Forward: America’s Jewish institutions were failing. Coronavirus hastened their demise.

Joel Swanson writes:

I’m talking about Jewish establishment organizations like the Jewish Federation, the Conference of Presidents of Major American Jewish Organizations, Jewish community centers, lobbying groups like the American Jewish Committee and American Jewish Congress, and explicitly political groups like the American Israel Public Affairs Committee. According to Harold Weisberg of B’nai Brith, many of these organizations explicitly saw their mission in the United States as a substitute for “the great religious discipline which in the past permeated every aspect of individual and communal life” in the Old Country.

And now we may be facing the end of this organizational life…

The development of the post-World War II American Jewish establishment was a process of consolidating a fractious and diverse community into a limited number of organized groups. But it was also a matter of defining a particular set of consensus politics for that community. Historian Arthur Goren has defined it as the “functional consensus” of postwar American Jewish politics, focused first and foremost around two particular political commitments: “assuring Israel’s security and striving for a liberal America.” This “consensus of support for Israel, coupled with a liberal domestic agenda,” would define American Jewish politics for two generations.

Of course, there was a certain amount of tension built into this political consensus from the beginning. American political liberalism defines itself in explicitly non-sectarian terms, as an ideology of civil equality that applies equally to all Americans, regardless of race, ethnicity, or creed. For this reason, Jewish interests in the United States were, in the words of Jack Wertheimer, expressed in explicitly universal terms, “as part of a larger campaign of social action, rather than solely as a parochial cause, to insure that no group in America suffered unfair treatment.”

In other words, American Jews were domestic political liberals because, as a small minority community with a long history of persecution and ethnic oppression, we had an explicit interest in promoting equality for all, in assuring that the white Christian majority did not impose its will over minority communities in the United States.

For this reason, the American Jewish Committee defended its decision to work on behalf of the Black civil rights movement on the grounds that “there is the closest relation between the protection of the civil rights of all citizens and the protection of the civil rights of the members of particular groups.”

The state of Israel, meanwhile, was explicitly founded as a state designed to promote the interests of the Jewish people above those of other communities.

As Daniel Gordis has explained, the state of Israel was never intended to be “an ethnicity-blind, religiously-neutral liberal democracy,” as was the United States, but rather “was always intended to be an ethnic democracy, meaning that one people would be at the center of the country’s commitments.” While the Israeli Declaration of Independence did include a clause insisting the new nation would “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex,” this clause only came after the clause declaring that the state of Israel would “be open for Jewish immigration and for the Ingathering of the Exiles,” defining the safeguarding of one particular ethno-religious community as the state’s reason for being.

So there was a certain amount of conflict built into the postwar American Jewish consensus of supporting liberal democracy at home and ethnic democracy abroad from the start.

Going forward, American Jews are going to have to choose: We can either support a political liberalism of equal rights for all, here in the US, in Israel, and all over the world — or we can support ethnic nationalism. But we can’t have it both ways.

The United States was not founded as a racially blind country. Until the 1960s, Americans saw themselves as dominantly white with a 10-20% black minority. Jared Taylor writes:

Today, the United States officially takes the position that all races are equal. Our country is also committed―legally and morally―to the view that race is not a fit criterion for decision-making of any kind, except for promoting “diversity” or for the purpose of redressing past wrongs done by Whites to non-Whites.

Many Americans cite the “all men are created equal” phrase from the Declaration of Independence to support the claim that this view of race was not only inevitable but was anticipated by the Founders. Interestingly, prominent conservatives and Tea Party favorites like Michele Bachman and Glenn Beck have taken this notion a step further and asserted that today’s racial egalitarianism was the nation’s goal from its very first days.[1]

They are badly mistaken.

Since early colonial times, and until just a few decades ago, virtually all Whites believed race was a fundamental aspect of individual and group identity. They believed people of different races had different temperaments and abilities, and built markedly different societies. They believed that only people of European stock could maintain a society in which they would wish to live, and they strongly opposed miscegenation. For more than 300 years, therefore, American policy reflected a consensus on race that was the very opposite of what prevails today.

Those who would impute egalitarianism to the Founders should recall that in 1776, the year of the Declaration, race slavery was already more than 150 years old in North America and was practiced throughout the New World, from Canada to Chile.[2] In 1770, 40 percent of White households in Manhattan owned Black slaves, and there were more slaves in the colony of New York than in Georgia.[3] It was true that many of the Founders considered slavery a terrible injustice and hoped to abolish it, but they meant to expel the freed slaves from the United States, not to live with them in equality.

Thomas Jefferson’s views were typical of his generation. Despite what he wrote in the Declaration, he did not think Blacks were equal to Whites, noting that “in general, their existence appears to participate more of sensation than reflection.”[4] He hoped slavery would be abolished some day, but “when freed, he [the Negro] is to be removed beyond the reach of mixture.”[5] Jefferson also expected whites eventually to displace all of the Indians of the New World. The United States, he wrote, was to be “the nest from which all America, North and South, is to be peopled,”[6] and the hemisphere was to be entirely European: “… nor can we contemplate with satisfaction either blot or mixture on that surface.”[7]

Jefferson opposed miscegenation for a number of reasons, but one was his preference for the physical traits of Whites. He wrote of their “flowing hair” and their “more elegant symmetry of form,” but emphasized the importance of color itself[8]:

Are not the fine mixtures of red and white, the expressions of every passion by greater or less suffusions of colour in the one [whites], preferable to that eternal monotony, which reigns in the countenances, that immovable veil of black, which covers all the emotions of the other race?

Like George Washington, Jefferson was a slave owner. In fact, nine of the first 11 Presidents owned slaves, the only exceptions being the two Adamses. Despite Jefferson’s hope for eventual abolition, he made no provision to free his slaves after his death.

James Madison agreed with Jefferson that the only solution to the race problem was to free the slaves and expel them: “To be consistent with existing and probably unalterable prejudices in the U.S. freed blacks ought to be permanently removed beyond the region occupied by or allotted to a White population.”[9] He proposed that the federal government buy up the entire slave population and transport it overseas. After two terms in office, he served as chief executive of the American Colonization Society, which was established to repatriate Blacks. Read on.

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The Samson Option: Israel’s Nuclear Arsenal and American Foreign Policy

Here are some highlights from this 1992 book by Seymour Hersh:

* America’s most important military secret in 1979 was in orbit, whirling effortlessly around the world every ninety six minutes, taking uncanny and invaluable reconnaissance photographs of all that lay hundreds of miles below. The satellite, known as KH-11, was an astonishing leap in technology: its images were capable of being digitally relayed to ground stations where they were picked up–in “real time”-for instant analysis by the intelligence community. There would be no more Pearl Harbors.

The first KH-11 had been launched on December 19, 1976, after Jimmy Carter’s defeat of President Gerald R. Ford in the November elections. The Carter administration followed Ford’s precedent by tightly restricting access to the high-quality imagery: even Great Britain, America’s closest ally in the intelligence world, was limited to seeing photographs on a
case-by-case basis. The intensive security system was given a jolt in March 1979, when President Carter decided to provide Israel with KH-11 photographs.

* Through the 1960s, for example, one of the most sensitive operations in the Agency was code-named KK MOUNTAIN (KK being the CIA’s internal digraph, or designation, for messages and documents dealing with Israel) and provided for untold millions in annual cash payments to Mossad. In return, Mossad authorized its agents to act, in essence, as American surrogates throughout North Africa and in such countries as Kenya, Tanzania, and the Congo. Other intelligence agreements with Mossad revolved around the most sensitive of Israeli activities in the Middle East, where American dollars were being used to finance operations in Syria, and inside the Soviet Union, where the CIA’s men and women found it difficult to spy. Some of the Soviet activities apparently were financed by regular Agency disbursements and thus cleared through the appropriate CIA congressional oversight committees-but the complex amalgamation of American financing and Israeli operations remains one of the great secrets of the Cold War.

The Israelis had responded to Admiral Turner’s 1977 cutback in liaison-in essence, his refusal to pay for the continuing operations in Africa and elsewhere-by sharply reducing their flow of intelligence back to Washington. In the Israeli view, the KH-11 agreement in March 1979 was made inevitable not by the success of Camp David but by the CIA’s failure to anticipate the steadily increasing Soviet pressure on Afghanistan in 1978 and the continuing upheavals in Iran. There were large Jewish communities in both nations-many shopkeepers in Kabul, Afghanistan’s capital, were Jewish-and Mossad’s information was far superior to the CIA’s. Most galling to the President and his top aides was the CIA’s embarrassingly inept reporting on Iran, where Shah Mohammed Reza Pahlavi, a U.S. ally of long standing, had been overthrown in February 1979 in a popular uprising–despite a year-long series of upbeat CIA predictions that he would manage to cling to power: The CIA had rejected the Israeli view, provided in a trenchant analysis in 1978 by Uri Lubrani, a former Israeli ambassador to Iran, that the shah would not survive. The CIA had failed the President and forced the American leadership to turn once again to Israeli help in trying to anticipate world events. It was no accident that Lubrani was attached to the Israeli delegation that negotiated the March 1979 KH-11 agreement in Washington.

* French officials reciprocated the Israeli trust: Israeli scientists were the only foreigners allowed access throughout the secret French nuclear complex at Marcoule. Israelis were said to be able to roam “at will.” One obvious reason for the carte blanche was the sheer brilliance of the Israeli scientists and their expertise, even then, in computer technology. The French would remain dependent for the next decade-the first French nuclear test took place in 196~n Israeli computer skills. A second reason for the Israeli presence at Marcoule was emotional: many French officials and scientists had served in the resistance and maintained intense feelings about the Holocaust. And many of France’s leading nuclear scientists were Jewish and strong supporters of the new Jewish state, which was emerging-to the delight of these men-as France’s closest ally in the Middle East.

* Ben-Gurion was treating the Knesset as he always did when it came to issues of state security: as a useless deliberative body that debated and talked instead of taking action. He and his colleagues simply did not believe that the talkative Knesset had a prominent role to play when it came to security issues.

* Like many Jews, Strauss remained hostile to Zionism all of his life, but he won the confidence of his colleagues in the Israeli Atomic Energy Commission by publicly joining them in prayer in Geneva during the 1955 United Nations Conference on the Peaceful Uses of Atomic Energy, at the time the largest international scientific conference ever held.

[LF: I’m sure this prayer was deeply heartfelt.]

* One Jew who served decades later in a high position in the CIA angrily acknowledged that when he arrived, “every fucking Jew in the CIA was in accounting or legal.” The official wasn’t quite right, but even those few Jews who did get to the top, such as Edward W. Proctor, who served as deputy director for intelligence in the mid-197os, were not given access to all of the sensitive files in connection with Israel. Jews also were excluded from Hebrew language training (at one time called “special Arabic”) in the National Security Agency; such training, of course, is a prerequisite for being assigned to NSA field stations that intercept Israeli communications. There was a flat ban in the Navy communications intelligence agency (known as the Naval Security Group) on the assignment of a Jew to a Middle East issue. There was-and still is-a widespread belief among American foreign service officers that any diplomatic reporting critical of Israel would somehow be delivered within days to the Israeli embassy in Washington. In 1963 the Kennedy administration informally agreed with Israel that neither country would spy on or conduct espionage activities against the other. The agreement was sought by American officials, a former Kennedy aide recalled, in an attempt to limit the extent of Israeli penetration of America. The truth is that Jews and non-Jews alike looked the other way when it came to Israel’s nuclear capability.

* Many American Jews, perhaps understandably, believe the question of “dual loyalty” is an issue that should never be raised in public. They fear that any discussion of Jewish support for Israel at the expense of the United States would feed anti-Semitism; the fear seems to be that non-Jews are convinced that any Jewish support for Israel precludes primary loyalty to the United States. A second issue, in terms of American Jewish support for Israel, is that any public accounting of Israel’s nuclear capacity would trigger renewed fears among Arab nations of a worldwide Jewish conspiracy and a redoubling of Arab efforts to get the bomb.

* “As an American citizen he was outraged,” Bartlett recalled, “to have a Zionist group come to him and say: ‘We know your campaign is in trouble. We’re willing to pay your bills if you’ll let us have control of your Middle East policy.'” Kennedy, as a presidential candidate, also resented the crudity with which he’d been approached. “They wanted control,” he angrily told Bartlett.

* One factor obviously was political: a higher percentage of Jews (81 percent) voted for Kennedy in 1960 than did Roman Catholics (73 percent); it was the Jewish vote that provided Kennedy’s narrow plurality of 114,563 votes over Nixon.

* Kennedy’s complicated feelings about Jewish political power and the Israeli issue were summarized in his appointment of former campaign aide Myer (Mike) Feldman as the presidential point man for Jewish and Israeli affairs. The President viewed Feldman, whose strong support for Israel was widely known, as a necessary evil whose highly visible White House position was a political debt that had to be paid.

* Dayan got a boost in his lobbying sometime in the last few months of 1967 when the Israelis learned from American intelligence that the Soviet Union had added four major Israeli cities -Tel Aviv, Haifa, Beersheba, and Ashdod-to its nuclear targeting list. This most sensitive information was apparently obtained unofficially, according to a former member of Prime Minister Eshkol’s staff: “We got it in a nonkosher way,” the Israeli explained, without amplification.

A second boost was supplied by Henry Kissinger, then New York Governor Nelson A. Rockefeller’s foreign policy adviser in the campaign for the Republican nomination. Kissinger met privately in February 1968 with a group of Israeli scholars at the Jerusalem home of Major General Elad Peled, director of Israel’s Defense College, where Kissinger had taught the year before. His message, according to Shlomo Aronson, an academic who has written on Israeli nuclear policy, was electrifying: the United States would not “lift a finger for Israel” if the Soviets chose directly to intervene by, “say, a Soviet missile attack against the Israeli Air Force bases in Sinai.” Aronson, who attended the meeting, quoted Kissinger as making three declarations: “The main aim of any American President is to prevent World War III. Second, that no American President would risk World War III because of territories occupied by Israel. Three, the Russians know this.”

* Yet for Dayan and many of his supporters at Dimona and elsewhere, America had proved its basic unreliability as an ally a month before the Six Day War when it failed to respond to Nasser’s closing of the Strait of Tiran and blockade of Elat. Israeli foreign ministry documents showed that Dwight Eisenhower had promised in writing after the Suez debacle in 1956 that the United States would use force, if necessary, to keep the strait open. Israel called on Johnson to keep that commitment after Nasser’s blockade and felt betrayed upon learning that the State Department considered Eisenhower’s commitment to have expired when Eisenhower left office in early 1961. Only a treaty ratified by the U.S. Senate was binding on subsequent administrations, the Israelis were told. Washington, without knowing it, was playing into the hands of Moshe Dayan and his nuclear ambitions.

* After the Six-Day War, and despite Israeli complaints about the increased Soviet threat in the Middle East, the Johnson administration turned out once again to be a fitful ally in Israel’s eyes, as the President-anxious to avoid a break with the Arab world-joined de Gaulle and embargoed all arms deliveries to Israel for 135 days. America did so, bitter Israelis noted, while the Soviets continued to resupply their allies. Johnson also publicly eschewed any firm commitment to defend Israel in a crisis. He was asked by CBS newsman Dan Rather at an end-of-the-year press conference whether the United States had “the same kind of unwavering commitment to defend Israel against invasion as we have in South Vietnam.” His answer satisfied few Israelis: “We have made clear our very definite interest in Israel, and our desire to preserve peace in that area of the world by many means. But we do not have a mutual security treaty with them, as we do in Southeast Asia.”

* By 1973, according to former Israeli government officials, the Israeli nuclear arsenal totaled at least twenty warheads, with three or more missile launchers in place and operational at Hirbat Zachariah; Israel also had an unknown number of mobile Jericho I missile launchers that had been manufactured as part of Project 700. The missiles had been capable since 1971 of hitting targets in southern Russia, including Tbilisi, near the Soviet oil fields, and Baku, off the coast of the Caspian Sea, as well as Arab capitals. There also was a squadron of nuclear capable F-4 fighters on twenty-four-hour alert in underground revetments at the Tel Nof air base near Rehovot. The specially trained F-4 pilots were the elite of the Israeli Air Force and were forbidden to discuss their mission with any outsider. The long-range F-4s were capable of flying one-way to Moscow with a nuclear bomb; the daring pilots would have to be resupplied by an airborne tanker to make it home.

* The increased security of the early 1970s had one immediate casualty: Minister of Defense Moshe Dayan. Dayan’s standing among his peers in the military and the upper echelons of the Israeli government was far lower than among the public; he was considered overrated as a military leader and suspect because of his incessant womanizing and his financial wheeling and dealing-there was categorical evidence, never officially acted upon, of his appropriation of excavated antiquities for personal use, in direct violation of Israeli law: The main complaint about Dayan, however, was over his propensity to talk: one close army associate declared that “he had the biggest mouth in the world.” The Israeli added: “The feeling was that he was a loose cannon at a time when Israel was in a very precarious situation. We wanted the Arabs to know what we had”-without explicitly saying too much. Dayan, with his public statements and leaks to the press, blurred that tactic. There was another problem, the Israeli added: “Dayan went to bed with everything that moved”-not that unusual a trait among aggressive Israeli military men-“but he was totally capable of meeting a good-looking woman and telling her about Dimona. He and Peres felt like they were almost parents” of the nuclear complex. While Dayan lost no authority, it was eventually made clear to him, the Israeli said, that he was no longer welcome at Dimona; he no longer had a military need to know anything about the Israeli nuclear program, which was being managed out of the prime minister’s office.

* By 1973, Dimona’s success in miniaturization enabled its technicians to build warheads small enough to fit into a suitcase; word of the bomb in a suitcase was relayed to the Soviet Union, according to a former Israeli intelligence official, during one of what apparently was a regular series of meetings in Europe between representatives of Mossad and the KGB. The Soviets understood that no amount of surveillance could prevent Israeli agents from smuggling nuclear bombs across the border in automobiles, aircraft, or commercial ships.

Israel’s leadership, especially Moshe Dayan, had nothing but contempt for the Arab combat ability in the early 1970s. In their view, Israel’s main antagonist in the Middle East was and would continue to be the Soviet Union. Dimona’s arsenal, known by the Kremlin to be targeted as much as possible at Soviet cities, theoretically would deter the Soviets from supporting an all-out Arab attack on Israel; the bombs also would give pause to any Egyptian or Syrian invasion plans.

Israel wasn’t ready when Sadat attacked across the Sinai and Syria invaded the Golan Heights on Saturday, October 6, 1973 -Yom Kippur, the Day of Atonement, the holiest day of the year for a Jew. The first days were a stunning rout. Israeli soldiers were being killed as never before; some units simply fled in disarray from battle. Five hundred tanks and forty-nine aircraft, including fourteen F-4 Phantoms, were lost in the first three days. In the Sinai, Egyptian forces, equipped with missiles and electronic defenses, blasted through the Bar-Lev defense line along the eastern bank of the canal and soon had two large armies on the eastern bank. The initial Israeli counterattacks by three tank divisions were beaten off. On the Golan Heights, Syrian forces, bolstered by fourteen hundred tanks, rolled through Israeli defenses and moved to the edge of Galilee. Only a few Israeli tanks stood between the Syrians and the heavily populated Hulla Valley. Haifa was just hours away. Many Israelis thought it was all over-that, as Moshe Dayan said, “this is the end of the Third Temple.”

The extent of Dayan’s panic on Monday, October 8, has never been fully reported, but it is widely known among Israelis. One of Dayan’s functions as defense minister was to provide the censored media and their editors-in-chief with a daily briefing on the warin essence, to control what they wrote. One journalist, a retired army general, who attended the Monday session, recalled Dayan’s assessment: “The situation is desperate. Everything is lost. We must withdraw.” There was talk in a later meeting of appeals to world Jewry, distribution of antitank weapons to every citizen, and last-ditch resistance in the civilian population centers. It was Israel’s darkest hour, but no withdrawal was ordered. Instead, Israel called its first nuclear alert and began arming its nuclear arsenal. And it used that alert to blackmail Washington into a major policy change.

* One Israeli assumption was that the Soviets, who would learn-as they had learned other secrets inside Israel in recent years–of the nuclear arming, would then be compelled to urge their allies in Egypt and Syria to limit their offensive and not attempt to advance beyond the pre-1967 borders. And a Soviet warning was given, according to Mohammed Heikal, editor of Al-Ahram, the leading Egyptian newspaper, and eminence grise to Nasser and Sadat. In an interview, Heikal revealed that the Soviet Union had told the senior leadership of Egypt early in the war that the “Israelis had three warheads assembled and ready.”

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Why Leaders Lie: The Truth About Lying in International Politics

Here are some highlights from this 2011 book by John J. Mearsheimer:

* I argue that there are sometimes good strategic reasons for leaders to lie to other countries as well as to their own people. International lying, in other words, is not necessarily misconduct; in fact, it is often thought to be clever, necessary, and maybe even virtuous in some circumstances.

* statesmen and diplomats do not lie to each other very often.

* It is important to emphasize that in none of those cases were the president or his lieutenants lying for narrow personal gain. They thought that they were acting in the American national interest, which is not to say they acted wisely in every case. But the fact is that there are good strategic reasons for leaders to lie to their publics as well as to other countries. These practical logics almost always override well-known and widely accepted moral strictures against lying. Indeed, leaders sometimes think that they have a moral duty to lie to protect their country.

* In contrast to the international system, the structure of a state is hierarchic, not anarchic. In a well-ordered state, there is a higher authority—the state itself—to which individuals can turn for protection. Consequently, the incentives to cheat and lie that apply when states are dealing with each other usually do not apply to individuals within a state.

* In domestic politics, however, lying is generally considered wrong, save for some special circumstances, such as when individuals are bargaining over the price at which they would buy or sell a house, or when protecting an innocent person from wrongful harm.

* There is a simple explanation for these different attitudes toward domestic and international lying. A leader has no higher
obligation than to ensure the survival of his country. Yet states operate in an anarchic system where there is no higher authority that they can turn to if they are seriously threatened by another state.

* One can also make a moral case against lying within the confines of a state, because a well-defined community usually exists there, which is not the case in international politics. Thomas Hobbes put the point succinctly in Leviathan: “Before the names of Just, and Unjust can have place, there must be some coercive Power to compel men equally to the performance of their Covenants…. Where there is no Common-wealth, there nothing is Unjust.”

* Absolutists like Immanuel Kant and Augustine maintain that lying is always wrong and that it has hardly any positive effects. Lying, according to Kant, is “the greatest violation of man’s duty to himself.” Utilitarians, on the other hand, believe that lying sometimes makes sense, because it serves a useful social purpose; but other times it does not. The key is to determine when and why lying has positive utility.

* Lying is obviously a form of deception, but not all deception is lying. There are two other kinds of deception: concealment and spinning. Unlike lying, neither involves making a false statement or telling a story with a false bottom line. Concealment and spinning, however, are not the same as telling the truth. These two kinds of deception are pervasive in every realm of daily life, and they cause hardly a word of protest.

* Statesmen and diplomats are rarely punished for lying, especially if they were telling lies to other countries. Probably the only exception to this rule involves cases where it becomes known that a leader lied to his fellow citizens about a policy that
failed in ways that obviously damage the national interest.

* British statesman Henry Taylor: a “falsehood ceases to be a falsehood when it is understood on all sides that the truth is not expected to be spoken.”

* Sir Henry Wotton, the seventeenth-century British diplomat, once remarked that an ambassador is “an honest man sent to lie abroad for the good of his country.”

* Israel lied to the United States in the 1960s about its nascent nuclear weapons program because it feared that Washington would force the Jewish state to shut down the project if it acknowledged what was really going on at the Dimona nuclear complex. “This is one program,” Henry Kissinger wrote in 1969, “on which the Israelis have persistently deceived us.” Another case in point was when the Soviets placed offensive missiles in Cuba in 1963 after they had repeatedly assured the Kennedy administration that they would not take that dangerous step. Their hope was to present the president “with a fait accompli.”

* Anarchy pushes states to be vigilant in their dealings with each other, especially when national security issues are at play. But that is not the case inside most states, where large numbers of people, including educated elites, are predisposed to trust their government, whose most important job, after all, is to protect them.

* Irving Kristol: “There are different kinds of truth for different kinds of people. There are truths appropriate for children; truths that are appropriate for students; truths that are appropriate for educated adults; and truths that are appropriate for highly educated adults, and the notion that there should be one set of truths available to everyone is a modern democratic fallacy. It doesn’t work.”

* Hitler, for example, closely monitored the German people’s thinking about all kinds of issues, and went to great lengths to ensure that his policies enjoyed widespread public support. His regime, as Ian Kershaw reminds us, was “acutely aware of the need to manufacture consensus.”

* Comparing the amount of threat inflation in each of the major powers during World War I illustrates how geography influences the rhetoric that leaders employ to describe their adversaries. There was much less fearmongering about the German threat in France and Russia than there was in Britain and the United States. This is hardly surprising, since the two Anglo-Saxon countries are offshore balancers; in contrast, France and Russia not only shared a border with the Kaiserreich, but they were also fighting the German army on their own territory.

* With the rise of nationalism over the past two centuries, numerous ethnic or national groups around the world have established or have tried to establish their own state, or what is commonly called a nation-state. In the process, each group has created its own sacred myths about the past that portray it in a favorable way and portray rival national groups in a negative light. MIT political scientist Stephen Van Evera argues that these chauvinist myths “come in three principal varieties: self-glorifying, self-whitewashing, and other-maligning.” Inventing these myths and purveying them widely invariably requires lying about the historical record as well as contemporary political events. “Historical error,” as the French political theorist Ernest Renan succinctly put it, “is a crucial factor in the creation of a nation.”

The elites who dominate a nation’s discourse are largely responsible for inventing its myths, and they do so for two main reasons. These false stories help fuel group solidarity; they help create a powerful sense of nationhood, which is essential for building and maintaining a viable nation-state. In particular, these fictions help give members of a national group the sense that they are part of a noble enterprise, which they should not only be proud of, but for which they should be willing to endure significant hardships, including fighting and dying if necessary.

* The creation of national myths, however, is not simply a case of elites concocting false stories and transmitting them to their publics. In fact, the common people invariably hunger for these myths; they want to be told stories about the past in which
they are portrayed as the white hats and opposing nations as the black hats. In effect, nationalist mythmaking is driven from
below as well as from above.

* In the wake of World War II, for example, German elites created the myth that their military—the Wehrmacht—had little to do with the mass killings of innocent civilians on the Eastern Front during that brutal war. It was said that the SS—which represented a much narrower slice of German society and was closely identified with Hitler—was largely responsible for those vast horrors. The Wehrmacht, according to this legend, had “clean hands.”

The United States largely bought into this false story during the early years of the Cold War, because it was then working closely with former Nazis, Nazi collaborators, and former members of the Wehrmacht, and also because it was committed to rehabilitating the German army and making it an integral part of NATO. Not surprisingly, as Christopher Simpson notes in his book about Washington’s recruitment of Nazis after Word War II, “a review of the more popular histories of the war published in the West during those years, with a few lonely exceptions, leaves the distinct impression that the savageries of the Holocaust were strictly the SS’s responsibility…”

* It is also sometimes feasible for a state with an influential diaspora to export its myths to the countries where the diaspora is located. Perhaps the best example of this phenomenon involves Israel and the American Jewish community. There was no way that the Zionists could create a Jewish state in Palestine without doing large-scale ethnic cleansing of the Arab population that had been living there for centuries. This point was widely recognized by the Zionist leadership well before Israel was created. The opportunity to expel the Palestinians came in early 1948 when fighting broke out between the Palestinians and the Zionists in the wake of the UN decision to partition Palestine into two states. The Zionists cleansed roughly 700,000 Palestinians from the land that became Israel, and adamantly refused to let them return to their homes once the fighting stopped. Of course, this was a story that cast Israel in the role of the victimizer and would make it difficult for the fledgling state to win friends and influence people around the world, especially in the United States.

Not surprisingly, Israel and its American friends went to great lengths after the events of 1948 to blame the expulsion of the Palestinians on the victims themselves. According to the myth that was invented, the Palestinians were not cleansed by the Zionists; instead, they were said to have fled their homes because the surrounding Arab countries told them to move out so that their armies could move in and drive the Jews into the sea. The Palestinians could then return home after the Jews had been cleansed from the land. This story was widely accepted not only in Israel but also in the United States for about four decades, and it played a key role in convincing many Americans to look favorably upon Israel in its ongoing conflict with the Palestinians. Israeli scholars, however, have demolished that myth and others over the past two decades, and the new history has slowly begun to affect the discourse in the United States about the Israeli-Palestinian conflict in ways that make at least some Americans less sympathetic to Israel’s past and present actions toward the Palestinians.

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Constitutional Dictatorship: Its Dangers and Its Design

Here are some highlights from a 2010 paper in the Minnesota Law Review by two Yale University law professors, Sanford Levinson and Jack M. Balkin:

“I’m the commander-see, I don’t need to explain-I do not need to explain why I say things. That’s the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don’t feel like I owe anybody an explanation.” – George W. Bush

If Americans know one thing about their system of government, it is that they live in a democracy and that other, less fortunate people, live in dictatorships. Dictatorships are what democracies are not, the very opposite of representative government under a constitution.

The opposition between democracy and dictatorship, however, is greatly overstated. The term “dictatorship,” after all, began as a special constitutional office of the Roman Republic, granting a single person extraordinary emergency powers for a limited period of time. “Every man the least conversant in Roman story,” remarked Alexander Hamilton in The Federalist No. 70, “knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator” to confront emergencies caused by insurrection, sedition, and external enemies. No political constitution was well designed, Hamilton believed, unless it could confront emergencies and provide for energetic executive powers to handle them. (Footnote (FT): Hamilton’s point was that Rome did not lose its “republican” character because it used dictatorships in emergencies.)

Under this view, dictatorship-the power of government officials to act on important matters free of accountability or timely legal checks-is not the opposite of democracy-or what our Constitution calls a “Republican Form of Government.” It is an institutional feature within constitutional democracies that can and should be employed to perform valuable civic functions. From this perspective, “dictatorship” becomes-as it was in the early Roman Republic-a term of description rather than a term of opprobrium.8 It refers to institutions and powers of emergency government that constitution makers might establish to serve the public interest. Indeed, if the institutions are properly designed, “dictatorship” might even have positive connotations-think only of the praise heaped on the legendary Cincinnatus.

* For the Framers, democracy was not the antithesis of dictatorship, either as a logical or an empirical matter. Democracy was a force that always had to be checked, and its passions cooled, in order to realize the benefits of republican government. Every republic known to the Framers—many of whom were steeped in ancient history—had eventually broken down and led to government by a strongman such as Julius Caesar. The lesson of the past seemed to be that the natural progression of popular governments was toward demagoguery and eventually tyranny; the most obvious example to the founding generation was the ill-fated English Revolution in 1640 and the rise of Oliver Cromwell as Lord Protector.

* in the liberal democracy of Great Britain, Winston Churchill would replace Neville Chamberlain as Prime Minister in May of 1940, and Britain’s political parties would agree to suspend the (unwritten) constitutional norms of parliamentary elections until the end of the war. Although still officially a democracy, there was no election in Great Britain between 1935 and 1945.

* A sovereign dictator uses a political crisis to overthrow the existing constitutional order and found a new one. A commissarial dictator, by contrast, is constituted by and given power by the existing political order; the dictator exercises power temporarily in a crisis in order to save the regime and return to the status quo as soon as practicably possible.

* Clinton Rossiter’s brilliant and troubling book, Constitutional Dictatorship: Crisis Government in the Modern Democracies, studied the responses of France, Great Britain, Germany, the United States, and ancient Rome to emergencies, real and perceived, including those generated by the Great Depression and World War II. Some of these emergencies involved problems of national security, and some were economic crises, including, of course, economic dislocations generated by war and its aftermath. Rossiter concluded that one constant in all the examples of emergency government he studied was the decision to adopt some form of dictatorship, validly legal or otherwise.

* Although we often oppose emergency to normal times, emergency and the problems of emergency government are always with us.

* if we assumed (which, thankfully, is not the case) that the American President has the power to initiate war, commandeer funds and resources for war, and conduct war at any time for any reason in any manner he pleases, he would be a constitutional dictator with respect to war and all matters related to war. That is because he would combine the
right to assess the need for military action with the power to carry it out and with the sole right to judge whether what he did was lawful. (He would not be a dictator with respect to a wide range of other matters, including, for example, environmental protection.) To the extent that the President may create rules in a certain area, apply them, and execute them on his own without the ability of anyone else in the system to check him, he is a law unto himself.

* Carl Schmitt offers perhaps the most chilling analysis of all. Although he recognizes the possibility of commissarial dictatorships, where the ultimate goal of dictatorship is restoring the status quo, he assumes that elements of the sovereign dictatorship always lurk in the background, waiting to emerge and to transform any existing political order. No matter how well designed a constitutional system might be, the true sovereign will always be able to escape the confines of that design and make exceptions to it.

* Emergency, or at least claims of emergency, are the standard cause and the standard justification for creating dictatorships.

* Machiavelli argued that republics should plan for emergency allocations of power in advance. Does the American constitution meet Machiavelli’s test? Does it adequately build the possibilities of emergency into its design, to avoid the dangers of inertia, impotence, and deadlock yet still preserve republican government? Recall Chief Justice John Marshall’s famous statement in M’Culloch v. Maryland that “[the] constitution [is] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” 95 Notably, the word “crises” is italicized in the original opinion. Nevertheless, the text of the American Constitution is remarkably devoid of specific clauses that give government officials emergency powers. The most relevant example is the Suspension Clause, which allocates to Congress (contra the views of Abraham Lincoln) the power to suspend the writ of habeas corpus, but only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” Moreover, the Suspension Clause says nothing about other kinds of dangers, for example economic meltdowns, fires, floods and hurricanes, or even the invasion of a drug resistant virus. Nevertheless, constitutional emergencies may arise from many different sources.

* The first decade of the twenty-first century has made us all too aware of the various dangers that can plague our social orders; even the cost of terrorist attacks may pale in comparison to the damage wrought by tsunamis, hurricanes, earthquakes, or dangerous viruses. Thus in 2009, the President of Mexico, Felipe Calderon, placed the entire country under a “state of emergency” because of the potential swine flu pandemic. As John Ackerman, chief editor of the Mexican Law Review has explained, this serves to: “concentrate political power in his hands…. [President Calderon] has authorized his health secretary to inspect and seize any person or possessions, set up check points, enter any building or house, ignore procurement rules, break up public gatherings, and close down entertainment venues. The decree states that this situation will continue ‘for as long as the emergency lasts.’. . . This action violates the Mexican Constitution, which normally requires the government to obtain a formal judicial order before violating citizens’ civil liberties. Even when combating a ‘grave threat’ to society, the president is constitutionally required to get congressional approval for any suspension of basic rights. There are no exceptions to this requirement.”

Ackerman notes that Latin America has a “long history of using states of emergency as ploys to … return to authoritarianism.”

* The most important place we might find elements of constitutional dictatorship in the United States is in the construction of the modern presidency and the executive branch more generally. The Constitution says that the President is vested with “the executive Power” of the United States105 and is “Commander in Chief” of the armed forces. It also says, notably, that “he shall take Care that the Laws be faithfully executed.” The modern President is far more powerful, and has far more resources at his disposal, than the Framers could possibly have imagined. To give only one example, the President is now commander-in-chief of a standing army of over a million people, with forces stationed all over the world, armed with weapons that no one in the eighteenth century could have envisioned. As the United States has become a global power, and as government has taken on increasing responsibilities—to meet the increasing expectations of its citizens—the presidency has gained ever greater power and discretion. Both the administrative and
regulatory state on the one hand, and the National Security State, on the other, offer plenty of opportunities for decisive action, whether it be bailing out financial institutions, announcing bank holidays, imposing quarantines, seizing contraband merchandise, intercepting communications, engaging in covert operations, bombing overseas targets, or moving American troops into harm’s way.

* Effective accountability may be lacking even if the President’s actions are public. Accountability is particularly problematic, however, if a President can keep his most controversial actions secret using the excuse of national security, if he enjoys multiple constitutional privileges against suit, if courts regularly defer to his
judgments about national security, and if Congress lacks effective oversight mechanisms to check his adventures.

* A President can be a constitutional dictator, then, to the extent that he is effectively insulated from hindrance and accountability with respect to a certain set of issues. The most obvious examples concern war, foreign policy, intelligence, and covert operations, but, as we shall see later on, the modern administrative state offers a number of opportunities in the domestic sphere to deal with economic meltdowns, health crises, floods, fires, and other domestic disasters.

* By the time Lincoln took the oath of office on March 4, 1861, several states had already seceded, joined by several more after the firing on Fort Sumter on April 12. Nevertheless, Lincoln delayed calling Congress into session until July 4. “The eleven weeks between the fall of Sumter and July 4, 1861,” Rossiter wrote, “constitute the most interesting single episode in the history of constitutional dictatorship. The simple fact that one man was the government of the United States . . . makes this the paragon of all democratic, constitutional dictatorships.”

Lincoln was quite busy during this period. He goaded the South into beginning the war by resupplying Fort Sumter; he unilaterally decided to initiate a legally debatable blockade of all Southern ports; and then, most (in)famously, he suspended habeas corpus,119 claiming that since Congress was away, somebody had to make the decision, and he was just the person to do it. Like any commissarial dictator, Lincoln argued that he acted only to save the republic, not to found a new regime, and that his actions, even if they appeared illegal, were all calculated to that end… Lord Bryce wrote that Lincoln was “almost a dictator . . . who wielded more authority than any single Englishman has done since Oliver Cromwell,” and Arthur Schlesinger, Jr. recounts Lincoln’s Secretary of State William H. Seward “exuberant[ly]” telling a correspondent for the London Times that “[w]e elect a king every four years and give him absolute power within certain limits, which after all he can interpret for himself.”

* the Framers recognized the danger that the emergence of tyrants posed to republics and adapted the impeachment process in part as an alternative to the traditional remedy of assassination.

* Presidents Truman, Eisenhower, and Kennedy. Each of them received advice from high-ranking military officers and other advisors that the United States should use its nuclear
monopoly (in the case of Truman131) or its advantage in arms (in the case of Eisenhower and Kennedy) to launch a preemptive attack on the Soviet Union and bring an end to what would then be a not-so-Cold War. (FT: Eisenhower’s advisors, who believed that the Soviets would soon develop a hydrogen bomb, advocated a preemptive strike against the Soviet Union while the United States still enjoyed a preponderance of atomic power, even if a few million Americans might be killed in the process.)

* Whether or not the 9/11 terrorist attacks “changed everything,” they certainly provided everything that a would-be constitutional dictator might wish for. Congress readily ceded broad new powers to the President, in the September 18, 2001 Authorization for Use of Military Force (AUMF),135 the USA PATRIOT Act of 2001,136 the Military Commissions Act of 2006,137 the Protect America Act of 2007,138 and the FISA Amendments Act of 2008.139 Indeed, every time the President asked for broad new authorities from Congress, he received them.140 What is remarkable is that given this record of acquiescence, the Bush Administration tried to grab still more discretionary power, through secret programs that violated existing law, and through theories of the President’s Article II powers that, it claimed, allowed the President to disregard any congressional regulations of his powers as commander-in-chief.

* Congress has been willing to delegate increasing amounts of power to the President in both domestic and foreign affairs over the years; and it is well worth asking whether the Constitution imposes any significant limits on this delegation.

* FDR’s successor, Harry Truman, began the use of atomic weapons in warfare;149 more important for the development of constitutional law, he unilaterally ordered the American military to resist the North Korean invasion of South Korea in June 1950.150 This was the first major war that the United States fought that did not receive the imprimatur of a congressional declaration. Historians and constitutional analysts increasingly view the Truman presidency as a crossing of the Rubicon toward the President’s unilateral power to order military force anytime and anywhere in the world. Truman also oversaw the creation of the modern National Security State, featuring permanent standing armies strewn around the globe and the creation of the Central Intelligence Agency, with its secret budgets, covert operations, and often tenuous relationship to human rights and the rule of law.

* The privilege to hide government operations from courts and from the general public as state secrets is an essential tool in the kit of any would-be dictator, and there is no reason to believe that the Obama Administration has repudiated it.156 It is perhaps even more valuable than the suspension of habeas corpus, which only allows the President to detain specific individuals.157 A broad state-secrets privilege ensures immunity from judicial scrutiny in a wide swathe of cases where the President may plausibly claim that national security requires complete judicial abstention. Usually he does not even have to support the claim with evidence, for that might undermine the security he seeks to
maintain.

* Kennedy’s acolyte Theodore Sorenson reports that at the time Kennedy estimated the odds of nuclear war at one in three. Interestingly enough, Abram Chayes, in his flattering portrayal of Kennedy’s conduct during the Crisis, did not suggest that there was anything amiss in Kennedy’s risking nuclear annihilation. Kennedy’s behavior seems even more potentially reckless if one accepts the argument made at the time—in secret, of course—by Defense Secretary Robert McNamara that the Cuban missiles in fact posed little or no
threat to actual American security. After all, the United States had an overwhelming nuclear stockpile and Soviet leaders surely believed that the United States would use it in response to any missiles fired from Cuba…

One of the reasons that Kennedy found himself in such a delicate situation was the fact that constitutionally required elections were about to take place for Congress, and Republican New York Senator Kenneth Keating, among others, was denouncing him for being soft on Soviet penetration of Cuba. Kennedy needed to retain healthy Democratic
majorities in both the House and Senate because he could not always depend on Southern Democrats to support his “New Frontier” agenda. Kennedy was also concerned about
his prospects for reelection in 1964.

* The central idea of constitutional dictatorship, after all, is that the President does not seize power.192 Rather, his power is bestowed on him, either by the Constitution directly, or, more likely, by framework statutes and authorizations passed by Congress. Presidents (or more correctly, the Presidents’ lawyers) tend to read these statutes and authorizations as broadly as possible, so that the President can have as free a hand as possible to save the nation. In fulfilling these authorizations, the President creates new institutions and mechanisms that, in turn, bestow new kinds of authority and new kinds of power. Thus, the great mistake of the Bush Administration was the assumption that presidents should go out of their way to claim power unilaterally. It is far more effective to ask for power and have it given. Then one can proliferate the powers of the office
through making broad constructions, through building institutions, and through issuing regulations.

* Nikita Khrushchev paid for his commendable caution [regarding the Cuban Missile crisis] with his job, which suggests a degree of accountability that made the Soviet leader significantly less of a full-scale dictator than most Americans assumed.

* John Yoo, the author of the notorious “torture memos,” has argued that, despite American objections to King George III, the President still enjoys the powers possessed by the English monarch at the time of the American Revolution. Although Parliament retained the powers of the purse, Yoo explains, the King possessed unbounded discretion over the use of military force.

* The most obvious elements of presidential dictatorship tend to be concentrated in areas of foreign policy, intelligence gathering, covert operations, and warfare. Presidents exercise far less unilateral control in domestic politics.

* President Bush began to lose political momentum precisely because he failed to act swiftly or deftly in the face of a domestic disaster, Hurricane Katrina. Since the Calling Forth Act of 1792, Congress has repeatedly created framework statutes that authorize presidents to respond to domestic emergencies.

[LF: Trump lost momentum in 2020 when he failed to act swiftly and deftly in reaction to Covid.]

* one thing dictators must do in emergencies is detain people who pose threats to public safety. The Public Health Service Act gives the Surgeon General, subject to the
approval of the Secretary of Health and Human Services, the authority “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Accordingly, the Surgeon General may order “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” The grant of authority may even provide for “apprehension, detention, or conditional release of individuals” if necessary “for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive Orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General.” Or consider the steps the executive may take to meet the threat of imminent economic collapse.

* Bush’s actions match the traditional pattern. First, the President declares a crisis or emergency, then he asks for new powers, and, finally, Congress grants the request. However, Bush also sought to obtain additional emergency powers without asking for congressional approval in three areas: his policy on detentions and interrogation practices, his creation of military commissions, and his secret domestic surveillance programs. This was his great mistake, and the source of some of the most ardent (and well-deserved) criticism. Bush received pushback from the public and from the courts because he deviated from the traditional script for American Presidents seeking emergency authority. Instead of asking Congress for emergency powers, he simply asserted that he already possessed all the constitutional and legal authority he needed.

* Dictatorial power is almost inevitably dispersed in the modern administrative state. Policy questions in the modern state increasingly require specialized expertise. Even the
most able of presidents likely lack the detailed knowledge necessary for quick and decisive action. Consider this New York Times article, entitled Fed Chief Shifts Path, Inventing Policy in Crisis:

“As chairman of the Federal Reserve, Ben S. Bernanke has long argued that a central bank should base its policies as much as possible on consistent principles rather than seat-of-the-pants judgment. But now, as the meltdown in credit markets threatens major institutions on Wall Street and a recession appears inevitable, Mr. Bernanke is inventing policy on the fly.

“Modern monetary policy-making puts a lot of weight on rules, but there is no rule book for an economic crisis,” said Douglas W. Elmendorf, a senior fellow at the Brookings Institution and a former Fed economist.

On Friday, the Federal Reserve seemed to toss out the rule book altogether when it assumed the role of white knight, temporarily bailing out Bear Stearns, one of Wall Street’s biggest firms, with a shortterm loan to help avoid a collapse that might send other dominoes falling.

At first glance, this seems like a remarkably Schmittian description of the role played by the Federal Reserve Board—and, more particularly, its Chair, Ben Bernanke. Schmitt’s “sovereign” is the person who can successfully define something as a “crisis” and then basically do whatever he or she thinks necessary to meet the crisis.263 But Ben Bernanke is not a sovereign dictator. He is a commissarial, or constitutional, dictator. He enjoys his power courtesy of congressional statute, the residue of a previous Administration’s demand for discretionary power in the face of a perceived emergency.

* The modern administrative state features a distributed dictatorship, spreading unreviewable power among a variety of different agencies, czars, and bureaucrats. In the economic crisis of 2008, President Bush was largely a figurehead, whether by choice or by circumstance. The Treasury Secretary and the Chairman of the Federal Reserve
made the key executive decisions.

The constitutional theory of the unitary executive, which was much touted during the Reagan Administration, is designed to preserve the President’s formal ability to control,
oversee, and hold accountable all members of the executive branch. It is no accident that this theory began to gain currency after the work of the executive branch became so variegated and specialized, and following the most dramatic ideological shift in the White House since Roosevelt’s replacement of Hoover in 1933. President Reagan’s lawyers were attracted to the theory of the unitary executive precisely because they felt, perhaps for good reason, that the administrative state was beyond their control, particularly with regard to civil service protected holdovers from previous administrations might not have shared the Reaganites’ ideological preferences. Moreover,
Stephen Skowronek has pointed out that the unitary executive theory arose during a period when the President and Congress were usually controlled by opposite parties: defenders
of a strong presidency viewed increased control over the bureaucracy as the best way to promote their policy goals without interference from opponents of the President. The theory of the unitary executive is a convenient fiction offered by lawyers to allow presidents to consolidate power within increasingly complex administrations that necessarily feature multiple centers of power and sources of authority. Asserting that the President actually has control over the entire Administration is a bit like the courtiers of King Canute who tried to flatter him by claiming that he could direct even the progress of the ocean’s tides.

In practice, of course, the President cannot effectively control many of the discretionary decisions made by lower level officials. And in other circumstances, independent federal agencies and civil service protections prevent the President from immediately firing people who exercise discretion. The theory—or rather, the theoretical fiction—of the unitary executive tries to deal with these realities in three ways. First, it denies that some of these realities exist. Second, it uses the theory to try to consolidate power and avoid oversight in certain circumstances. Third, when pressed, it claims that still other features—like independent agencies—are unconstitutional. Behind the rhetoric of the unitary executive, however, is the reality of increasingly disaggregated forms of power and expertise in the modern executive branch. In the modern administrative state, unilateral decisionmaking power is distributed as often as it is concentrated in a single individual.

* Barack Obama, like George W. Bush before him, began his presidency by taking advantage of the opportunities presented by emergency; he pushed for a sizeable economic stimulus package to deal with an economic crisis. Or, more correctly, he took advantage of the President’s ability to define the situation before him as an emergency and assert that bold, decisive action was necessary to avert the particular sort of crisis that he claimed the nation faced. This feature of the characteristic pattern—the President’s characterization of the situation— is quite important. As President Obama’s incoming Chief of Staff, Rahm Emanuel, famously put it: “[y]ou never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.”

* the President, because of his preeminent political position, has a unique power in the American system of government to define the nature of political reality. This makes
it difficult, if not impossible, for Congress to refute his analysis of the situation as involving an emergency; and this, in turn, greatly reduces Congress’s ability to refuse his requests for additional authority.

The 9/11 attacks, for example, allowed George W. Bush to define the situation before the nation in existential terms as a war of national survival (rather than as part of a continuing problem of terrorist attacks) and to define himself as a war president, thus purporting to activate all of the powers that a president enjoys in time of war. His greatest achievement was convincing Americans to believe in the existence of a war on terror, a war with no defined battlefield and no defined enemy. Since both of these elements were lacking, the President could define the war as taking place literally everywhere, including within the United States.288 And since the enemy was a shadowy network of loosely connected terrorist organizations, the President could plausibly assert (or imply) that almost any country and any (foreign) organization was connected to Al
Qaeda or contained Al Qaeda operatives.289 Having framed the situation as an existential crisis, Bush insisted that he needed vast powers to detain, interrogate, and make war;290 he pointed to Iraq and insisted that it was a continuation of the war against Al Qaeda and that invasion was necessary to keep the country safe from nuclear weapons.291 Thus armed, the President’s choice of tactics (secret domestic surveillance, detention without habeas corpus, and torture) and his choice of targets (Iraq) reflected his structuring of the situation, and thus of his own powers. The President presented the situation to the country as an all-out war against the United States; the country
would respond to this existential threat with courage and with determination, led by a commander-in-chief over affairs both foreign and domestic.

* The more severe the crisis, the greater the need for bold, decisive action, and the greater the need for the country to rally around its leader, to whom the public looks to resolve the crisis.

* One’s view about the legitimacy of a particular use of the presidential politics of emergency depends on one’s belief about whether presidents have accurately described the nature and the scope of the situation before the country. If they have, of course, their solution, tailored to that description, makes correspondingly more sense, and so does following their leadership. If there really is an emergency along the lines described by the President, then of course, it is very different than if there is no emergency, or if it is not as severe as the President says it is, or if the nature of the problem is different than the President describes, for then the President’s solutions are the
wrong solutions, and they will lead the country in the wrong direction.

* Presidents seek to gain popular support for a political program (and their Administration generally) through describing reality as involving emergency and describing the program in terms of how it deals with the emergency so described. What the President seeks to do, he seeks to do because of the emergency; what he has done has been justified
because the emergency demands it.

* We emphasize that governing through emergency is not the same thing as constitutional dictatorship. The former is a political strategy of characterizing a situation to gain political support and realize political reforms; the latter is a set of powers enjoyed by particular persons in the government.

* One reason the Bush Administration failed in its ambitions to build a new, long-term Republican majority was that it lost the ability to maintain the public’s focus on the threats that it claimed faced the nation. It lost the public’s attention partly because of its success in preventing subsequent terrorist attacks, partly through its incompetence in dealing with other foreign policy (Iraq) and domestic problems (Hurricane Katrina), and partly because other issues, like the economy, came to rival the “war on terror” as the focus of public concern.

This last point is worth emphasizing: even if the President has a first-mover advantage to redefine the political situation temporarily to his advantage, he cannot do so indefinitely. Reality (and a resurgence of political opposition) will continually intrude on the Administration’s plans. Political opponents will deny the President’s claims about reality and assert that they understand the real emergencies the nation faces.

* If the members of the Bush Administration had been more flexible and less ideologically blinkered, they might well have achieved a new political majority that would last for decades.

* Almost a century ago, Max Weber offered a dark portrait of the likely evolution of parliamentary democracies over time. Viewing matters from the perspective of the early twentieth century, he foresaw an almost inevitable slide toward Caesarism: a plebiscitarian dictatorship in which rulers claim authority through acclamation by the people and then proceed to rule with little oversight from the democratic process. In Weber’s account, the legislature becomes increasingly impotent, irrelevant, or both. More and more government functions are concentrated in the executive. The executive, in turn, gains authority from charismatic appeals to the people for the right to rule. Gerhard Casper forcefully drew on Weber’s analysis in a 2006 analysis of the contemporary American presidency, which focused on—but was not limited to—the example of the Bush presidency.309 One could find a complementary analysis in the work of another great Weimar Era theorist of emergency and executive power, Carl Schmitt. Schmitt’s support for Hitler’s
rise to power in 1933 was due in part to his deep skepticism of parliamentary democracy and his belief that a strong and charismatic authority figure was needed to break through the political paralysis generated by the Weimar Constitution.

* The need for an inspiring figure, freed from the old politics, who would lead the country toward transformative change was a theme of both parties’ campaigns…

* the legislature is the least respected branch of the federal government.

* Aided by every possible technological innovation, the President, now more than ever, can appeal directly to the public. In the twentieth century the mass media were an important bulwark against presidential overreach, but they have become increasingly toothless, in part because of the rise of access journalism and in part because professional journalism itself is being undermined by the slow and steady destruction of its business models. Indeed, the President can now route around the traditional mass media and take his case to the public directly through the blogosphere or through YouTube.

* the modern presidency is inevitably a cult of personality, and especially so if the President is personally charismatic, like Barack Obama. Even if he is less so, his party
and his handlers assiduously work to create such a cult, as they did for George W. Bush. Some of us may be tempted to look back at the steady stream of toadying books and articles written about President Bush’s genius, moral clarity, and connection with ordinary Americans as examples of mass delusion.

* Presidents now not only set legislative agendas, they also are the chief spokespersons for the meaning of America, its values, its hopes, and its aspirations. They are not only commander-in-chief, they are also comforter-in-chief (able to “feel [our] pain”), preacher-in-chief, educator-in-chief, and role model-in-chief all rolled into one larger than life persona. The American President, unlike most parliamentary leaders, has always been both head of government and head of state; increasingly, however, the President embodies the virtues of the country, and he becomes a vessel into which are projected the hopes of the nation and the virtues of the country (as well as its vices).

* there is a long-term trend of disconnection between the plebiscitarian presidency, with its cult of personality and identification of value and action with a single
individual, and the actual practices of constitutional dictatorship, which distribute decisionmaking among many comparatively faceless and anonymous institutions and individuals. The result of these two opposed elements of the modern American presidency is the schizophrenic nature of American constitutional dictatorship. Distributed expertise and secrecy on the inside combine with a plebiscitarian cult of personality on the outside. As a result, the outward manifestation of American
power increasingly has little to do with the actual processes of government.

* laws are the enemy of discretion; increased legalization means increased bureaucracy that will hamper the President’s ability to make effective policy and take effective action.

* Determined lawyers set upon a course of finding ways around legal restraints are likely to do so, even if the arguments are very poor.

* parliamentary systems may have some modest advantages over presidential systems in heading off the dangers of constitutional dictatorship, if only because the Prime Minister has to maintain—and answer to—a parliamentary majority coalition. Presidents, by definition, are able to create their own political base separate from the legislature.

Posted in Carl Schmitt, Politics | Comments Off on Constitutional Dictatorship: Its Dangers and Its Design

NYT: CARL J. FRIEDRICH DIES AT 83; INFLUENTIAL HARVARD PROFESSOR

Joseph Berger wrote in 1983 for the New York Times:

Having lived in an era which saw the rise of Nazism and the spread of Communism, Dr. Friedrich sometimes took a dour view of the human inclination for freedom.

In his 1967 book ”An Introduction to Political Theory,” he wrote that while the liberal tradition believed people wanted freedom maximized, ”experience in the last hundred years has shown this to be quite in error.” He added, ”Actually I think it is much more nearly true to say that people want a minimum of freedom, rather than a maximum. Most people are very glad to leave a lot of things to other people.”

Stephen Turner wrote in 2015:

Encountering Carl Schmitt for the first time is a shock, especially if one is raised to respect what Jeremy Rabkin, in his Liberty Forum essay, correctly describes as the liberal pieties. But if one cares about liberalism it would be a mistake to write Schmitt off as a Nazi, a nihilist, or a promoter of anachronistic theological irrelevancies. Schmitt was a prophet of doom, and doom did not arrive on schedule, and his solution was worse than the disease. But it is important to take a longer perspective: the problems he identified in liberalism have not gone away. Indeed they flare up repeatedly, and may well be arriving on a slower schedule, in different but related forms.

The risk of dismissing Schmitt is significant: to fail to see how fragile liberalism is, what its preservation requires, why the liberal bromides seem to much of the world to be cynical and empty justifications for the self-interested exercise of power, and, finally, why the skeptics might, quite reasonably, think differently. With the world convulsed by radical Islam, which overtly rejects liberalism and takes a theological form that cannot be fit into the painfully worked-out compromises that resolved the European wars of religion, one can hardly pretend that liberalism, especially of the kind derived from Wilsonian internationalism, has all the political answers for current world problems.

There are other reasons as well. One cannot really understand the Frankfurt School, or Leo Strauss, or Hans Kelsen, or Hans Morgenthau, without understanding what they both absorbed and rejected from Schmitt. Herbert Marcuse’s essay “Repressive Tolerance” (1965) is a perfect example of Schmittian reasoning, and the basic form of argument reappears in feminism and the various constructions of racism that dominate contemporary academia. And one cannot understand the kind of authoritarian liberalism promoted at Harvard by the Kantian Carl Friedrich, which influenced so many American political scientists, including his student Henry Kissinger, and also many of his Harvard colleagues in other fields, and consequently the conduct of American government, without understanding Schmitt as his hidden interlocutor.

Clinton Rossiter’s dissertation, Constitutional Dictatorship (1948), conveyed the same message as Schmitt’s Dictatorship (1921): that we had something to learn from the Roman institution of dictatorship about how to deal with political crisis. It was a small step to Rossiter’s fawning praise of the executive in The American Presidency (1956), his widely used textbook pointing out that the vaunted legislative checks on presidential power in the U.S. Constitution, such as the power of the purse, were largely meaningless and unusable. Arthur Schlesinger Jr.’s The Imperial Presidency (1973) affirmed that this is indeed what had transpired: the executive had become unfettered and dangerous. In an age of presidential assertions of prosecutorial discretion that amount to rule by decree, these are live issues.

From the Wikipedia entry on Clinton Rossiter:

In particular, following the events of 9/11, Rossiter’s first book, the 1948 Constitutional Dictatorship: Crisis Government in the Modern Democracies (reissued in 1963 with a new preface), was reprinted for the first time in nearly forty years. In that germinal study, Rossiter argued that constitutional democracies had to learn the lesson of the Roman Republic to adopt and use emergency procedures that would empower governments to deal with crises beyond the ordinary capacities of democratic constitutional governance but to ensure that such crisis procedures were themselves subject to constitutional controls and codified temporal limits.

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