TAZERS : LEGAL, BUT WRONG

AN ESSAY

Two weeks ago, a Texas highway officer stopped a 72-year-old great-grandmother for driving 60 miles per hour in a 45 speed limit zone. See video at http://www.youtube.com/watch?v=cdDdwxJyZZI. The officer asked the woman to sign a ticket promising that she would appear in court to answer the charge. She refused. The officer ordered her out of her car and violently shoved her onto the roadside. Naturally, she became upset. He raised his voice and threatened to “taze” her unless she complied with his orders. She continued to refuse. Finally, after trying to return to her car, the officer fired his tazer into her body, causing her to shriek and collapse to the ground. As she writhed in pain beneath his feet, the officer shouted: “Get down! Get down! Or you’re going to get tazed again!”

Thanks to the officer’s decisive action, the dangerous suspect surrendered. Well, she really did not have a choice because her muscles were unresponsive. The officer cuffed her and took her into custody. She was charged with speeding and resisting arrest. She suffered no physical injury. When the officer’s dashcam footage made the news, however, the Sheriff’s Office quickly rallied to his defense. A police captain said he acted “properly at all times” and that “no one suffered injury.”

Tazers have generated debate for as long as they have existed. Law enforcement hails them as a revolutionary means to subdue violent, resisting offenders. Liberals call them inhumane, degrading weapons intended to humiliate and subjugate citizens. Law enforcement stresses that tazers “do not cause permanent injury” and are thus “safer than nightsticks” or other bygone restraint methods. Liberals point to the grotesque spectacle that ensues when 50,000 volts of electricity flood through a human body, rendering it instantly limp and motionless. For the liberals, the question is not efficacy. It is dignity and humanity. For law enforcement, the question is crime control and “officer safety.”

I fall on the liberal side in this debate. Nobody likes crime, but no one can suggest that law enforcement should have a free hand in adopting any methods necessary to control it. After all, our Constitution would mean nothing if, as a society, we decided that we wanted to control crime “by any means necessary.” Our Bill of Rights proceeds on the assumption that unchecked government power represents a threat to individual liberty. Government power is most dangerous in the hands of the Executive branch, and that includes the police forces. Without constitutional guarantees securing our bodies, property and dignity, the police could freely detain, question, torture, humiliate, degrade and coerce us at will, all in the name of some nebulous “crime prevention.” We tolerate Executive power only on the understanding that we retain rights against it as individuals. Among those rights is the right to reasonable, dignified treatment by executive officers.

Tazers represent a “means” to enforce the law. For Machiavellians, “means” mean nothing as long as they effectively achieve the desired “ends.” When it comes to crime, the “ends” are compelling: Stopping criminals and enforcing the law. But what means are permissible to effectuate these goals? Machiavelli would have praised Hitler for his commitment to crime control. His police forces knew no boundaries in their efforts to suppress crime. They were highly successful because they had every “means” at their disposal to investigate and prosecute “offenders.” But this example exposes the deep moral flaws in Machiavellian thinking. Means do matter, at least in a constitutional democracy with claimed commitments to lasting principles such as dignity, equality and justice. In America, we have always defined ourselves against tyrants with unrestrained power over citizens. Tyrants employ every means necessary to maintain dominance and control over their subjects. In this sense, Americans have always been deeply suspicious of Machiavellian thinking in government because tyrants read Machiavelli. In our constitutional order, means matter as much—if not more—than the ends.

Tazers bring these age-old issues into focus. Many States now authorize the police to use tazers in order to suppress dangerous or resistant crime suspects. Proponents cite medical evidence that the tazer’s electric charge—while substantial and fearsome to behold—only temporarily shuts down muscle function, leaving the subject uninjured. The subject experiences massive pain for an instant, then it vanishes. Many States embrace tazers because they do not cause “permanent injury.” Many States even reference reports that “old” restraint methods are actually more dangerous because they can potentially cause “permanent injury.” For these States, tazers offer a way to completely subdue suspects without causing injury or placing officers in harm’s way. These States focus on the objective benefits that flow from tazers. They focus on the “ends” that tazers achieve. On paper, it looks good. Tazers are “legal.” They are “modern.” They are “effective.”

But what about reality? Tazers do more than merely “subdue suspects.” They represent a massive, overwhelming intrusion of governmental power onto the body of the individual citizen. Consider the power dynamic in a typical citizen-police confrontation involving a tazer. In most cases, the citizen is unarmed and upset about being accused of a crime. The officer, by contrast, has a gun, wears an official uniform and threatens to employ a futuristic-looking electrical device to render the suspect totally powerless in an instant. Even if the suspect has not committed a serious infraction, the officer holds all the authority. Furthermore, he has the raw, technological means to enforce his will over the suspect. When he says: “Step back,” he has the power to enforce compliance and punish defiance by sending a 50,000-volt shock through anyone petulant enough to question him. Thus, the officer has all the cards. If the suspect does or says something he does not like, he can employ his technological advantage to utterly break the suspect’s physical and emotional capacity to defy him. All the tazer videos show this dynamic at work. The officer seems to relish his ability to reduce his antagonist to utter subjection. Even when the suspect goes down and begins wailing like an injured pig, he continues shouting and even threatens to “taze him again” unless he complies with his every command.

Is this rational law enforcement? Or mere power play?

Tazers are frightening devices. They do more than merely “allow” police to “control” unruly crime suspects. They arm executive officers with a devastating weapon that breaks individual citizens’ will and reduces them to compliant, screaming children. In my view, this is too much. I do not like government action that impinges deeply upon the dignity of the individual, whether or not they are crime suspects. When a police officer shoots an unarmed suspect with a tazer solely to punish him for willfulness or resistance to orders, I see tyranny, not legitimate “crime control.” No matter what benefits the State claims from tazer use, I cannot bear the spectacle of citizens reduced in an instant to a shrieking quarry. It bothers me to know that government can do this to its own citizens in a constitutional democracy. “But it does not injure them,” say the tazer defenders. Perhaps not. But tazers certainly inflict pain, indignity and humiliation on them for daring to question a police officer’s authority, even if it is misplaced. In my eyes, that is too much power for an executive officer to possess. It is not about crime control. It is about governmental conduct. And dignity matters to me.

Sadly, most people disagree with me. They wonder why I have sympathy for crime suspects. They also wonder why I care about some worthless criminal’s dignity. Even the Supreme Court disagrees with me. In case after case, they reject constitutional challenges alleging “arbitrary” police conduct. The Court says that you have a “liberty interest” to be free of “arbitrary police action” that “shocks the conscience” because such action “offends the decencies of civilized conduct.” See, e.g., Sacramento v. Lewis, 523 U.S. 833 (1998). But the Court whittles away that hopeful language by requiring challengers to show that the police “intended to cause harm unrelated to the legitimate object of arrest.” In tazer cases, the police will never admit that they intended to cause you harm; in fact, they will simply say they did not cause you “harm” at all, because tazers “do not cause permanent injury.” Your writhing agony after being hit by 50,000 volts does not qualify as “harm,” because it was not “permanent.” This is the mischief to which hypertechnical legal argument can lead.

For me, dignity means more than the legal abstractions our Supreme Court is willing to define in law. I defend everyone’s dignity against governmental intrusion because I believe in the principles that animate our constitutional order. In my view, that order reflects the primacy of the individual against government action. And in police-citizen confrontations, government action grossly overpowers individual autonomy. In unfair fights, I favor the underdog. I think anyone who believes in the individual over the government should think the same thing. In my eyes, zapping people with tazers because they refuse to comply with intimidating police orders is wrong and unfair, whether it is “legal” or not. Tazers allow government to physically and emotionally break individual citizens into abject submission with a single trigger pull. I do not like that idea.

There are so many things in our society that are “legal but wrong.” I place tazers in that category. What do I mean by this? To understand what I mean, I return to the tension between “ends” and “means.” Legislatures—and the citizens who elect them—can choose to make certain things “legal.” In so doing, they democratically enshrine certain value judgments concerning what “ends” must be achieved. Many State legislatures have decided that tazers admirably advance the governmental interest in “crime control.” They made tazers “legal” without really reflecting on the “means” they chose to accomplish their purpose. Yet there is a different source for “right” and “wrong;” it does not flow from the legislature, or even the Constitution. Legislatures make things legal or illegal; they do not make things “right” or “wrong.” In many cases, legislatures make things legal that are also good. But they also make things legal that are wrong. Tazing people is wrong but legal. It is wrong for government officers to zap citizens into utter submission, whether or not they suffer “permanent injury.” It is wrong to inflict scorching pain on citizens, even if it is “temporary.” It is wrong to inflict pain on citizens merely for being willful or for questioning the basis of governmental action. It is wrong for government officers to use tazers to childishly assert dominance over citizens. No matter what legitimate goals tazers serve, I think they are the wrong means to achieve them.

I am fully aware that law enforcement proponents will heatedly disagree with my views on this subject. They are welcome to disagree with me. I understand that some people value crime control more than others, and that some people believe that criminal suspects do not deserve dignity or respect from government. I know there are people who do not really care whether government violates a person’s dignity as long as that person is “a criminal” or somehow “blameworthy.” I believe the contrary. In my view, dignity and respect are absolute governmental obligations in our constitutional order. They are principles that go beyond mere expediency. They apply whether the subject is a murderer or a saint. And they should prevent government from adopting certain methods to effectuate otherwise legitimate goals.

My response to the law enforcement apologists is this: Once we allow increased government intrusion onto the bodies of individual citizens, what’s next? We allow tazers. They allow officers to inflict pain and degradation on people who have not been convicted of any crime. Why? “Because we want to control crime,” they say. Yet that is a broad mandate. What fearsome methods might we also permit to effectuate that goal, as long as we move “incrementally?” What about a tazer that stops the heart “temporarily?” What about a tazer that causes “temporary memory loss?” These are significant deprivations, no matter whether they are “permanent” or “temporary.” A suspect could claim: “Government stopped my heart,” and no one would care. That is profoundly troubling.

If we do not take a stand for individual dignity at some point, there is no logical end to potential governmental intrusion upon us. If we do not make dignity a meaningful principle, we all degenerate into lawyers arguing about whether something is “legal,” even when we know it’s wrong.

DEMOCRATS CANNOT HANDLE HOMELAND SECURITY : ONLY REPUBLICANS KNOW HOW TO KEEP AMERICA SAFE

By : Mr. Mitch McConnell, United States Senator (R-KY); Senate Minority Leader; Obama Opponent; Homeland Security Expert; Member, Agriculture Committee.

THE MINORITY VOICE

President Barack Hussein Obama has led this country for 100 torturous days. During that time, the President has made war on the American people by releasing brutal terrorists from our military base at Guantanamo Bay, Cuba. He has also eased restrictions on immigration, flooding our land with Spanish-speaking beggars, criminals and litterbugs. Backed by a majority in Congress, Mr. Obama has dismantled the wall his predecessor erected to defend this country from terror and miscreants, both foreign and domestic. Worse, he has put an emphasis on “fair process for all” and a “commitment to constitutional liberty” over security for American women and children. He has staffed the Homeland Security Department with liberal lawyers and law professors, some of whom are practicing Arab-loving homosexuals. He has committed to quitting the fight against al-Qaeda in Iraq. In short, Obama is a national disgrace; Democrats do not know anything about Homeland Security. As Republicans, we have a duty to protect America. And to protect America during the Obama era, we must strongly oppose anything he does, says or thinks. It is the only way to protect America’s children from terror attacks.

Our Founding Fathers knew that an elected democratic majority could be just as tyrannical as an unelected King. In the Federalist Papers, James Madison and Alexander Hamilton wrote at length about the dangers inherent in “small majorities.” They knew that a “small majority” could trample on very significant minority interests. For that reason, they provided such measures as the veto override mechanism, the constitutional amendment procedure and the bicameral legislature. They also embodied their commitment to minority rights through parliamentary procedures such as the filibuster, which allows the minority to stop small majorities from voting on key issues. Today, Republicans have a duty to invoke these procedures against Obama and his socialist-terrorist allies. When it comes to national security, Democrats prefer to shake hands with terrorist scum rather than detain, waterboard and kill them. When Republicans see turbans, we shoot; we don’t ask questions. This is the approach we need to defend America. It makes no sense to talk to Arabs; there is no such thing as “friendly relations” with terrorists. George W. Bush understood that.

In 2001, George W. Bush established the Homeland Security Department in order to protect this Nation from all enemies. In the beginning, Mr. Tom Ridge led the bureau. Both Mr. Bush and Mr. Ridge knew that old-fashioned ideas like due process, liberty, privacy, access to counsel, the right to remain silent and fair trials would not defeat terror in the 21st Century. For that reason, the Department suspended civil liberties in order to catch the bad guys. That was the right decision; after 9/11 America enjoyed seven years without terror. We caught many, many bad guys, although national security protocols forbid me from disclosing their names or how many we caught. We foiled many plots, although I cannot say what they were or how many. Despite all the criticism, Mr. Bush proved that his approach to Homeland Security was the right one.

Now the Democrats control the Homeland Security Department. This is the ultimate irony. During Mr. Bush’s term, the Democrats opposed everything the Department did. They said it trampled on civil liberties and increased Executive power. They said it harassed law-abiding citizens and perpetuated ethnic stereotypes. They said the Department did nothing to protect America; rather, they said it simply increased the President’s power to detain citizens without grounding in law. Of course, these Democrats fail to see that the Department did stop terror. The Department did protect America. The Department seized millions of gallons of contraband shampoo at airport security lines. It made tens of millions of Americans and foreigners remove their shoes and flip-flops. It inconvenienced millions of travelers who had no connection whatsoever to al Qaeda. It forced millions of Americans to take off their clothing and submit to searches without probable cause. It even listened in on millions of innocent phone conversations without court authorization, in many cases uncovering other, minor crimes in the process. Those measures doubtlessly foiled a would-be bomber. In any event, they allowed authorities to track down marijuana sellers and petty thieves. Most importantly, they sent a clear message: America takes security seriously. If America is willing to strip-search normal-looking white citizens for no reason, then certainly an Arab would know that he could not move about freely without attracting attention. Homeland Security reduced America’s privacy; and that was a good thing. If it came between safety and privacy, we would take safety every time. The 9/11 plotters conspired in private. Can I be any clearer on my point that privacy is dangerous? Thanks to the Department’s disrespect for both privacy and the Constitution, we lived in a safe society.

Not anymore. Democrats in the Homeland Security Department have already begun easing restrictions established under President Bush. Rather than viewing every American as a potential terrorist, Democrats assume that all Americans are good and peaceful. They no longer eavesdrop on random phone conversations. They allow Americans to travel with hair gel, personal lubricants, shoe polish, water bottles, shampoo and conditioner. They even smile and say: “Welcome to O’Hare International Airport!” to brown people wearing Muslim headdress, veils and Mohammedan robes. Rather than suspecting Arabs, they apologize for them and send them on their way without a boarding pass. They treat everyone with “decency and respect for constitutional liberty.” They say they want to “restore faith in the Constitution” after President Bush’s “abuses.”

This is no way to run a government. A President has one overriding duty: To protect the American people at all costs. President Obama and his Homeland Security Department mock that duty. Now, they view Americans with compassion and respect, not suspicion and rancor. They follow constitutional procedures and the Bill of Rights; they no longer hold terror suspects without cause or counsel. These idiots! We do not protect America by giving everyone liberty. We protect America by imprisoning the bad guys. Although we Republicans believe in the Constitution, we regard it the way it should be regarded: As optional advice. It would be really nice if we could give everyone habeas corpus and obtain warrants before searching them. But we would leave this country open to attack if we did. If we followed the Constitution—as President Obama suggests—our entire government would break down. Worse, terrorists, hoodlums and immigrants would overwhelm our borders, disturbing business and commerce. If torture, indefinite detainment, unlawful searches and eavesdropping protect this country from Muslims, we say: “Give us torture, indefinite detainment, unlawful searches and eavesdropping.” Good citizens have nothing to hide. In the 21st Century, we face many dangers. We believe that liberty is for criminals and terrorists. In that light, we believe that Mr. Obama and his soft-hearted Homeland Security Department are leading us down the path to ruin.

Democrats could not protect their own mothers, let alone the United States of America. They are a bunch of weak-willed, overintellectual cowards who would rather give an insane beggar welfare than tell him to get a job, get moving and get over it. They cannot even protect America from flu-infected pigs in Ohio and New York, let alone from terrorists in Pakistan. Some lesbian in the Homeland Security Department said yesterday: “We must accord proper respect for the dignity of the livestock before rushing to judgment about their health status.” This is Democratic rule for you: They would rather respect a hog’s rights than protect America from disease. Well, we are glad to provide the minority voice about security. When Republicans see a diseased hog, they do not worry about its “health status” or “dignity.” They kill it and bury it faster than you can say: “Don Rumsfeld.” The same goes for terrorists. When we see a terrorist, we do not worry about constitutional liberty or “proper interrogation procedures.” We lock the towelhead up, waterboard him and throw away the key. If some lesbian ACLU lawyer makes a fuss about it, we might let an Army Colonel look into his case. But if not, it’s Game Over for Habib. Democrats say we disparage the principles that define America. We say those principles don’t apply to terrorists. That’s the difference.

We are committed to preserving democracy in America. For that reason, we will resist every Democratic effort to weaken procedures intended to sniff out terrorists, criminals and immigrants. George W. Bush knew that following the Constitution would not protect this Nation in the 21st Century. When Republicans controlled Congress, they certified the President’s belief by eradicating basic liberties in order to bolster security. Now, the Democrats are determined to reverse our work. We will resist to the last man. We would rather die than see every American treated with respect and dignity. We would rather die than follow the Constitution in every case. We will not “cooperate” or “compromise” when it comes to protecting our children from Muslims and liberal university professors. We will not “go along with the program” to increase free speech rights or abolish domestic warrantless wiretaps. No, we are determined to hold the line against liberty, because liberty is dangerous.

In a word, President Obama is playing with fire. He thinks he is defending liberty and principle. He thinks he is restoring America’s honor because he says that President Bush tarnished our image abroad. In fact, he is opening the door to terror attacks, anarchy, discord and moral rot. And who gives a flying fuck what Europe thinks of us? As long as the good people of Kentucky support me, I am happy. I don’t give a shit what the Parisians or Belgians think. Yet Mr. Obama would rather placate some communist in Holland than protect the American people from ruthless Arab suicide bombers. He would rather give the Iraqis wedding cake and free champagne than kill them once and for all. Screw free elections; let’s just kill all of them and be done with it. Who really cares whether some Iraqi goatherder votes for another Iraqi goatherder to represent him in a sham parliament? I certainly don’t. This is the Republican way, and these are the values we intend to serve in Congress as long as the Democratic dictatorship continues: Security over liberty; peace over the Constitution; commerce over dignity; privilege over rights; suspicion and rancor over reconciliation and cooperation. We will not work with the Democrats. To the contrary, we will seek to scuttle every single legislative initiative they put forward.

We look forward to resisting the Democrats. Although we would much rather hold a majority in Congress, it is quite fun to simply sit back and whine about everything the Democrats do. After all, we are not really obligated to do anything. We do not have the votes to pass what we want, so why not have some fun and just frustrate everything the Democrats try to pull? In the process, we can stand up and rail about security and our values. We are the minority voice. We will be heard. And we will never trust a Muslim, no matter how well-dressed, well-educated or well-meaning. He’s just another terrorist, and he can stick our Constitution where the sun shineth not. It wasn’t even written for him, anyway. Despite all this, we worry about this Nation with Democrats running the Homeland Security Department. Before you know it, they will be inviting Osama bin Laden and his children to Chuck E. Cheese® for pizza, beer and a kumbaya singing session with Nancy Pelosi.

This is Homeland Security in the Age of Obama. We want no part of it. Nonetheless, we still have a Second Amendment. If the Homeland Security Department cannot protect our children, then we will do it ourselves with our own rifles, pistols and shotguns. In America, we know how to defend hearth and home. And we will.

BREAKING CONTRACTS : IT'S ALL ABOUT POWER

AN ESSAY

After the AIG scandal broke last week, I wrote an essay explaining that there is no legal barrier to breaking contracts. Recently, Americans have been horrified to see federal bailout money paying AIG executives whose conduct helped create the economic crisis. This popular outrage, in turn, sparked a debate as to whether the government can abrogate private contracts. Most Americans seem to think that private contracts are inviolable. They seem to think that contracts have a mystical power that makes them immune from State interference. President Obama’s economic adviser, Larry Summers, went so far as to say: “This is a country of laws. The government cannot just abrogate private contracts.”

Yes it can. Government enforces contracts by sovereign grace. If the sovereign decides that a particular contract will be enforced, there is nothing the aggrieved party can do about it within the law. Of course, this would not set a good precedent. After all, people only do business with each other if they know that the law will force the other guy to honor his promise. But this is a policy concern, not a legal one. In essence, the power to enforce contracts stems from pure political might. It has nothing to do with abstractions, principles or sacred vows. And it certainly has nothing to do with whether the United States is a “country of laws.”

In The Prince, Niccolo Machiavelli wrote: “The principal foundations of all states, whether new, old, or mixed, are good laws and good arms… [and]… there cannot be good laws where there are not good arms…[and] where there are good arms, there are bound to be good laws.” The Prince, Chapter 12 at p. 52. Machiavelli’s clear prose reminds us that a “nation of laws” cannot exist without “good arms,” namely, powerful executive authority. Law cannot exist without force, nor can it even come into being without an original coup. In the United States, there would be no Constitution or laws had the colonists not risen up and defeated the British army through “good arms.” Through “good arms,” the United States maintained the essential stability it required to establish “good laws.” Thanks to protection under “good arms,” commercial men could depend on stable laws. They could count on courts to enforce contracts against those who broke their promises. Americans grew accustomed to a “legal State” in which they could dependably rely on courts to enforce private bargains with neutral, reasonable laws.

That remains the case today. Larry Summers did not voice an insane sentiment when he said: “This is a Nation of laws.” Most Americans agree with him. They take pride in the fact that they live in a society in which courts neutrally apply legal principles that technically treat everyone equally. After all, a “Nation of laws” differs from a “Nation of men,” in which a legal rules flow from the wanton caprice of a single individual. In America, we have laws. In theory, the laws apply equally to everyone, and—as the logic goes—that is a good thing.

But these “defenders of the law” forget that their laws would mean nothing without executive power. Courts enjoy power because they can count on the executive to enforce their “principled” decrees. In contract law, they ruminate about abstract ideas like bargain, consideration, benefit, detriment, equality of exchange, restitution, rescission, reformation, mistake, parol evidence and reliance. They even attempt to allot money damages to aggrieved parties according to fixed, “neutral” rules. They then scribble out judgments and force the offending party to pay. If he does not, the court has no institutional power to do anything but write strongly-worded opinions. To enforce its decrees, it must turn to its institutional partner: The Executive. Only the executive has the billy clubs, guns, prisons and handcuffs to browbeat the offending party into paying up. If he does not obey the court, the executive takes away his property or his liberty. To avoid that fate, the offending party does what the court tells him. That is true power: The power to compel. Cf. Kant (“Law is linked to the authority to compel”). Introduction to Legal Doctrine, The Metaphysics of Morals (Einleitung in die Rechtslehre § D, Die Metaphysik der Moral). The executive is powerful because it can directly inflict pain on bodies and take away property. And as Machiavelli knew, nothing compels men more than threatening their property: “[B]ut above all, [a Prince] must abstain from taking the property of others, for men sooner forget the death of their father than the loss of their patrimony.” The Prince, Chapter 17, p. 72.

What good is it to be a “nation of laws” if the laws themselves are stupid or degrading? That was the question Americans asked when they found out that federal bailout money paid multimillion-dollar bonuses to scallywag AIG executives last week. In my view, waving your hands in the air and pontificating about “our Nation of laws” is absurd. Quite simply, the whole rhetoric about the United States as a “nation of laws” is a vacuous talisman. If it is necessary to allow brigands to take money that would not have been available without their skullduggery because that is what “the law dictates,” then I say the “rule of law” is just as stupid as the law itself. During his confirmation hearings in the United States Senate, Chief Justice John G. Roberts repeatedly pledged that he would issue opinions: “Consistent with the Constitution and the rule of law in the United States,” as if the “rule of law” were synonymous with goodness. What is all this nonsense about the “rule of law?” Laws come from men. Men can be stupid. So can their laws. Therefore, to use a lawyer’s logic, the “rule of law” can be stupid, too. I reserve no exalted place in my heart for the “rule of law.” There once were laws that permitted slavery. Under the “rule of law,” men could own other men in this country. If a law is bad, so is “rule under the law.” For that reason, I reject this hypnotic, reflexive insistence on the “rule of law” in every single situation in which legal rules come into question. For me, it is no answer to mouth the words “rule of law” when defending legal principles that lead to intuitive mischief.

Yet there is no need to even reach the question. We need only worry about the “rule of law” if we assume that the executive will enforce legal decrees. In essence, law is about power. Our constitutional system arose from power and does its best to diffuse power across several institutions. In theory, our legislative, executive and judicial branches are supposed to be “equal” in power. In practice, however, we see how artificial and wooden this distinction truly is. After all, who really has power? Only the branch with the power to compel men’s bodies and take their property has real power. Courts have the power to write erudite opinions on archaic constitutional provisions. Legislatures have the power to draft voluminous bills that attempt to better society with new rules and regulations. But only the executive has the power to shoot, kill, take, invade, imprison, threaten and enforce. Without the executive, neither legislative nor judicial “power” would mean anything. Courts and legislatures are like powerless children who depend on their father to do the muscle work. Only the executive has real power, because it is the branch with the “good arms.” And, in Machiavelli’s parlance: “There are no good laws without good arms.” The Prince, Chapter 12, p. 52. Only real power assures that the law has any force at all. On this point, Machiavelli again puts it best: “For, between an armed man and an unarmed one there is no comparison whatsoever, and it is not reasonable that one who is armed should willingly obey one who is unarmed.” The Prince, Chapter 14, p. 63. In this light, should the executive in this country really listen to carping about the “rule of law” in enforcing abhorrent private contracts for AIG executives? No. In Machiavelli’s terms, it would not even be “reasonable” for the “armed” executive to obey an “unarmed” court.

My sentiments here will undoubtedly cause discomfort among legal “process lovers.” Indeed, my article last week prompted a response that: “This is no way to run a government.” On this point I agree. Laws should be followed. Laws provide stability and comfort to commerce, and that inures to everyone’s benefit. When men know that they can obtain a peaceful remedy from a court, they will refrain from private retribution and “collection.” In almost every case, the executive should enforce legal decrees that compel private obligations. But that does not alter the fact that executive enforcement is essentially discretionary. Only the executive is armed; the court has no real power to compel anything. In rare cases—as here with the AIG bonus fiasco—the executive has the institutional discretion to refuse to honor legal decrees. After all, if private contract law leads to a result so repugnant that it reaffirms Charles Dickens’ famous dictum from Oliver Twist: “If this be the eye of the law, sir, then the law is an ass,” then the executive can step in to reverse the outcry. True, some may say that such “indulgences” to popular sentiment are the first step on the road to dictatorship and capricious government. But I say that it is worse to allow perverse “legal” results than to suspend the law in an exceptional case to avoid public indignation.

I have little patience for those who fanatically put their faith in law. Positive law—meaning written laws passed by popular majorities for majority purposes, ostensibly according to logic and human reason—does not invariably lead to good results or justice. In Hitler’s Germany, for instance, positive law—passed by democratic majorities—forbade marriages between Jews and Gentiles. Later German laws made it “legal” to exterminate Jews at concentration camps. This is an extreme example, but it shows that positive law should not be a talisman. Positive law can be bad. For that reason, trust in the “rule of law” can also be misplaced.

We all want our bargains protected. But that does not mean we should allow AIG Executives to scream “rule of law” to create a result at fundamental odds with our common sensibilities. Our common sensibilities may not be written down in a statute or casebook, but they still matter. On this point, we can turn to the executive to exercise its inherent power to deny enforcement.

YOU CAN'T BREAK A CONTRACT? OH YES YOU CAN

AN ESSAY

Yesterday I satirized AIG’s Financial Products Executives for receiving colossal bonuses from government bailout money despite their active roles in ruining the economy last year. Two days ago, the New York Times revealed that AIG executives received over $165 million in manager bonuses. Although that amount pales in comparison to the $150 billion allotted to rescue AIG, it is the insolence that offends. At a time when most Americans struggle to find work in a toxic economy, these rapacious executives award themselves huge bonuses with government money intended to help the weak. It is something akin to stealing welfare money to buy a yacht. Yet here we see the institutional problems associated with the government bailout plan. We have given out so much money to so many private companies. Obviously we cannot account for all of it. And private companies are private companies; we cannot rightly be shocked that some executives will “take a little extra for themselves.” For wealthy corporate leaders, money is the ultimate temptation. Put them in a room with money and they will not keep their hands off.

But I do not write today simply to criticize rich corporate people. I enjoy doing that, but I recognize that it can easily descend into shrillness. Rather, I want to address a more troubling legal aspect to this bonus boondoggle: The contract issue.

Who allowed AIG executives to receive their bonuses at a time like this? Did anyone consider how bad it looks to hand government bailout money to wealthy executives, especially the ones who created the problem in the first place? Why is government allowing this? Yesterday, President Obama reacted to the outrage over the bonuses by swearing to stop the payments. But a different administration spokesman said he could do nothing to stop the payments, because AIG was “contractually obligated” to pay them. Lawrence Summers, Obama’s Director of the National Economic Council, said: “We are a country of law. There are contracts. The government cannot just abrogate contracts. Every legal step possible to limit those bonuses is being taken by Secretary Geithner and by the Federal Reserve system.” In other words, as wretched and tasteless as the bonuses may be, the government could do nothing, because these executives signed contracts with AIG last year, and now AIG must pay the bonuses. After all, according to Mr. Summers, we are a “country of law,” and a “country of law” does not intervene to break promises made between two private parties.

I beg to differ. Our “country of law” enforces contracts between private individuals by sovereign grace. Courts may weigh legal fineries in order to determine who owes whom what. Indeed, scholars and jurists have penned endless tomes concerning the ornate technicalities of individual contractual obligation. But in the final analysis, a judge’s words mean nothing without the sovereign’s sword to enforce them. For example, a company may promise to deliver 40,000 tons of steel in return for another company’s promise to pay $40,000,000. If the selling company fails to deliver, the aggrieved buyer can go to court and sue for contract breach. He may obtain a judgment entitling him to money damages or specific performance. In other words, the law fully supports the buyer’s position. But once the judgment issues, it falls to the sovereign to force the seller to pay money or deliver the goods. If the sovereign says: “I will not enforce this judgment,” the buyer has no remedy. In this example, we see that contract law means absolutely nothing without brute executive force. In reality, the executive overwhelmingly enforces legal decrees involving contracts because it wants people to feel assured in their bargains. Yet that does not change the fact that the executive retains the final discretion whether to enforce a contractual obligation. After all, the law deals with compulsion. No one feels compelled to do anything unless a stronger party puts a gun in his face or twists his arm with sufficient strength. The executive has the guns and the arm-twisters. Without it, courts mean nothing.

Mr. Summers said: “There are contracts. The government cannot just abrogate contracts.” Yes it can. If President Obama really wanted to, he could stop the payments to AIG’s executives. True, he would face enormous opposition from lawyers and jurists, but as a practical matter, he has the power to interfere with private contracts. Courts would rule in the executives’ favor. If AIG refused to pay the bonuses, the executives could sue AIG for breach; and they would win. After all, the law favors vested contract rights; and vested contract rights favor those with superior bargaining power. But after the executives win, they would have to turn to the executive to force AIG to pay. Here, President Obama (or his State law counterpart: The Governor of New York) could intervene. He could order the Sheriff to stand down and refuse to enforce the Court’s judgment against AIG. At that point, the executives would probably try to sue the executive on constitutional grounds. They would argue that the President’s action deprived them of “property” without Due Process under the Fourteenth Amendment, or that the State Governor’s action “impaired the Obligation of Contracts” under Article I § 10. The Supreme Court would probably agree with the AIG executives, since Chief Justice Roberts and his Republican majority invariably support business and contract rights. Again, however, the Court would have to turn to the executive to enforce its long-winded legal reasoning. Do you think the executive would take action against itself? Of course not.

This is not as radical a position as it sounds. There is precedent to support a President’s refusal to heed the Supreme Court’s conclusions. In 1832, the United States Supreme Court held unanimously that President Andrew Jackson could not relocate the Cherokee Nation to Oklahoma from its ancestral home in Georgia and Tennessee. Worcester v. Georgia, 31 U.S. 515 (1832). The Court reasoned that the United States entered into a treaty with the Cherokee, and the treaty forbade such territorial incursions. The President said: “John Marshall made his decision; now let him enforce it!” Jackson sent an army into the Cherokee Nation and evicted the natives from their homes. The Supreme Court’s judgment had no practical effect, even though the law favored the Cherokee. This example shows how a determined executive can utterly ignore judicial pronouncements, even if he acts contrary to law. Again, we see that law depends on force, and only the executive controls State-sanctioned force. If the executive wants to ignore the law, there is little the other branches can do. Congress could try to impeach the President. But impeachment has less to do with the law or the Constitution than with political favoritism. If the President has enough allies in Congress, he will not face impeachment. Andrew Johnson faced impeachment in 1867 because a Republican majority in Congress detested his Reconstruction Policy. Bill Clinton faced impeachment in 1998 because a Republican majority in Congress did not like him as a person and because he was a Democrat. Neither President committed a gross infraction against the Constitution; politicians in Congress simply did not like them.

President Obama enjoys immense support in Congress. Nancy Pelosi and the Democrats would never take action against him if he intervened to stop bonus payments to AIG’s executives. In fact, such a move would be entirely consistent with the President’s mission to “clean up Wall Street.” The AIG executives would whine and moan and wave the Constitution in the air. But Presidents must think beyond the law. President Obama is trying to rebuild trust in an economy that nearly destroyed itself through avarice. Men like the AIG executives are prime suspects in this meltdown. While those executives technically hold enforceable rights to bonuses under established contract law, this is a case in which the law stands at odds with historical circumstances. If contract law simply functions “according to plan” in these circumstances, the men responsible for destroying the economy—and triggering the bailout—will actually receive a windfall at taxpayer expense. In other words, these men would not have gotten any bonuses if AIG collapsed last year, but because they acted wrongly, they prompted a government bailout. And now the bailout lets them get their bonuses. This is a perverse result; but it is also the legal result. I argue that the President has discretion to set aside “normal legal procedure” when “normal legal procedure” would fatally undermine public confidence in the entire system. This is precisely such a case.

Process-minded legal theorists will undoubtedly disagree with this approach. They will argue that legal rules—especially contract rules—can never be relaxed, no matter how ridiculous (or even ironic) their consequences. Contract rules are intended to provide predictability and reliability in commerce, and if the government denies their effect in one case, then commercial men will never again take chances because they will never know whether the State will uphold their bargains. In this case, they would say that AIG must pay the executives’ bonuses because “bargains are bargains,” and our economy depends on confidence that the law will honor every private bargain. Process theorists would likely agree that it looks terrible to pay bonuses to men whose conduct caused the economic crisis, but they would say that maintaining faith in legal process is more important than averting a perverse result.

I do not eschew legal process. It plays an essential role in our constitutional order. But I venture that blindly following legal rules in every circumstance is more dangerous than making prudent exceptions when real crisis beckons. Today, we find ourselves in a unique moment. Never before has government so massively intervened to prop up private enterprise. This is a new adventure for government, and it will not succeed unless the People have faith in its purposes. If the economy collapses, neat contract rules will mean nothing. To that extent, maintaining public trust in government action should be the President’s foremost concern. The public rightly loses trust when it sees scoundrel executives taking government money to pay for their bloated bonuses. Although the executives may have contractual rights to their money, honoring those rights may do more harm than good to the overall recovery effort. I argue that maintaining public trust in the recovery effort takes precedence over private contract rights in these limited circumstances. If the recovery effort fails, everyone loses. But if the government stops AIG executives from receiving their bonuses in this unique case, only those few men lose money they do not even need. Balancing those harms against each other, I conclude that the President should refuse to enforce the executives’ contractual claims for bonuses. I am strengthened in my conclusion that the executive has even greater discretion because the AIG managers would not even have been in the position to receive bonuses if the government had not supplied the bailout money to pay them. He who pays the piper calls the tune, and in this case, that means the government can impose some restrictions on pre-existing contract rights.

There is nothing sacred about contract rights. Government compels private parties to adhere to their contractual obligations because that is the most efficient policy for society, not because some magical force animates private promises. Commerce functions best when people do what they promise. But there is nothing intrinsically good or noble about contracts. They function by sovereign grace, not a priori principle. Thus, there is no fundamental truth to the assertion that “contracts are contracts.” Contracts are valid only to the extent that the executive is willing to enforce legal decrees. And the executive has many duties beyond enforcing private contract judgments. Today, the executive confronts a massive financial crisis that threatens countless Americans. It is attempting to redress that crisis through bold, general action. That general action will inevitably impact some specific rights.

President Obama should not miss the forest for the trees in this situation. He can deny effect to these executives’ contracts without undermining faith in contract law as a whole. I think most Americans would understand his reasons if he did exactly that. Permitting the executives to benefit from government bailout money in this case sends a far worse social message than interfering with a particularly unjustifiable private bargain. After all, these bargains would have meant nothing if the government had not supplied the money to honor them. In that light, can the executives really complain that the government modifies those bargains?

These scoundrels are still getting their massive salaries. They still have homes, high-paying jobs and nice things. That is a whole lot more than most people have as they struggle to cope with this crisis. Frankly, their whining about “contract rights” falls especially flat when I consider just how many other advantages they enjoy. In a crisis like this, government must make exceptions that will anger a few private interests. That does not mean the government does not care about the law. In fact, sometimes a government best preserves faith in the law by refusing to apply it in cases in which it arouses public disgust. This is exactly such a case.

YOU CAN'T ESCAPE THE POLICE -- OR THE EXECUTIVE

AN ESSAY

In law school, I loved Constitutional Law because it addressed issues larger than mere property ownership. It provided insights into American history and American values. It also revealed our government’s intricate structure, as well as the theories intended to preserve that structure. When the Framers drafted the Constitution in 1787, they had only one thing in mind: To ensure that Americans did not live in an absolute monarchy.

As a law student, I did not have time to consider the historical context to my studies. I simply tried to memorize the catchphrases and verbal formulas needed to correctly analyze questions on an examination. Thankfully, however, I had enough intellectual curiosity to recognize that something much larger was afoot in constitutional doctrine. These cases, I thought, discuss monumental questions about government, power and civilization that have persisted for centuries—and in many different countries than the United States. After law school, I readjusted my mind away from pure legal doctrine. I freshened my legal knowledge with my background in history, language and literature. With time, I began to truly understand Constitutional Law.

In 1787, Americans did not want absolute monarchy because they saw that unchecked executive power can subjugate a society. During the colonial period, royal agents roamed at will in North America, levying taxes, conducting searches, suppressing political dissent and throwing people into prison without charges. By constitutional text, the Framers clearly delineated between legislative, executive and judicial authority. Any power delegated to one branch could not be exercised by another branch. Article I specifically listed Congressional powers, and they far outnumbered executive powers. Benjamin Franklin so loathed executive power that he proposed a two-branch government. He thought that a Congress and a Supreme Court would be sufficient. In the end, the Framers agreed on a three-branch system, confident that the executive would remain in check.

But has the executive remained in check? And why were the Framers so wary about the executive? Even during law school, I saw the reason. Executive power is ominous because it is uncertain. The Constitution simply says: “The executive Power shall be vested in a President of the United States of America.” Article II, § 1. There is no further definition. Later in the text, the Article II tells us that the President shall be the “Commander in Chief of the Army and Navy of the United States,” Article II, § 2, and that he “shall take Care that the Laws be faithfully executed.” Article II, § 3. What can we infer from these cryptic words? We see first that the President has “the” executive power. Second, we see that the President controls the military. We can infer that the military, then, is under executive control. We begin to see the nature of executive power: It is armed force. The executive is the guy with the guns. This accords with historical understanding. Absolute monarchs in Europe wielded absolute power because they controlled the armed forces. If someone did something they did not like, they simply crushed them with military power.

He who controls the army generally controls everything. This has been true since Greco-Roman times. Roman emperors could never count on lasting power without the army behind them. In medieval times, lords dominated their lands because they had armed knights to intimidate their rivals. And in the era of early European nation-states, Kings kept power by marshaling large national armies that could crush dissent. The Framers knew this history well. They knew that in England, absolute monarchs with absolute executive power could do much more than crush dissent. They could alter a nation’s religious beliefs, summarily punish “undesirables” and keep people imprisoned without charge. They could penalize speech simply because they disagreed with its content. Apparently, the Framers thought they could create a “tempered” executive that would maintain military control without using it to tyrannize the population. They trusted the Constitution’s divided structure—as well as human reason—to prevent individual Presidents from running amok. They also put their trust in something that seems archaic to us today: An oath. Incoming Presidents must publicly declare: “I solemnly swear [to] faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Article II, § 1, Clause 7. Lesser executive officers must make a similar oath “to support the Constitution.” Article VI, § 3.

Are oaths and hypertechnical textual niceties enough to keep executive power in line? I have often marveled at this Nation’s ability to keep the constitutional order. After all, a ruthless President could easily use his military power to fatally undermine the supposedly “coequal” Congress and Supreme Court. After all, in practical terms, what could stop the President from ordering the army to take over the Supreme Court if it rendered a decision he did not like? True, another court would say he needs to show cause for “seizing” the justices under the Fourth Amendment, but if the President controls the executive, who will execute the law against him? Courts would merely breathe hot air in his direction. Without force, legal pronouncements mean nothing. Cf. Immanuel Kant, The Metaphysics of Morals, Introduction to Legal Doctrine, § D (“The law is bound up with the authority to compel.”). Perhaps military officers would refuse to carry out such an order. But military officers are executive officers loyal to the President. If a President were truly ruthless, he would simply put guns in the faces of anyone who stood in his way. Only his “oath” prevents him from doing exactly that.

We do not yet live under an executive dictatorship. But that is not to say that the executive has not amassed enormous power in our everyday lives. Because executive power is so fluid, it can easily spawn new subsidiary organizations to do its work. In 1787, the Framers mentioned only the “Army and Navy” as executive weapons. In the intervening generations, however, the executive has added new weapons to its arsenal.

In both the federal government and in every State, executive institutions have organized police forces. I wrote several months ago that modern-day uniformed police forces were nonexistent in the 18th Century. Monarchs used “constables” and “magistrates” to carry out individual arrests and investigations. There was no generalized “social surveillance” or “patrolling” as there is now. Monarchs also used their constables and magistrates to summarily detain people without charge. The Framers were keenly aware of this and recoiled from unjust detention practices. Reformers in both America and France associated imprisonment with the “excesses of sovereign power” and “arbitrary royal decision.” Michel Foucault, Discipline and Punish (1975), p. 119. But in the 19th Century, executive power introduced “centralized police” to carry out a whole new program of “[searching for] criminals, urban surveillance and political supervision.” Id. at p. 213. This was a new development, because unlike the old royal magistrates, these police forces concerned themselves with “minuteness of detail,” creating a “permanent, exhaustive omnipresent surveillance” through “thousands of eyes posted everywhere, mobile attentions ever on the alert.” Id. at pp. 213-214. Executive intrusion into everyday life, then, ceased to be arbitrary or sporadic. Through modern police practice, such intrusion became systematic.

Modern police power does not just supervise; it also collects information about everyone and everything. Foucault noted that 19th Century police forces assembled “immense texts, reports and registers” that compiled a “permanent account of individuals’ behavior.” Discipline and Punish, at p. 214. In this light, we see that the executive controls far more than brute military force. It also controls an insidious surveillance apparatus that obtains knowledge about almost every citizen. The Framers could not have foreseen this development. Yet it has undeniably increased executive power, for increased knowledge inevitably leads to greater political authority. The Constitution’s text can do little against modern police practices, because the text dates from an era when such practices did not exist. The industrial revolution introduced monumental social and philosophical changes, including the social tendency to more scrupulously “discipline” individual citizens as “parts” in an efficient new industrial economy. But these changes postdated the Constitution. Without core constitutional text to constrain them, executive practices grew freely to accommodate the new society.

I mention all this to underscore how powerful the police can be. This troubles me, because I know—as a matter of constitutional law—that no governmental branch should wield excessive power in relation to the other two. Modern police power translates into increased executive power. Modern police power was largely unknown to the Framers, and the Constitution serves as a poor check upon it. The Framers did not live in a world where uniformed executive deputies roamed the landscape exercising executive power over every citizen within their view. True, one may argue that constant executive power vindicates the legislative will because it leads to more rigorous enforcement. But enforcement carries a price. After all, the People created the Constitution on the understanding that their individual rights would be protected. Overly zealous police authority creates untold opportunities for government to violate those rights. It also creates an aura of suspicion between government and the individual, because police authority constantly watches individuals with a view to “catching wrongdoers.” No one likes to be watched, especially when he knows that the observer is scrutinizing every action for signs of “illegality.” Worse, the modern police officer has enormous discretionary power. It is his call whether or not to arrest someone for something he sees. That is genuine executive power: One man decides—without consulting a court—whether another man goes to jail. If he is in a good mood, he may look the other way. If he is not—or if he simply does not like the man he watches—he may decide to lock the “suspect” up. Just as in Henry VIII’s time, one man’s bodily liberty and comfort depends upon the whim of another man.

In America, we do not live in a true “police state.” But we do live with an executive that enjoys far more power than was originally intended. To illustrate just how dangerous modern police forces can be, consider the German example. Recently, I learned that in early Nazi Germany a massive power struggle took place between Heinrich Himmler and Hermann Goering for control over Germany’s local police forces. Although we tend to think that Hitler had absolute control over Germany’s executive power from the moment he seized power in 1933, in fact it took several years for him to consolidate his enforcement apparatus. Without controlling all local police forces, the Nazis could not implement their horrific surveillance and detention practices. To literally spy on, arrest and detain people, the Nazis needed armed men with “the appearance of legal authority.” Himmler understood that, and he knew he could increase his own political power by consolidating control over the police. By 1935, he absorbed all local police forces under SS control, which in turn allowed him to investigate, arrest, detain and “legally kill” people at will. Put simply, without a comprehensive police force, the Nazis could not have perpetrated their atrocities. The police knew where to find people and where to arrest them. They had all the information they needed.

Although such excesses could not happen in America today under current law, this example shows how dangerous the police can be in a modern state. If applied to the wrong ends, police forces can make any citizen “disappear.” They have the information. They have the brute force. And they have the “legal authority” to carry out a tyrant’s wishes. In other words, they have the capacity to allow executive domination over society. They are a miniature “civil army” that stands ready to make war on any private citizen. In America, we can only trust that principled judges and elected officials will faithfully interpret the Constitution to protect us from unbridled executive power. Even then, judges stand at a disadvantage, because—as Hamilton said—they have only “reason,” not the “purse or the sword.” Federalist No. 78. The executive has the sword; and in unscrupulous hands, the sword beats reason.

During President George W. Bush’s presidency, America flirted with executive excess. Although the Framers could not have foreseen the power of modern police forces, they did know that executive tyranny depends on arbitrary detention. That is why they specifically safeguarded the “writ of habeas corpus” in the Constitutional text. Article I, § 9, Clause 2. Basically, any detained person may demand to know the legal reason why he is being detained. He may submit a “writ” to the person detaining him, which requires the jailer to tell a judge the exact legal authority authorizing detention. If there is no legal authority authorizing detention, the prisoner must be released. Habeas corpus puts a premium on individual liberty, and it forces the executive to follow written law when it detains people. After all, the worst tyrants detain people for no reason other than personal whim. Under habeas corpus, that is not allowed. Nonetheless, during the “War on Terror,” President Bush repeatedly detained suspects without charge, hearing, or access to counsel, sometimes for years on end. Even a generally conservative Supreme Court recognized that this represented a dangerous increase in executive power because it directly violated constitutional text. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. __ (2008). Still, the Court could not categorically agree that Bush acted wrongly. They never reached anything approaching consensus on detainees’ rights. Dissenting justices even went so far as to say that the President could summarily jail anyone on his own authority as long as he tendered a “national security” reason or afforded some “modified” hearing process.

Bush’s actions set a bad precedent for executive power. As we have seen, executive power is hard to define and even harder to contain. Once an executive institution implements a practice without criticism, it is impossible to take it back. It “becomes” executive power. By manipulating public fears about national security, Bush managed to circumvent a core constitutional protection for all Americans. The Supreme Court’s reaction to this usurpment left much to be desired. The executive is strong enough to sustain itself even if the Court does not intervene against it. But when the Court is partially complicit in executive excess, it irretrievably damages individual liberties.

In short, Bush added another weapon to the executive’s considerable arsenal. We should fear the executive because the executive has guns, wiretaps, roaming investigators and the power to detain. In coming years, we can only hope that the American people act to curtail some of this accumulated executive authority. Still, the executive does not lightly relinquish its powers. Why should it? Can an “oath” really stand up to armed men? Will the People deny executive authority if the executive trumps up “national security” fears? In the final analysis, we live under a limited government of separated powers. But when one branch has overwhelming practical and institutional advantages over the others, can we really trust it to protect us? Perhaps I exaggerate slightly to make my point, yet my point remains: There is nothing but tenuous principle to defend us against executive tyranny. We have already acquiesced in many abuses. A truly unscrupulous executive has the weapons to sweep away any opposition, judicial or legislative. All he needs is an “emergency” to rally frantic public support.

EXECUTIVE BEATS COURT - AGAIN

AN ESSAY

In Discipline & Punish (Surveillier et Punir)(1975), Michel Foucault discusses the origin both of prisons and the police force. Both prisons and police forces are relatively new developments in Western society. And they both perform “surveillance” functions. In Foucault’s view, industrialized society is a “disciplinary” society, and discipline only works when the ruling power carefully scrutinizes its subjects with a view to controlling, exploiting and—ultimately—improving them. Good State surveillance, therefore, is essential to achieving these ends.

Professional police forces perform “surveillance” on the population. They not only investigate reported crimes, but they also closely observe everyday behavior in a quest to find violators. They subject everything within their gaze to constant judgment to determine whether they see any “violations.” In modern society, the police act as the sovereign’s all-seeing eye. In order to maintain the disciplinary State, the police keep watch on all the sovereign’s subjects, rigorously monitoring even the most banal behavior for infractions. To quote Foucault, modern police power “must bear ‘over everything’: …the dust of events, actions, behavior, opinions—‘everything that happens;’ the police are concerned with ‘those things of every moment,’ those ‘unimportant details[].’” Discipline & Punish, p. 213. In a word, modern police power embraces all actions all the time.

Today, we are accustomed to public surveillance. It is part of modern life. But we do not even really consider how revolutionary a police force was when it first appeared in the 19th Century. As we understand them, police forces did not exist when the Framers introduced the Bill of Rights in 1791. To that extent, most basic American criminal procedure rights were not answers to modern police practice; modern police practice arose after the Constitution was written. If anything, many guarantees contained in the Bill of Rights (ie, protection against “unreasonable searches;” “compelled self-incrimination;” “quartering of soldiers in private residences;” and “warrants,” to name a few) were directed toward the abusive practices of occupying British armies during the colonial era. Yet today, jurists attempt to reconcile 18th Century legal abstractions with domestic practices developed in the 19th Century and beyond. This is a difficult venture, and it is understandable why the police can do as much as they can. If the Constitution were written in 2000, doubtless many well-established police practices would be outlawed as a matter of individual right. But our Constitution dates from 1787. It was reacting to royal abuses by George III in the 18th Century, not domestic practices introduced in a completely different historical context. Thus, modern police forces had a clean analytical slate when they emerged in the 19th Century.

From whence come the police? As Foucault recognized, the police are the “eyes of the sovereign.” In strict form, the “sovereign” or “King” is the Executive Branch. In the American constitutional system, the federal Executive power is vested in the President of the United States, see U.S. Const. Art. II, § 1, while the State Executive power is vested in State Governors under their respective Constitutions. In constitutional terms, these Executive powers have authority to “faithfully execute the laws,” see U.S. Const. Art. II, § 3, and that means they can create police forces. This is exactly what State governments did in the 19th Century when they minted municipal and State police forces. And the federal government followed suit by creating the Department of Justice and Federal Bureau of Investigation (FBI). These new Executive “offshoots” set about developing practices to enforce the myriad laws that arose well after the Bill of Rights came into effect.

In effect, the “myriad laws” that sprang up in the 19th Century coincided with industrial development. In 1787, the United States was not an industrial power. It was largely an agrarian, trading Nation. Heavy industry did not yet exist. There was no steam engine, railroad or electricity. By 1850, the United States was a leading industrial power. This change mirrored changes in values. The law enforced the values of the new society. In the mid-19th Century, States wanted productivity. Productivity in industrial society, in turn, demanded respect for property and detailed attention to work. Foucault reasoned that “discipline” was essential to enforce these values, and “surveillance” was the way to maintain discipline and attention to detail. Police forces represented the ideal method to “keep an eye” on the population and to ensure adherence to “industrialized” laws.

To achieve maximal surveillance and obedience to the new values, the police had to develop specific practices for enforcement. Searches, interrogations, undercover operations and wiretapping all helped them “see” behavior that potentially violated the new laws. Only the constitutional prohibitions laid down in 1791 blocked their way. Certainly there were searches and interrogations in 1791, but they did not measure up to modern police procedures. In 1791, constables investigated crime. There were no uniformed police on the street at all times. There were no central police offices or databases storing information on offenders. Constables only began their work when someone lodged a complaint. They did not stand on the street observing potentially criminal behavior. By 1850, uniformed police did prowl the streets observing potentially criminal behavior. There were central police offices that constantly strengthened crime detection and suppression. They were enforcing the sovereign’s laws 24 hours a day, with or without specific complaints. How were they to know whether they were violating constitutional principles that could never have contemplated the historical circumstances in which the State now found itself? After all, the Constitution said nothing about “surveillance.” Such a thing really did not exist in 1791. Yet now it was the bulwark of police practice.

It fell to the Judiciary to determine whether modern practices violated the Constitution. In the American constitutional system, many refer to the Judiciary as the “Third Branch” or—as Hamilton said—the “Least Dangerous Branch.” Federalist No. 78. Historically speaking, the American Judiciary was completely unprecedented because it was intended to be “independent” of both the Congress and the Executive. In Hamilton’s words, the Judiciary’s power lay solely in its “judgment,” not in “the sword or the purse.” Id. In theory, the Judiciary has the sole power to say whether any action by either the Executive or the Congress violates the letter or spirit of the Constitution. In practice, however, the Judiciary rarely exercises its independent authority. Especially in modern times, the Judiciary defers to the Executive or Congress without ever exercising the unprecedented “judgment” power that Hamilton envisioned.

Foucault understood this judicial weakness. He wrote that the police—and by extension, the Executive—offered “slight resistance to the reorganization of the Judicial power,” because the police have “never ceased to impose [their] prerogatives upon it, with ever-increasing weight, right up to the present day.” Discipline & Punish, p. 215.

These words have special resonance as they apply to the United States Supreme Court in its occasional confrontations with the Executive and the police. Amazingly, until the 20th Century, the Supreme Court never interfered with State criminal practices; it simply ignored the question by reasoning that the Bill of Rights did not apply to State governments. In the 1950s and 1960s, the Court took a bolder stance on the Bill of Rights, holding in numerous decisions that the prohibitions laid down in 1791 not only acted upon State governments (and their police forces), but restricted their criminal practices as well. Famous decisions such as Mapp v. Ohio, 367 U.S. 643 (1961), Miranda v. Arizona, 384 U.S. 436 (1966), Duncan v. Louisiana, 391 U.S. 145 (1968) and Terry v. Ohio, 392 U.S. 1 (1968) expressly held State police forces accountable for violating constitutional guarantees. Similarly, the Court expressly reversed the Executive in its famous Steel Seizure decision. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In this era, the Supreme Court actually exercised its “independent judgment power” over the inherently more powerful Executive and its police force.

But this judicial insurrection did not survive long. Beginning in the 1970s, the Supreme Court began to resume its more complicit role with respect to Executive and police authority. In the ensuing years, the Court has largely eradicated the decisions that had breathed life into its “independent judgment power.” In case after case, it sided with the police in its efforts to make investigating and prosecuting crime easier. In case after case, it permitted greater search powers and surveillance. While it did not expressly overrule the critical constitutional rules it announced in cases such as Miranda, Mapp, Duncan or Gideon v. Wainwright, 372 U.S. 335 (1963), it introduced a whole range of qualifications, restrictions and explanations that largely eviscerated their significance. Furthermore, the Court has never declared any capital punishment method (another core Executive power) applied by the States or the federal government to be “cruel and unusual” under the Eighth Amendment. Never. In this light, the Court has largely confirmed Foucault’s observation that the police and Executive may freely “impose [their] prerogatives upon it.” Discipline & Punish, p. 215. In sum, the Supreme Court is a model of institutional weakness. It does not seriously challenge the real power in government. In fact, it devotes much of its intellectual energy to doctrines such as “standing,” “justiciability,” “mootness” and “ripeness,” which are specifically designed to sidestep answering constitutional questions altogether.

Should we be surprised that the Court so easily yields to Executive and police pressure? Probably not. In large measure, Foucault is correct about natural judicial weakness. When Hamilton envisioned a bold new federal Judiciary, he was speaking in theoretical abstraction. He could not have foreseen that his theory would not have worked in practice. After all, the Judiciary has nothing but “judgment;” it does not have the “sword” to compel allegiance with its rulings. Rather, the Executive holds the sword, and the Executive—through its police apparatus—holds the real power in our society. Even in those cases in which the Supreme Court has defiantly resisted the Executive, the Executive has simply chosen to ignore the Court. President Jackson, for example, famously ignored a Supreme Court ruling (Worcester v. Georgia, 31 U.S. 515 (1832)) that favored the Cherokee Indians by evicting them from their tribal lands in the 1830s. How? Because he controlled the army and the Court did not. At most, the Court can rebuke the President with rhetoric. But rhetoric does not stop armed men from doing what they wish.

There are larger social issues at work behind judicial weakness. After all, the Executive—through its police force—has an interest in maintaining dominant social values. Surveillance and police power are designed to maintain the “disciplinary” society necessary to maximize industrial production. And productivity is the overreaching goal. In some sense, the Court must know this. Its members come from a social class that has in interest in maintaining dominant social values. That is why it does not tread too heavily on practices that are designed to further our industrial society’s quest for stable, uninterrupted productivity. After all, blessing the people with too many “rights” would put an undue burden on enforcement. Without easy enforcement through pervasive discipline, the social order—with its intrinsic inequalities—would be much more difficult to sustain. Perhaps that best explains why the Executive always beats the Court: This Nation will never permit anyone to rock the boat too much.