What We Talk About When We Talk About Law

Gore’s fiery speech on Monday in which he said that Bush has repeatedly broken the law produced this response by the National Review Online. Byron York points out that along with accusing Bush of undermining the Constitution, Gore also said that, “The threat of additional terror strikes is all too real and their concerted efforts to acquire weapons of mass destruction does create a real imperative to exercise the powers of the executive branch with swiftness and agility.”

In a sense, York’s response raises the inadequacies of the current Democratic constitutional offensive, in which party advocates are up in arms about the imperial president. Whether or not they choose to admit it, Gore and others are not making a legal point at all, but quietly suggesting that maybe America isn’t under dire threat and that survival shouldn’t drive politics. Yet, they are ultimately too afraid to make this larger political argument, since it goes against the apparent consensus that we face permanent emergency. Noah Feldman, who a week ago published a long, scholarly piece in the New York Times on the rise of executive prerogative and its dangers, ended in disappointing fashion with these words, “The basic fact of presidential power is now irreversible. No one denies that a strong executive is needed to respond to the threat of terrorism.”

Today, law has become a useful sleight of hand to question the political judgments of the Administration (e.g. perhaps the threat of terrorism doesn’t justify warrantless wiretapping), without being held publicly accountable for those views. But, this attempt to pursue political objectives through the law is deeply flawed. It blinds us to the basic nature of crises. Devising the right legal rules will never solve the abuses inherent in emergencies, because by definition these are times when extraordinary action is required. Telling Bush he’s breaking the law is question begging, since the whole point of emergency is that the ordinary laws cannot apply. If anything, once people accept crisis conditions, the fiction of elaborate legal rules tends to distort legality itself rather than to limit power. This is because it creates a mask of constitutional appropriateness that can constantly be manipulated to fit political ends.

Talking about law when we really mean politics but are too scared to say so has a second equally corrosive effect. It refuses to confront the actual political claims made by the Administration and its supporters. Despite all the helpful history, in one sentence, by assuming the overwhelming threat of terrorism and the irreversibility of presidential power, Feldman concedes the larger debate to the Administration. His legal criticisms, as well as Gore's, accept political defeat as their starting point. As a result, both perpetuate an environment in which all we can do by way of opposition is fumble at the constitutional margins. You can’t solve a political problem by resorting to law, and it’s time for critics to bite the bullet and say what they mean.