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Constitutional Illiteracy, Chapter MMMCXVI

Nat Hentoff on the, ahem, interesting Constitutional doctrine of Michael Mukasey:

In a 2004 article in The Wall Street Journal, Mr. Mukasey argued that while the Constitution's first 10 amendments (the Bill of Rights) are noble, if you give constitutional prominence to these rights of individuals against the government, "then citizens will feel much less inclined to sacrifice in behalf of their government." (Sacrifice their individual liberties?) In that same article, he added, as the Bush administration also has with regard to these perilous times, that "at least in the first instance," citizens should give the government "the benefit of the doubt." (The most secretive government in our history?)

Libertarian author James Bovard, in an interview with Charles Goyette, characterizes this doctrine as the view that the secret meaning of the Constitution is that the government receives the benefit of the doubt when it purposes to do something. And while there are interesting legal and philosophical questions implicated in these controversies concerning the balance of powers, as well as the scope of governmental authority in wartime, it should be sufficient to observe that any Constitutional doctrine which posits "giving government the benefit of the doubt" as a balance to "individual rights inclining people against sacrificing on behalf of their government" (as opposed to, say, family, Church, people, community, etc.) is perilous. Though the phrase will undoubtedly have the ring of the antiquated, a government of limited and delegated powers is not one that ordinarily demands sacrifice of its citizens.

Comments (7)

Is it possible to get a link to the 2004 Mukasey WSJ article?

Here is the editorial in question.

Mukasey's citation of Walter Berns is a dead giveaway, as the burden of the latter's scholarly efforts, as evidenced by his book,Making Patriots, is to demonstrate that the civic virtues are not natural, but inculcated positively by the integrative actions of political authority (government, in a sense, constitutes the nation; and the liberal anthropology of acquisitive instincts and affects is presupposed as a true description of human nature), and have as their object the temporal extension of a reign of propositionalist abstractions. It is on behalf of these - liberty, equality, and probably the free movement of capital ("All to capital we surrender") instead of fraternity - that citizens are expected to sacrifice. In other words, Berns is a neoconservative extraordinaire, believing that the very nature of politics entails the conditioning of the populace to manifest fealty toward etiolated ideals, and a subsequent disciplining of that populace to accept and embrace sacrifice for the extension of those ideals and the institutions that embody them. Such sacrifices will be offered on behalf of both domestic and foreign endeavours, since propositionalism effaces the distinction between the two spheres; the neoconservative wars on behalf of democratic capitalism are the implementation of this ideology.

And our Attorney General disclosed, three years ago, his allegiance to this ideology, which is why he was supported by both the Republican and Democratic establishments.

Incidentally, as originally conceived, if the Constitution had a secret meaning it was that its bonds could be dissolved much as they has been formed, and that any national government which overstepped its delegated powers could anticipate resistance: the tree of liberty is periodically refreshed by the blood of tyrants.

Is there actually a controversy over whether the controversial acts (Patriot, for example) authorized taps, e-mail examination, etc., _without_ a warrant? What I'm getting from the Mukasey editorial is that you do have to have a warrant. ???

All rather confusing to someone like me who is getting all of this second-hand.

Judging on the basis of this mind-numbingly comprehensive Wikipedia article on the Patriot Act and its attendant controversies, most procedures required warrants, while those which were left ambiguous were eventually found unconstitutional by various courts.

However, the objection to Mukasey's Constitutional doctrine does not concern specific conclusions so much as the overall architecture; independent pieces, say, concerning the nature of judicial supervision of specific procedures, may be justified on any number of grounds. What is disquieting about Mukasey, and indeed, the Bush administration generally, is that undertone of Straussian dissimulation, which here assumes the form of the government more or less 'forcing the American people to be free' - freedom being sacrifice on behalf of the 'noble' ideals that the government employs to constitute the people. Berns merely expressed the logic of the neoconservatives' "National Greatness Conservatism" more forthrightly, and Mukasey is on record as having given the edifice a favourable nod.

I'm tired and irritable this evening, and so don't have another way of saying it: this Straussian folderol, this quasi-Machiavellian, Hobbes-wannabe, Rousseauian claptrap is creepy and inconsistent with the American Constitutional tradition. Anyone who espouses it, or is sympathetic to it, is more likely to work mischief with the levers of power.

Sounds like a step down the road of usurpation to me. Sorry, I don't give the benefit of the doubt to an institution with such frightful power as is wielded by our leaders today. I doubt, and doubt, and doubt again. Power corrupts. As Chesterton said, we can be governed by rules or by rulers. Blind trust in our “public servants” is a good way to be ruled by the latter.

What struck me as odd about the Mukasey op-ed was the way that one paragraph didn't seem to fit with the rest of it. The rest of it seemed to be saying, "Everybody is getting hysterical about the unconstituional power of the PATRIOT act, but actually its provisions are neither unconstitutional nor unreasonable." Then suddenly came this paragraph sounding like he sort of regrets the bill of rights. You could argue that this was "the mask slipping" and showing the power-hungry neocon beneath, but I suppose you could also argue that he was just not expressing himself very well for one paragraph.

Well, one could argue that he simply expressed himself poorly, though the trouble with this line of argument is that there literally exists no benign way of invoking the Constitutional eisegesis of Walter Berns in any context, let alone this one. Whatever one thinks of the philosophy of Strauss, and its(de?)volution into a school of thought, Berns is the Straussian who imparts truth to every animadversion ever cast in the direction of Strauss and his epigones. Merely expressing oneself poorly on the relationship of Constitutional rights to governmental power over the people and invoking Berns are mutually exclusive.

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