Tag Archives: Montesquieu

Freedom Under Law

Last night the Senate failed to advance an extension of the Patriot Act’s Section 215. Rand Paul objected to Mitch McConnell’s efforts at passing any short-term extensions and suddenly it looks like the legal authority for the Patriot Act’s phone metadata collection program may actually expire June 1st.

“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now, and I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged.”

So said Rand Paul at the outset of his 11 hour pseudo filibuster on Wednesday, and it’s hard not to be moved by the language. If there is a quality I admire most about the Senator from Kentucky it is his maniacal obsession with restoring checks and balances to our government. In order to have any success at reining in executive power the public must first agree with the premise on which the reform rests. If you’ve paid attention to Paul in the Senate you know the thread that runs through his speeches and through his marathon performances on the Senate floor is the separation of powers. Drones and NSA spying were not background concerns per se, but neither were they the true focus of the filibusters. At root is a fundamental objection with the flagrant expansion of executive power under every administration since World War II, but especially since 9/11.

Why are separation of powers so important? To hear Paul tell it, the sanctity of divvied powers was eloquently championed by French philosopher Montesquieu, who warned how tyranny would ensue whenever the executive moved to legislate. Likewise, separating the judicial branch from both executive and legislative was imperative for the security of habeus corpus and other natural liberties. Embedded in small government philosophy is a staunch suspicion of planning and expertise, a wariness born during The Enlightenment and which reflected the conflict between the regal old guards and the new class of individual-minded bourgeoisie. For eons the word of the state was the final word on society; decrees from on high carried down to the masses for them to follow. However, the individual conscience rights that began taking shape in the Middle Ages became more widely disseminated during the Renaissance and Enlightenment. With the expansion of knowledge and individual agency the feudal system gradually gave rise to market economies fueled by spontaneous order. The consequent loss of power and influence for the aristocracy was a product of capitalism providing the vehicle for political participation by ordinary folk. Schumpeter’s insight that “the princess was always able to wear silk stockings, but it took capitalism to put them within reach of the shop girl” put the lie to the Marxist conceit that free enterprise would destroy the middle class. Voluntary exchange under a legal framework that respects the individual and cherishes his right to profit from his own labor is what created the middle class.

As the Western world moved methodically toward social appreciation for the citizen’s sovereignty over the state, the question of democracy became crucial: how to organize a free society of, by and for the people when for so long power and authority were hereditary and monarchical? Fortunately the British and ultimately the Americans did not need cast about in search of a guiding principle. We already got one and it’s called Magna Carta. The great charter signed at Runnymede marks its 800th anniversary this year and yet remains relevant as ever. Habeus corpus, jury trials, property rights and a common law that precedes and preempts man-made law; these natural rights discovered by our English forebears provided the blueprint for the individual based free society. They also declared for the first time in history real restrictions on the power of the state or king, which would prove a launching point for our founders as they set to establishing a government that would pit ambition against ambition as a means of separating and counterbalancing the powers of the state. The best encapsulation of this radical vision for upending centuries of authoritarian rule is inscribed on the monument commemorating Magna Carta: “freedom under law.”

Freedom under law is what the entire debate over NSA and executive power overreach is all about. National security state defenders will often say there’s no evidence of abuse currently and besides, don’t you want to be safe? But that is not the point. The point of a freedom secured by law is that the law is the law, and it is supreme. John Adams said we strove to institute a “government of laws, not men.” When executive authority runs afoul of the law it is supposed to be a big deal. When successive administrations of different parties expand executive power to the degree that natural rights are abused, it is supposed to be a huge deal. But in the name of fighting terror and keeping the country safe the Bush and Obama administrations have treated the 4th amendment like so much garbage.

In attempting to take Rand Paul to task Andrew McCarthy of National Review runs the gamut of talking points before insisting that “the depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear.” But Paul is not doing that; instead he is arguing that the Patriot Act and its especially problematic provisions open the door for abuse at any time. It may not be now, or in the next administration or the next but the point of freedom under law is that we eliminate this risk altogether by forcing fallible men and women to swear oaths to uphold and defend the Constitution. The founders were explicit about making the law supreme and they further divided power to guard against the transient passions and fears that inevitably come to challenge man and his commitment to law. As challenging and daunting as it is, the jihadist threat of modern times is exactly the kind of passionate, fearful moment in time the founders knew would inevitably materialize. If they knew that only two hundred some odd years later American political discourse would include such penetrating insights as Chris Christie’s you can’t enjoy your civil rights from a coffin, they would have folded up shop and abandoned the revolutionary project full stop.

The Patriot Act is what happens when laws are passed out of fear instead of sober deliberation. Freedom under law was always meant to keep that from happening, like the abstract, intangible version of standing athwart history yelling stop. The founders knew too well the propensity of man to govern arbitrarily; thus the principle aim of the new republic was to build a system that takes arbitrary and consolidated power out of the equation and lifts the Constitution up as the final arbiter on what government can do.

Rand Paul’s Filibuster

One year ago today, Rand Paul captivated much of the country with his filibuster of John Brennan’s nomination to the CIA. The 13 hour marathon went spectacularly viral on social media and was responsible for CSPAN’s largest ratings in a while. By now very few Americans are unfamiliar with the Kentucky senator’s passionate rebuke of our clandestine drone program, and that is due to Paul’s political instinct for latching on to broad populist concerns that generally transcend partisan lines. Whether it’s reforming mandatory minimum sentencing, advocating government (state and federal) exit from marriage contracts, suing the NSA for domestic spying or championing drug war reform and felon voting rights, Paul has shown he is virtually peerless at applying his libertarian message to issues that garner broad support and thus enhance the appeal of libertarian ideas overall. Still, for all his policy entrepreneurship in just three years in the Senate, Paul is known most for his stance on drones.

As much as the filibuster was about drones, it was also about much more. It was about the wider War on Terror, as well as a plea for a restored reverence for the Bill of Rights, especially the fifth amendment. Most of all though, the filibuster was a disquisition on checks and balances and constitutional separation of powers. Rand used the hypothetical threat of an American being killed via drone strike on American soil without due process as a vivid entry point through which his audience could begin to appreciate the distorted power distribution within the branches of government.

Since Woodrow Wilson progressives have believed that government power should be concentrated in the executive branch and that the presidency demanded a “vision.” George Will describes the Wilsonian impulse as a desire for the president to interpret the constitution in a way that comports with the wishes and wants of the people and to be the voice that affirms these wants. Wilson’s view of the American founding and of separation of powers would become the legacy sentiment of the American left for a hundred years: not good enough. For Wilson and his ascendant progressive cohort, science was becoming the dominant and indisputable truth; bolstered by Darwin’s theory of evolution in biology, they set out to apply the science of evolution to human behavior. Wilson believed that government’s purpose was to efficiently guide humanity towards its inevitable endpoint of societal evolution. The perfect society would be attainable once the experts were put in charge. You know, top men

F.A. Hayek famously disparaged this inclination to impose scientific plans on a society the fatal conceit. The idea that you can acquire enough knowledge to plan an economy through the expertise of administrators is essentially the definition of hubris. That you would attempt such a project in a polity expressly founded in opposition to this conceit is nigh treasonous. And yet there was Woodrow Wilson, the first American president to directly challenge the very nature of our government’s structure and the idea that power should be diffuse and majorities neutered. Our Madisonian construct is meant to consist of constantly shifting majorities among competing segments of government, while factions are to be constrained by being discouraged on large scales, the idea being that the inevitable rise of small factions within civil society would harness productive resolutions among competing interests. Wilson and the progressives declared all this nonsense, said “Hail Science!” and went to work on a century long project to gradually erode checks and balances by growing the executive to a scale fit to house a legion of expert administrators, aka “unelected bureaucrats.”

This was the subversive message of Rand Paul’s filibuster. The crucial issue he really meant to highlight was embedded inside his bombastic portrayal of an immediate threat to our natural rights posed by drones. That is not to say that Paul was not sincere about his clarion call for reform to both overseas and domestic drone protocols. Rand is nothing if not a rabid defender of all of the Bill of Rights, and his alarm at the vague guidelines, oversight and legality of the government’s drone program was about protecting various parts of our fourth, fifth and sixth amendment rights. More than anything to do with drones though, the crux of the filibuster was about drawing attention to the bipartisan abuse of executive power.

Paul is fond of quoting Montesquieu (really, who isn’t?), the French political philosopher whose principal contribution to politics was the idea of separation of powers. A merger between executive and legislative branches would mean no liberty, according to Montesquieu’s revolutionary tripartite concept under which our government was conceived. Likewise, as Paul offered repeatedly throughout his filibuster, a combination of the executive and the judiciary can yield no justice. Paul was rightly tying the concern over due process and extrajudicial assassinations to the broader discussion of an overreaching executive. The presidency has simply become too big, with too many agencies and bureaucracies under its aegis. Congress has gradually and steadily forfeited much of its authority to the executive on everything from war powers to educational administration (as if that should be a role of the federal government at all). I believe Rand Paul was sincere when he said he would have stood and raised the same objections regardless of who was occupying the White House. This was not a partisan attack on Barack Obama, but a larger critique of the subtle degradation to our constitutional prerogative to live under three coequal branches of government.

Before Wilson, Congress had far more authority than it enjoys today and the roles of the branches were unambiguous: the legislature writes the laws, the executive branch executes the laws, and the judicial branch determines the constitutionality of the laws. But with the rise of our imperial presidency – brought to you unapologetically and enthusiastically by progressives and their presidential “visionaries” – the executive branch has become Leviathan, buttressed by unaccountable battalions of expertise known as executive agencies, able to cast the tentacled nets of the administrative state across the land, unimpeded and with little input from the other branches. Our government as currently construed is not very far from completing the progressive vision of having a benign dictator administer an expert plan for the country. As the executive branch grows and grows, and with it the number of petty authoritarians manning the cubicles at EPA, IRS, DOE, HHS, and wherever else the executive agencies have usurped power, the ability of Congress and the Supreme Court to effectively check its authority diminishes. We know who is responsible for this. Paul’s meta-narrative was not to affix blame for the bloated, corrupt, too-powerful presidency, but to cast a bright shining light on it and to spend thirteen hours subtly lamenting the fact that not enough Americans in the 21st century seem to care that government today is not functioning as it was designed.

And what better way to jar Americans out of complacency than to warn them that an unchecked executive might drop a drone through their roof. That was the real point of the filibuster, to wake Americans up to the perils of absolute power.