Law, Democracy, and Liberalism

Sometimes one finds two essays written by two different people on two different subjects that illuminate each other. I believe I found such a pair today.

The first is at Unclaimed Territory (and cross-posted to Hullabaloo) by Glenn Greenwald. He writes,

What we have in our Federal Government are not individual acts of law-breaking or isolated scandals of illegality, but instead, a culture and an ideology of lawlessness. It cannot be emphasized enough that since September 11, the Bush Administration has claimed the power to act without any constraints of law or checks from the Congress or the courts. Its view of its own power and governing philosophy is based upon, and perfectly encapsulated by, this single paragraph from the incomparably pernicious September 25, 2001 Memorandum, written by then-Deputy Assistant Attorney General John Yoo:

    1. In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however,

can place any limits on the President’s determinations

    1. as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution,

are for the President alone to make


Awhile back Mr. Greenwald challenged righties to explain “how there can be any limits at all on his power under the theories of Executive Power which they are advocating to argue that Bush had the right to violate Congressional law.” The answers he received can be boiled down to: There aren’t. It is entirely within the President’s discretion which laws he will or will not follow; therefore, there are no limits to his power.

As disturbing as Bush’s power-grab has become, the knee-jerk defense of unlimited executive power coming out of the Right — often from self-styled “libertarians” — is beyond creepy. In Rightieworld, the White House is the sole arbiter of right and wrong. What Bush wants trumps not just Congress, but also the courts.

Glenn Greenwald continues:

The NSA law-breaking scandal cannot be seen as some isolated act. It is merely the most flagrant symptom (thus far) of the fact that we have a President — with three full years left in office — who has claimed for himself the right to ignore Congressional law and who believes that virtually all decisions of any real significance in our country are his “alone to make.” FISA. The National Security Act of 1947. The McCain Amendment. These are all federal laws — laws — which the Administration is openly claiming it has the right to violate.

How could this possibly be defensible in the United States? Do “conservatives” have no principles at all?

Here we come to the second essay, written last June by Michael Bérubé. [Update: Michael Bérubé has corrected me; the post I am quoting was written by John McGowan.]

Republicans have launched a full-scale assault upon democracy at home. Setting aside (for the moment) the simple fact that this assault is about grabbing and using power, it also reflects an impoverished view of democracy, basically one that limits democracy to free elections. In this view, the people ratify a set of leaders–a government–in an election, and, in so doing, gives those leaders a blank check. …

… This understanding of democracy tends toward the plebiscite–and toward the establishment of a strong leader, usually one who promises to sweep aside the complexities, compromises, frustrations, and inefficiencies introduced by parliamentary janglings and an independent judiciary. From Napoleon III and Bismarck in the 19th century to the Governator in the late 20th century, the plebiscite has almost always favored right wing leaders impatient with legal and institutional impediments to forceful action.

There was an interview on tonight’s “Hardball” that illustrated this perfectly; I’ll try to remember to post the transcript tomorrow. Essentially, an apologist for the Bush Regime said that if the people don’t like warrantless searches, in 2008 they can vote for a candidate who promises to get warrants. Until then … tough.

Bérubé McGowan explains that “A free society is one in which there are various centers of power, various positions from which people have the ability to influence decisions.” I might add that the separation of powers written into the Constitution can not lawfully be suspended just because one political party controls all branches of government and finds the separation cumbersome. The Constitution gives powers and authorities to legislative, executive, and judicial branches of government, not to whatever party wins the most elections.

Bérubé McGowan continues:

There is nothing that underwrites the rule of law except the continued practice of upholding it. The law must be reaffirmed anew each and every time it is enunciated and enforced. And the temptation to circumvent the law, to rewrite it to accommodate one’s current beliefs and practices, is also ever present. To pay the law heed is to accept that one’s own virtue is doubtful–or that one’s own beliefs are, in every sense of that word, “partial.” It is their assurance in their own virtue that renders the Republicans most dangerous, most prone to set the law aside when it gets in the way of doing when they know in their hearts is right. Impatience with the law is endemic–and it is the harbinger of extreme politics of either the right or the left. (It is here, of course, that the leftist will leap. But why should we think leftist self-righteousness any more attractive or less dangerous than the rightist variety?)

I think this answers the question of why righties are so blind to their own radicalism, and why they can so casually toss the “rule of law” out the window when it gets in the way of their agenda.

My point is that liberalism, first and foremost, is a set of expedients (mostly institutional and legal) for minimizing tyranny by setting limits to government power. It also tries to prevent the consolidation of power by fostering the multiplication of power. Democracy, in my view, is not worth a damn if it is not partnered with liberalism. Democracy and liberalism are a squabbling pair; they each locate power in a different place–democracy in the people, liberalism in the law–and they aim for different goods: democracy (in its most ideal form) for something like the “general will,” liberalism for a modus vivendi in a world characterized by intractable conflicts among people with different beliefs, goals, ambitions, and values. Neither one trumps the other; both, in my view, are essential ingredients of a legitimate polity.

Liberalism can seem “unnatural,” Bérubé McGowan says, because “It involves self-abnegation, accepting the frustration of my will.” Because liberalism values compromise, liberals can appear to have no strong convictions at all. But, IMO, one of the significant differences between Left and Right in America today is that liberals value the processes and procedures of democracy above any particular agenda, but conservatives place their agenda above the processes. For the sake of fleeting policy victories and an advantage in the next elections, “conservatives” (and I use the word loosely) are undermining the institutional structures of government that have sustained this country for more than two centuries. If those structures aren’t around to sustain future generations — who cares? We’ll all be dead.

What do we make of conservatives who don’t “conserve”? What we make of them is that the American Right has moved off the scale; it has become thoroughly radicalized. In truth, our present Right vs. Left conflict is really a conflict between radicals and moderates. I suspect a lot of Americans are beginning to sense this.

Update: See Lichtblau and Shant, New York Times: “Basis for Spying in U.S. Is Doubted.”


The New York Times catches on to something I’ve been saying for a while:

For proof that criminalizing abortion doesn’t reduce abortion rates and only endangers the lives of women, consider Latin America. In most of the region, abortions are a crime, but the abortion rate is far higher than in Western Europe or the United States. Colombia – where abortion is illegal even if a woman’s life is in danger – averages more than one abortion per woman over all of her fertile years. In Peru, the average is nearly two abortions per woman over the course of her reproductive years.

In all of our endless fighting over abortion law, one never hears the simple fact that making abortion illegal doesn’t stop it. Indeed, as I argued in this post, we don’t know for sure if the rate of abortions in the U.S. is higher now than it was pre-Roe. Estimates of the number of abortions performed in the U.S. in the 1950s and 1960s put the number as high as 1.2 million per year. That’s the same approximate number of abortions performed annually in the United States right now, and in a larger population.

Studies of contraceptive practices in several nations before and after legalization reveal no indication that abortion replaces contraceptive use, as some anti-privacy activists claim. On the other hand, there is copious data that shows making contraceptives easily (and legally) available does lower abortion rates. (See “Sharing Responsibility: Women, Society & Abortion Worldwide” [Alan Guttmacher, 1999, PDF].)

The New York Times editorial continues [emphasis added],

In a region where there is little sex education and social taboos keep unmarried women from seeking contraception, criminalizing abortion has not made it rare, only dangerous. Rich women can go to private doctors. The rest rely on quacks or amateurs or do it themselves. Up to 5,000 women die each year from abortions in Latin America, and hundreds of thousands more are hospitalized.

According to the Center for Disease Control, in the U.S. 14 women died as a result of complications from known legal induced abortion in 1998 and 1999. The mortality rate related to abortion in the U.S. is <1 death per 100,000 abortions. This is a much lower mortality rate than for pregnancy — in 1999, says the CDC, there were 12 deaths resulting from pregnancy per 100,000 live births.

Every time news media carries a story about an American woman dying after an abortion you can count on the anti-privacy army to march forth screaming that abortions are medically risky and must be banned. This, of course, would make abortion a whole lot more risky, but try to explain that to the Fetus People. Just try. It’s like explaining algebra to spinach.

Back to the New York Times editorial:

Latin American women, who are increasing their participation in the work force and in politics, have also become more vocal. Their voice would be much louder were it not for the Bush administration’s global gag rule, which bans any family planning group that gets American money from speaking about abortions, or even criticizing unsafe illegal abortions. This has silenced such respected and influential groups as Profamilia in Colombia. Anti-abortion lawmakers in Washington can look at Latin America as a place where the global gag rule has worked exactly as they had hoped. All Americans can look at Latin America to see unnecessary deaths and injuries from unsafe abortions.

You aren’t going to budge the anti-abortion lawmakers with sordid tales of maternal mortality, of course, because they don’t care if women die. It’s more important to control women’s behavior and punish them for being sexual than to care about their health and well-being. But the majority of Americans favor keeping abortion legal. And making abortion illegal doesn’t stop it. So, one might ask — what are we arguing about, again?

Here’s what we’re arguing about:

Next week the SCOTUS confirmation hearings for Sam Alito will begin. NARAL is sending out a fact sheet on Alito and birth control saying that Alito considers some birth control methods — such as birth control pills, the contraceptive ring, the IUD (intrauterine device), and the birth control patch — to be “abortifacient” rather than contraceptive. He has also argued in favor of requiring women seeking abortions to be given misleading and counter-factual anti-reproductive-rights propaganda. Alito “appears to question the competence of women to make their own choices,” the fact sheet says. “Alito urges that the state become the moral guide of the woman facing a crisis pregnancy, that the bedrock principle of informed consent be twisted beyond all recognition into a political instrument.”

Alito is one more right-wing control freak who doesn’t trust you to live your own life. It’s not about babies (states with the most restrictive abortion laws tend to have higher infant mortality rates than more liberal states). It’s not about women’s health. It’s not about conscience. It’s about control.