When Madison Fails

Michiko Kakutani reviews Richard Posner’s new book. I’ve already discussed some of the problems have with his arguments as he’s sketched them out in interviews, and I’ll probably read and review it for a talk I’m giving next year on the Constitution and executive power, but a couple quick points based on material quoted by Kakutani directly. First:

[t]he importance of demonstrating resolve at the outset of a grim struggle explains and to a degree justifies the excesses of repression that so often accompany our entry into war, including the war against Al Qaeda.

The worthlessness of “demonstrating resolve” as a justification for military action is Rob’s department. But I will add that the use of the concept demonstrates once again that Posner’s claims to be engaging in hard-headed cost-benefit analysis while other constitutional scholars fiddle with moral philosophy are often a sham. When vague concepts bear the weight of so much question-begging and unsupported assertion, he’s just doing normative theory without the courage of its convictions. But even worse is when his arguments rest on empirical assumptions that are plainly wrong:

Judge Posner also insists that there is little reason for the judicial branch of government to act as a check on presidential overreaching when national security measures are agreed upon by Congress and the White House, because the legislative and executive branches “are rivalrous even when nominally controlled by the same political party.” The Republican Congress, he asserts in the face of overwhelming evidence to the contrary, “has not been a rubber stamp for the national security initiatives of the Bush administration.”

The idea of branches maximizing, or at least vigorously protecting, their power is an attractive one which is sometimes accurate. But, of course–as Posner seems to concede elsewhere–separation-of-powers systems often create strong incentives to delegate and defer power rather than fighting to maintain it. And, worse, foreign policy is the most obvious manifestation of legislative deference to the executive. Congress has steadily allowed more and more power to accumulate in the executive, and periods of “rivalrous” backlash in recent decades have been brief and ineffectual. As Kakutani says, to posit a virgorous Congressional check in the current context is nearly farcical. Given these types of claims, it’s hard to find Posner’s analysis very trustworthy.