comes the asserted power of the current President
and his new Sicherheitsdienst to inspect, search,
spindle, mutilate, etc., everything and everyone found
within the generous bounds of their authority? Leave
aside the claim of these people that US law prevails,
or ought to prevail, everywhere in the galaxy, and
just focus on the "internal" claim to do
all these things within the allotted boundaries of
the United States. Okay, where does the power come
it is inherent in some vast array of powers referred
to as "the executive power"? Partisans of
Congress would deny this. Does it come from Congress,
then? That answer just shoves the question back a
step: Where would Congress get such a power?
perhaps the 18th-century grocery list gives
this power to Congress or the President – that could
be sorted out later, if such a power really exists.
Perhaps such a power is part of "the war power,"
whatever that might be. Perhaps the powers for which
we are searching can simply be deduced from theories
of Mr. Lincoln's critics, Benjamin Robbins Curtis,
treated some of these issues in 1862. Curtis complained
that Lincoln sought "to extend martial law over
the whole territory of the United States; a power,
for the exercise of which by the President, there
is no warrant whatsoever in the Constitution; a power
which no free people could confer upon an executive
officer, and remain a free people. For it would make
him the absolute master of their lives, their liberties,
and their property, with power to delegate his mastership
to his satraps as he might select, or as might be
imposed on his credulity, or his fears.(1)
Curtis concedes that Congress could, in
time of war, authorize many of the things about
which he complains, in which case, one would think,
Congress and its satraps would become "the absolute
master of the [people's] lives," liberties, and
property. It is hard to see why this would be superior
to having Lincoln do such things, unless there is
a great advantage in having a few hundred masters
rather than one. There may be a difference, but it
does not seem to go to the heart of things.
is not the place to treat in detail interesting questions
such as whether or not there is any good reason to
believe in "the war power" – at all; whether
or not there is any convincing reason to deduce them
from the Constitution or from theories of sovereignty;
and, whether or not in the last case, there is any
good reason for believing in some kind of boundless,
indefinable sovereignty inhering in, or exercised
by, the government. All these claims are remarkably
unsatisfactory, but I leave them to one side, for
now. Let us pretend that good arguments exist, or
that people will acquiesce in bad ones, and have look
at how the powers under consideration can, as a practical
matter, be deployed.
AS A STATE 'COMMAND POST'
Economy, and State, the late Murray Rothbard
introduced the very useful concept of "command
posts," that is, key points of leverage that
states control in order to dominate natural society.
Among these are the money supply, roads, communications,
and education.(2) Keeping track of
more and more things, persons, and actions – in a
word, surveillance – is another important aspect of
state power, another command post, so to speak.
general spying and snooping (I'm sorry, "surveillance,")
we may turn to the sociologist Anthony Giddens, who
has written that "[t]he expansion of surveillance
in the modern political order, in combination with
the policing of 'deviance,' radically transforms the
relation between state authority and the governed
population, compared with traditional states. Administrative
power now increasingly enters into the minutiae of
daily life and the most intimate of personal actions
a social democrat, Giddens necessarily approves of
surveillance undertaken in aid of social welfare programs.
As he notes, "[s]urveillance is the necessary
condition of the administrative power of states, whatever
ends this power be turned to."(3)
if some of the ends of keeping track of everything
and everyone are worthy, or at least benign, in Giddens's
view, he concedes that, "surveillance (in its
various forms and aspects) must be regarded as an
independent source of power, maximized in the modern
state…." Giddens was undertaking his self-emancipation
from Marxism, when he wrote the book from which I
am quoting, and this last comment shows how far he
had come. No longer were "capitalism" or
"the bourgeoisie" lurking behind the state,
making it do bad things, that otherwise would not
as such, were now seen to have power, to desire more
power, and knowingly to accumulate more power. In
other words, Giddens had stumbled upon the irrelevance
of much of the Marxist theory of the state.(4)
As he writes: "Whether we like it or not, tendencies
toward totalitarian power are as distinctive a feature
of our epoch as is industrialized war."(5)
NOT TOO SHOCKED AROUND HERE
of us who took autonomous state power seriously are
not surprised at recent developments. Even the mildest
and most conciliatory quasi-libertarian knows that
police agencies have never liked the Bill of Rights.
It is not surprising that we are now seeing yet another
well-orchestrated campaign either to abolish those
rights or to explain them away with frivolous rationalizations.
that has been going around lately is so old, it has
mould on it: "The Bill of Rights is not a suicide
pact." Well, no indeed, it's a Bill of Rights.
If the rights are not enforceable, or only exist in
"peace time," then the "rights"
are not really rights, and the Bill of Rights
is a standing joke. I think this is the real view
of those who speak of suicide pacts.
their view, however, living under the US government,
as presently framed, is already a suicide pact.
After all, on the received liberal-centrist-conservative
(both meso- and neo-conservative) theory, the power
of government becomes infinite in wartime. Happily,
we get back all of our liberties, such as they are
on this theory, the very second the "emergency"
this theory to the bright light of day, we find that:
1. It is easy to erode and smudge the difference between
war and peace. After all, what was the Cold War? 2.
Governments have great leeway for finding potential
wars in which to be involved. 3. Now we add the axiom
that, governments like to wield power and wish like
to increase their power. Thus, the conventional theory
comes to this:
institution that has an incentive to find wars
and the capacity to find wars is likely to
go around finding wars and expanding its powers. If
the "war" could be permanent, the bottomless
powers would go on forever and the so-called "rights"
would never need to be "returned."
the "war" on terror, the war on sin, the
war on gravity, the war on insensitivity – the possibilities
Oberkommando of the Sicherheitsbüro
has just announced their need for even more power.
Of course they need more power! And they will need
more tomorrow, next week, next year, and so on. They
will probably get it.
pretended interpreters of a defunct Constitution ask
us to believe that, the very people who can best increase
their own power through war, and who are free to conjure
up wars, will refrain from so doing – out of
what, a deep concern about the moral hazard?
this moment, Terry Gilliam's film Brazil
is more and more a useful tool of social analysis
and prediction. Between showings of that film, perhaps
we can take some time to consider whether or not the
whole received theory of our Constitution (as summarized
above) is hopelessly flawed and ought to be detained
for questioning. Send the theory, and maybe the Constitution,
too, to Guantanamo.
not using the Constitution much ourselves, these days,
and Fidel might learn something from it, should he
drop by to complain that the US is filling up one
end of the island he rules with certified dangerous
Benjamin Robbins Curtis, Executive
Power (Boston: Little, Brown & Co., 1862
[reprint: Crown Rights Books, Dahlonega, Georgia,
n.d.]), p. 30.
Murray N. Rothbard, Man, Economy,
and State, II (Auburn, AL: Ludwig von Mises Institute,
1993), pp. 826-827.
Anthony Giddens, The
Nation-State and Violence (Cambridge, UK:
Polity Press, 1985), pp. 309.
See Joseph R. Stromberg, "Toward
an Autopsy of the Marxist Theory of the State,"
Telos, 119 (Spring 2001), pp. 115-138.
Giddens, p. 310. This would seem
to be quite true, even if conventional 1950s and '60s
theories of "totalitarianism" amounted perhaps
to a Cold War liberal maneuver rather, than serious