacralization and legitimation through those
traditions of process, is greater than either.
Again, to be blunt, however, the current administration does not seem
to regard the office as greater than it. At least not in its current
behavior, or up to this still early point of less than a year in
office. One presumes things will change. But, for the moment, the
seeming dispensability of traditions by which the office is understood
by ordinary people to be honored - or dishonored. The honor of the
office includes, in my view, that the office of the President of the
United States not ask one group of loyal citizens to inform on the
indisputedly lawful, constitutionally protected speech-activities
(even if you think there's a difference between that and the citizens
themselves, which I don't) of another group of loyal citizens. The
president of the United States has treated the constitutional speech
of citizens as - phrasing here is important, and it is not the
equivalent of "the same as" - not sufficiently distinguishable from
asking citizens to be on the lookout for suspicious activities that
might turn out to be perfectly legal, but might turn out to be a bomb
on an airplane, but in which there is a legitimate question of sifting
for possible grave and violent criminality. We don't really like it in
the latter case - and shouldn't - but accept some part of it, even
while arguing over its extent, because it is related to a function of
government to protect the physical security of the commonweal against
mass criminal violence, for example, mass terrorism. In the current
situation, however, there is no question of criminality or the need to
have a suspicion thereof. The speech is all constitutionally
protected, and so even that reason of state, and not simply the
desires of a political administration, is quite absent.
Why such a blunder over something that, at least if one is minimally
attuned to the traditions of the office, is fairly obvious? At risk of
giving great offense to many friends and correspondents, the current
administration seems curiously to believe that it honors the office,
rather the other way around. Moreover, the presence of - once again,
so many friends and colleagues and correspondents, so risking offense
- so many luminous and glittering intellectuals does not help the
administration to find a certain humility in the mere office of the
presidency. I imagine one reason is that a not-insignificant number do
not especially see the office as having any special moral standing,
compared, they would say, to a more just and universal institution of
governance. A certain form of cosmopolitanism risks blinding one to
the nuance of actual political communities, and to confuse their
constitutive political elements with their mere politics.
Nor does it help matters that the prevailing intellectual (as
distinguished from strictly political) mood within the administration
is one of pragmatism. Mere ordinary people will tend to believe that
pragmatism is essentially a synonym for "moderate." It was part of the
basis on which the Obama administration was elected - pragmatic
moderates who would rule through the virtues of technocracy.
But pragmatism as a political philosophy in this case is not strictly
a matter of devotion to moderation. It might be. But then it might
not. As a political program, it can have the virtue of lowering the
affective temperatures of politics - as happened, for example, in the
generation in Scotland following the civil wars, for whom pragmatic,
technocratic language ("and now, a Report on the types and numbers of
cattle in Certain Highland Villages") offered a neutral language out
of the wars of religion. But pragmatism is not essentially moderate or
immoderate; pragmatism is essentially unconstrained except by its own
calculations of a remarkably reductionist moral psychology, which is
both its virtue and vice. It arises out of certain versions of
utilitarianism, and in that consideration, such things as the
embodiment of rights within a political tradition means something very
different from what ordinary people might have thought.
This is equally a problem of pragmatists of the left and right, to be
sure. But it is the pragmatism of the left that currently governs.
Pragmatism in pursuit of ends that technocrats in majoritarian power
have determined to be welfare maximizing has license to be radical and
not always moderate, if that is what it takes. What matters are the
costs on the other side. At this very moment, however, it might say,
considerable numbers of people appear to have drawn from that a need
to raise those costs across the country: and yet the pragmatists would
be right in substance but wrong as to what people think they are
doing. They think they are exercising their rights to speak and force
their political representatives - not rulers - to hear them.
Pragmatism's virtue is its pursuit of sense. The problem, however, is
that a democratic polity consists partly of technocratic sense, but
also of sensibility and that sensibility is embedded primarily in its
traditions of process.
(Look, I do understand entirely that half the readers are yawning
because this is all so obvious - whereas the other half simply lack
the receptors for the kinds of moral distinctions I am suggesting; it
is as though, cribbing William James, I were trying to convert them to
the gods of the Aztecs. The whole debate and all these distinctions
don't register, just as certain things quite fail to register with me,
such as the distinction between collecting information on what one's
fellow citizens are saying but not collecting information on them. We
try through mechanisms of cultural assimilation to prevent those gaps
from growing too large, and in our public life, we properly try and
rely upon the suspension of public disbelief about the good faith of
the other. When those run out of grip upon us, we have a big problem.)
See Burke on all of this, but particularly on his notion of the
sublime, to grasp his moral psychology prior to reaching to his (often
quite inconsistent) politics. There are subtle differences of
sensibility in a democratic polity that the prevailing rationalist,
reductionist pragmatism fails to capture, because it insists that all
debates are over sense, rather than sensibility. (See also, a trifle
weirdly, my post below about girls and college admissions, and how
Austen no longer counts; fuse it with this one to grasp why the
de-emphasis on Austen, and by extension the inability to use a
language of politics to express a view on sensibility as well as sense
is a way in which the intellectual class denudes our political
language of the subtlety necessary to capture even the concept of a
"loyal opposition" in a democracy.) La trahison des New Class? Yeah,
something like it.
I leave everyone else to sort it out, as I am going offline. I am
sorry if I offend a sizable number of people with this addendum. I'm
also sorry that it sounds like what it is - a professor writing at
high speed; I don't have time to go back and amend or edit. But my
general view of this is captured by Peggy Noonan's weekend column and
likewise, even more strongly if possible, a passing remark of hers a
week or so ago in a WSJ column, to the effect that we need to revive
the category and analysis of the New Class. Amen to that. Agree with
her or not; she's eloquent and clear - even if I'm not.
But most damagingly to political civility, and even our political
tradition, was the new White House email address to which citizens
are asked to report instances of �disinformation� in the
health-care debate: If you receive an email or see something on the
Web about health-care reform that seems �fishy,� you can send it to
[email protected]. The White House said it was merely trying to
fight �intentionally misleading� information. Sen. John Cornyn of
Texas on Wednesday wrote to the president saying he feared that
citizens� engagement could be �chilled� by the effort. He�s right,
it could. He also accused the White House of compiling an �enemies
list.� If so, they�re being awfully public about it, but as Byron
York at the Washington Examiner pointed, the emails collected could
become a �dissident database.�
All of this is unnecessarily and unhelpfully divisive and
provocative. They are mocking and menacing concerned citizens. This
only makes a hot situation hotter. Is this what the president
wants? It couldn�t be. But then in an odd way he sometimes seems
not to have fully absorbed the awesome stature of his office. You
really, if you�re president, can�t call an individual American
stupid, if for no other reason than that you�re too big. You cannot
allow your allies to call people protesting a health-care plan
�extremists� and �right wing,� or bought, or Nazi-like, either.
They�re citizens. They�re concerned. They deserve respect.
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References
1. file://localhost/var/www/powerblogs/volokh/posts/1249864555.html
2. file://localhost/var/www/powerblogs/volokh/posts/1249864555.html
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