Later On

A blog written for those whose interests more or less match mine.

Practicalities vs. Principles

with 3 comments

Glenn Greenwald has a really exceptional column today—and before you read it, you definitely should read this post by Brad DeLong—and the comments are good, too. Read that, and then read Greenwald. Let me quote just a bit from the Greenwald column:

… By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions.  But not all political questions were to be subject to that process.  Some were intended to be immunized from those influences.  Those were called "principles," or "rights," or "guarantees" — and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what Massing calls "the practical considerations policymakers must contend with."

We don’t have to guess what those principles are.  The Founders created documents — principally the Constitution — which had as their purpose enumerating the principles that were to be immunized from such "practical considerations."  All one has to do in order to understand their supreme status is to understand the core principle of Constitutional guarantees:  no acts of Government can conflict with these principles or violate them for any reason. And all one has to do to appreciate their absolute, unyielding essence is to read how they’re written:  The President "shall take Care that the Laws be faithfully executed."  "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." "Congress shall make no law . . . abridging the freedom of speech."  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause."  "No person shall be . . . deprived of life, liberty, or property, without due process of law."  Even policies which enjoy majoritarian support and ample "practical" justification will be invalid — nullified — if they violate those guarantees.

Consider how Thomas Paine described the rule of law and the presidential obligation to obey the law and be subject to it.  Does this sound like it was supposed to be waived whenever "the practical considerations policymakers must contend with" made it convenient to do so? …

Do read it—and the Brad DeLong bit as well.

Written by LeisureGuy

30 July 2009 at 11:32 am

3 Responses

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  1. This was one of GG’s most self-serving and biased essays. He sets up a straw man by focusing on two words from Massing’s well reasoned critique and ignores in his argument the several thousand decisions that have been issued over the last 200 hundred years trying to clarify and define the absolute principles contained in the Constitution and the Bill of Rights.

    constant reader

    30 July 2009 at 9:12 pm

  2. Interesting. Brad DeLong fell for it, too. And, I admit, so did I. It does seem odd, though, that the DoJ is gearing up to go for low-level CIA employees for breaking the law, but Cheney, Yoo, Addington, et al. are allowed to get away without even a serious investigation. Much like Abu Ghraib, I guess. I do find that disturbing.


    31 July 2009 at 8:14 am

  3. So do I. But I think GG may have been a little severe here also. As I recall, the article he was responding to indicated that Holder planned to go after those who exceeded the guidance provided but not those who stayed within the guidance. It said nothing about those who provided the guidance nor those who caused the guidance to be given. Clearly the latter two groups should not be exempt from prosecution but I’m somewhat conflicted about prosecuting those who followed what they thought/believed was legitimate guidance. I said as much, in somewhat different words to GG but he of course did not respond. Many argue that after Nuremberg one can and should be prosecuted for following an order that is clearly illegal. I agree. But in these circumstances it is not clear to me that one would necessarily know the guidance provided was clearly illegal even though we now know that it was. At a minimum, the situation was fairly complex. I felt GG’s analysis was disingenuous and incomplete in this post as well.

    constant reader

    31 July 2009 at 1:26 pm

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