TEA PARTY PRESIDENTS WILL NOT BE LAW PROFESSORS : CAN LAW GOVERN WAR?

AN ESSAY

Last week, Sarah Palin delivered a speech to the first annual "Tea Party" convention in Nashville. Many listened very closely to her remarks because everyone wants to know what she plans to do with her political future. Love her or hate her, she has found a niche: Semi-factually orating to the semi-intelligent, nativist, government-hating "silent majority" that would not mind seeing President Obama lying in a pool of blood.

Apparently, this "silent majority" has launched a "counter-revolution" called the "Tea Party Movement." From what I understand, its adherents believe that all government is bad. They take their name from the American patriots who revolted against English taxation by destroying royal property in 1773. I suppose that these 21st Century "patriots" share the same hatred for taxation as their 18th Century "brethren."

But that's about all they share. Patriots in the 18th Century fought against legitimate wrongs. They sought to establish a Republic of laws against foreign autocracy. By contrast, these 21st Century "patriots" are not rebelling against a foreign monarch to establish a "more perfect Union." No, they are rebelling against their own government in order to pay fewer taxes and to exclude undesirable immigrants from American shores. They don't want to establish a new government to provide for Justice and "Domestic Tranquility." They basically want to abolish all government so that private business can do whatever the hell it wants.

I don't think James Madison or Thomas Jefferson would have joined this "Tea Party." Their talk about "the Rights of Man" and "equal human dignity" would not have gone over too well with this wetback-hating crowd. And they certainly would not have gone far with arguments about a Constitution. No, Palin's "Tea Party" adherents just want unlimited business license, not an enlightened Bill of Rights.

In sum, then, I gather that the "Tea Party" wants something just above anarchy. They want a "minimalist" government that does not interfere with private wealth or property ownership. They don't want health or welfare regulations, nor do they want intrusive "civil rights" legislation that blocks business opportunity. They want government to maintain an army, protect the borders, guard foreign trade interests, vindicate private contract rights and to prosecute domestic criminals. Beyond that, they do not want government to play a role in public life.

So these are the folks to whom Sarah Palin directed her remarks last week. And what did she say? Not surprisingly, she took vicious swipes at President Obama, who represents everything the "Tea Party" is not: A big-government minority intellectual who eschews military strength and supports high taxes. She lambasted him for failing to keep America safe from terrorism. To make her point, she attacked his intellectual spirit: "To win [this] war, we need a Commander-in-Chief, not a Professor of Law."

In other words, law professors ruminate and dawdle over legal intricacies while Commanders-in-Chief ignore the law and just kick ass. "Tea Party" members don't want the law. They want swashbuckling, extralegal ass kickers.

As much as I personally disagree with Palin's simplistic reasoning on this point, I cannot ignore that she illuminates a popular distinction: She equates law with weakness in war. There are "law professors" and there are "Commanders-in-Chief." Law professors are vacillating cowards who waste time worrying about the law. By contrast, Commanders-in-Chief kick down doors and get the job done, the law be damned.

Sadly, there is a widespread public belief that anyone who follows the law cannot protect the country from terrorism. The "Tea Party" fully endorses this belief. It asserts that the President cannot protect Americans if he insists on following the law--and the Constitution. Rather, according to the "Tea Party," a "strong President"--namely, a "Commander-in-Chief"--will gladly ignore the Constitution in order to "kick terrorist ass."

This is a stunning admission of the law's weakness. After all, if ignoring the law is the only way to win wars, what does that say about the law? Why even bother with it? Wars test States in the harshest possible ways. Yet law is supposed to guide a State through everything. If the law cannot handle war, it cannot handle anything. If the public believes that law is insufficient to win wars, then it rejects law completely. No one trusts weakness; and the "Tea Party" associates law with weakness. In that light, it is no wonder that Palin pejoratively labels President Obama a "law professor." That is the same as calling him a "Professor of Weakness."

But what is the alternative? Who is the fabled "Commander-in-Chief"? What does the "Tea Party" want in a President? Do they want a man who tears up the Constitution and tramples on their rights as citizens? Do they want a man who ignores international treaties and indefinitely imprisons people without cause or charge? Do they want a man who tortures others? Do they want a military State? Well, that is the opposite of law. And if law is weakness, maybe they do. After all, terrorists exploit weakness. It's better to be strong than weak, no matter how much liberty you must surrender, right?

I say no. It is dangerous to associate law with weakness because our law exists to govern all contingencies, including war. Our Constitution creates the term "Commander-in-Chief." See U.S. Const., Art. II § 2, cl. 1. There is no fanciful distinction between "law professors" and "Commanders-in-Chief." If anything, the "Commander-in-Chief" owes his existence to the Constitution--and the Constitution symbolizes life under law. In this sense, "Commander-in-Chief" is a legal term. The "Commander-in-Chief" plays a specific constitutional role under law. According to the Constitution, the President manages war within the law. He even takes an oath to support the Constitution. See Art. II § 1, cl. 8. Textually speaking, then, the President's first duty is to the law, not to kicking ass.

Ms. Palin did not know that. But then again, she does not know a lot of things.

Law is not weakness. If anything, it symbolizes our strength as a State. In the United States, law stands for something better than mere brute force. We enshrine our deepest values in law. Through law, we guarantee personal liberties and rights. Through law, we define the parameters by which government acts. We insist on law because the law protects us. If war suddenly entitles government to ignore the law, we have lost our protection. And it is no accident that our Constitution provides for war. Our Framers knew that war often provides an excuse to ignore law. That is why they demanded that the law remain intact, even in war. By defending law even in war, we affirm ourselves our own strength as a State--and our own rights as individuals.

Yet the "Tea Party" would have us believe that war trumps law. It even mocks a President who commits himself to following the law to govern war. This is extremely troubling. After all, the President has an institutional duty to follow the Constitution. By observing the law, the President is not betraying the people; he is doing his constitutional job. This is not weakness. If anything, it is strength.

Still, it is hard for the semi-intelligent (and sub-intelligent) masses to understand the value in defending law. To them, kicking ass seems a much more satisfying governmental option than according Due Process rights to prisoners and fretting over procedures. But if they only knew that fretting over procedures keeps everyone free. Perhaps then they would understand that there is value in defending law. After all, once the law falls in one case, everyone is vulnerable, not just the ne'er-do-wells rotting at Guantanamo Prison.

For my part, I feel safer knowing a law professor is guarding the Constitution than some "Tea Party" fanatic who would gladly take a dump on my rights simply because he says there's a "war on" somewhere.

But I'm unusual. Most Americans don't mind when authorities shit on their rights, as long as they can keep shopping in peace. That's why they might join the "Tea Party," and I won't.

THE TROUBLE WITH TAX CUTS

Yesterday, the House of Representatives passed a massive $819 billion economic stimulus bill. The bill provides massive cash infusions to public agencies in an effort to jolt the economy from recession--or depression, depending on who defines the terms. Every single House Republican voted against the measure. Some representatives even labeled it "insane." Why? "Because it does not contain enough tax cuts for businesses."

Our economy is in ruins. People are starving. They are going homeless. Their life savings are evaporating. They are losing their health coverage. If the government does not act soon--and boldly--they will suffer even more. Just as Franklin Roosevelt had to act fast in 1933, so too must President Obama act fast today. Roosevelt understood that modern crises demand radical programs, even if those programs ruffle conservative feathers. Republicans in the 1930s, for instance, believed that the government had no power to create a social security office or regulate the stock markets. But national crisis shunted their pedantic criticism aside. Seventy years later, no one would argue that social security or stock market regulation are bad. At the time, however, critics said the government was "going too far" and "exceeding its powers."

Republicans are putting up a similarly doomed fight now. They do not recognize the magnitude of the crisis we face. They apply reasoning that might be sound in a stable economy, not in a depression. Rather than take bold steps, they cling to economic slogans and talismans. I often use the word "talisman" to describe hypnotic allegiance to concepts, even when it does not make sense to apply those concepts. Republican resistance to sweeping economic reform is a perfect example of a talisman at work. This is the talisman: "Government spending is bad. Tax cuts are good." If government action violates this simplistic formula, Republicans start crying bloody murder and threaten to vote against it. They reason that job creation, wealth and prosperity result when private enterprise gets to keep more money, on the assumption that rich people will use it to spend on the rest of us. On the other hand, they reason that government spending does not create "real wealth" because it results in waste and mismanagement. Republicans want low taxes all the time. That is their talisman.

That is why Republicans voted against the Obama stimulus plan to a man. It violated the talisman: Too much government spending; not enough tax cuts. Perhaps they are also just a little spiteful that a Democratic black man is so popular among the populace; and this is their chance to "sock it to him" in whatever institutional way they can. Motivations aside, Republican critics all say the same thing: "This plan is insane because there is not enough tax relief for business." They ignore the fact that the bill sends billions to Americans who need mortgage relief, health care, unemployment benefits and social help. In the Republicans' view, these desperate people don't matter; only tax cuts matter. That's it. There is nothing subtle about it. No tax cut, no vote. Too much government spending, no vote. That's how Republicans think when it comes to economic legislation.

In theory, businesses should create jobs and invest more money in the public when they do not have to pay as many taxes. After all, if a company has gross receipts of $15 million and must pay $6 million in taxes, one would think the company could hire more workers if it only had to pay $4 million in taxes. But there is a fatal assumption here, namely, that companies and wealthy individuals will spend their savings on others, rather than on themselves. In the preceding scenario, what if the company owner preferred to take his $2 million tax savings and redo his living room? What would make him hire 5 more employees, withhold their taxes and pay their health benefits? Why not enrich himself with the money? In other words, tax cuts do not necessarily lead to the public good. They could lead to reinvestment and job creation. Or they could lead to mere self-aggrandizement and personal consumption. I would venture that human beings are more likely to spend extra money on themselves than on others. Admittedly, this is a cynical view. But experience confirms that it is usually true.

Republicans are right that government spending can result in waste and mismanagement. But they are incorrect that tax cuts are a magic potion that automatically cures economic ills. In our private enterprise system, people do not spend money to help others; they want money to enrich themselves. What is the point of success if you must take your winnings and give them to others? That defeats the whole point of capitalism. The whole point is to get richer and richer, not to diffuse your money to others. Charity might be a reason to spend money on others, but that ultimately inures to the capitalist's benefit, since it lets him pay fewer taxes at year's end. Self-interest does nothing selflessly. Yet Republicans assume that tax cuts will make business owners act selflessly voluntarily. That is a pipe dream. If you give more money to a rich man, he will not transform into a saint. He will go buy a new house.

We need government spending now, not tax cuts. Government must approach this economic crisis the way Roosevelt approached the Depression in 1933. Government must take a more active role. In the 1980s, Ronald Reagan said that "government is the problem." That is not the case today. Unfettered private enterprise created this mess; winking government lassitude only exacerbated it. In 2009, we need strong government to rein in cowboy capitalism. Tax cuts will only worsen current problems. If anything, the government needs more revenues to rebuild the economy. This may chafe against Republican virtues--"it's wealth redistribution, by God!"--but rigid allegiance to private enterprise will lead only deeper into Depression. Tax cuts may be appropriate when the economy is relatively stable and the government does not need to intervene. But today the economy is not stable, and government must intervene. In crisis, people turn to the government. Government cannot ignore them. After all, despite all the technical squawking about whether we are in a "recession" or a "depression," economic strength really depends on popular faith. When people panic, lose their savings and go homeless, they think they are in a depression, no matter what the numbers say on CNBC. In the 1930s, government intervention restored public faith. Today, government must do the same.

Most people in America today have lost their faith in unfettered private enterprise. That is why they voted in Obama and an overwhelmingly Democratic Congress. They want economic reorganization, even if that means "more government spending." It is no coincidence that the Republicans--who want tax cuts--are in the minority. Congress reflects the popular will better than any other national institution. The stimulus bill is an aggressive push for change. That is what the people wanted. They have no more faith in pure private enterprise for economic strength. Only strong action will restore national faith in the economy. The stimulus bill is a good measure to begin that work. Like it or not, economic strength is as much about perception as it is about numbers. When people feel that their government is doing something about the economy, their perception will improve. That is the first step to recovery.