Wednesday, February 07, 2007
Two senses of "constitutional"
On a related note, "constitutional" can be used in two different ways, which may get a bit confused in discussions like the previous one. On the one hand, it can mean simply "permitted by the set of norms that govern what is and what is not legitimate political action," whatever those may be; on the other, it can refer to a polity where the rule of law holds not merely with respect to individual exercises of authority, but even over questions of what is properly a matter of state action at all. There is nothing paradoxical, then, is saying *both* that X policy is constitutional (in the first sense), and yet demonstrates our polity to be a less constitutional one (in the second sense) than some other polity Y. And indeed, I think it fair to say that states with large, power-projecting militaries, habits of using them, and the concomitant attitude towards executive discretion, are in fact *less constitutional* than those without them, no matter how strictly the former type adheres to their particular governmental charters. This is a bit like Walter Murphy's distinction between "constitutionism" and "constitutionalism", though I'm not sure I quite like his way of drawing the lines.
When they came for the rule of law, I said nothing; I was, of course, no statute
Will Baude at Crescat Sententia objects to those who see the administration's "war on terror" policy as a threat to the rule of law, saying "the fact that powerful agents of the government justify themselves with constitutional arguments whose correctness can be debated is not an 'attack on the system' of law and lawyering, but rather a recognition of its true power." This seems mistaken to me, but mistaken in a way that's worth dissecting.
The argument seems to be that so long as political actors feel the need to justify their actions with legal and constitutional arguments, and so long as these arguments meet some very minimal threshold of plausibility (more or less: "some tenured professors at top schools have endorsed them"), their behavior isn't a threat to the rule of law--even if the arguments are rejected by most legal/constitutional experts, even if they refuse to adjust their behavior in response to legal/constitutional critiques, and even if this behavior is with the aim of greatly expanding executive discretion. This is so because the very act of *offering* these arguments serves to bolster the idea of legal and constitutional constraint; by contrast, imagine if the administration didn't even pretend what they were doing was legal or constitutional.
The obvious point, first, is that just because things could be worse doesn't mean they're not bad. But the more important point is that bad faith arguments for executive discretion, or weak arguments maintained in the face of overwhelming criticism, can sometimes be just as dangerous to rule of law values as explicit illegality. This is so for two reasons: first, there is an *inherent* threat to the rule of law from executive discretion; second, the rule of law requires that there be clear, known legal norms, *and* that those norms effectively constrain the powerful.
1. Executive discretion has always been difficult to square with the rule of law, because the entire point of allowing such discretion is the belief that, in some areas, it is more important to have the swiftness, secrecy, and particularism that only discretion affords than it is to act only in accordance with clear and promulgated rules. Obviously, then, a society committed to the rule of law cannot be one of untrammeled executive discretion; equally obviously, no modern nation-state can be so devoted to the rule of law so as to eliminate discretion completely (even A.V. Dicey acknowledged the propriety of, e.g., Acts of Indemnity in such cases).
When an administration claims that the scope of its discretion authority is as sweeping as this one has done, therefore, it is asserting that rule of law values are less important than other desiderata; it is claiming, in short, that we have too much Rule of Law. Perhaps the administration's claims are a plausible reading of our Constitution, though I doubt it; regardless, they are a change, and a retreat from the ideal of law-governed state action.
2. In the world of pure abstractions, there is no paradox in the idea of a dictatorship instantiating the rule of law: hypothetical Rex (or perhaps Hercules) would be such a paragon of enlightened virtue that he would clearly see how his general, promulgated norms applied to each situation and voluntarily act in accordance with them.
In our world, this is patently absurd.
It is a sad lesson of history that the powerful obey the law because they are compelled to, not because of their virtue (see Stephen Holmes' "Lineages of the Rule of Law," and this volume generally). The point of having independent review of state action is not that unreviewable conformity to the rules is impossible, but that it is not incentive-compatible. Ex post review is one of the ways we attempt to balance swift and particularist action with rule-of-law values; we allow for discretion within certain boundaries, or guided by certain standards, and insist on evidence that this was adhered to. When an administration attempts to limit review of its actions, just as when it tries to expand the scope of that discretion, it is claiming that we have too much constraint by law.
A more subtle point concerns the relationship of bad-faith or weak argument to the legal system. Baude is quite right that we would have much more to worry about if the administration simply announced that henceforth it wouldn't bother to consider the constitutionality of its actions; on the other hand, the outcry, impeachment, and disgrace that would follow would send a nice signal pour encourager les autres. I don't mean to endorse any general "the worse, the better" view of politics; my point is simply that the example is a bit of a red herring, because such blatant disregard for legality remains something that our political system can effectively deter.
Within the realm of what one can get away with, though, bad-faith/weak arguments have a particularly pernicious character. This is not simply because they diminish our confidence that the administration will in fact be bound by rules in the inevitable cases when independent review is impossible. They also introduce unnecessary uncertainty about the identity, and even metaphysical skepticism about the existence, of the legal and constitutional rules in question. This is because of the nature of public, political rules (here I get controversial); they are picked out by an idealized "cottoning-onto" reaction to examples of their use (apologies to Philip Pettit for the appropriation). As paradigmatic exemplars of this sort, the official policies of presidents inevitably shape the future development of the constitution and the laws.
What this means is that the idiosyncratic constitutional theories of presidents will *inevitably* introduce extra "constitutional dissonance" into the system, enlarging the set of "plausible" arguments. The wider this set of arguments, the harder it is to actually enforce constitutional and legal rules against those who would flout them, whether through political or judicial checks. This is not always a bad thing, on net: it may sometimes be the case that the current Constitution is a wicked one, and needs to be pushed in a more just direction, short-term indeterminacy be damned. No doubt this is the administration's view, at least among those in it who actually care about the Constitution. But even so, the cost to the rule of law is real, and must be acknowledged.
The argument seems to be that so long as political actors feel the need to justify their actions with legal and constitutional arguments, and so long as these arguments meet some very minimal threshold of plausibility (more or less: "some tenured professors at top schools have endorsed them"), their behavior isn't a threat to the rule of law--even if the arguments are rejected by most legal/constitutional experts, even if they refuse to adjust their behavior in response to legal/constitutional critiques, and even if this behavior is with the aim of greatly expanding executive discretion. This is so because the very act of *offering* these arguments serves to bolster the idea of legal and constitutional constraint; by contrast, imagine if the administration didn't even pretend what they were doing was legal or constitutional.
The obvious point, first, is that just because things could be worse doesn't mean they're not bad. But the more important point is that bad faith arguments for executive discretion, or weak arguments maintained in the face of overwhelming criticism, can sometimes be just as dangerous to rule of law values as explicit illegality. This is so for two reasons: first, there is an *inherent* threat to the rule of law from executive discretion; second, the rule of law requires that there be clear, known legal norms, *and* that those norms effectively constrain the powerful.
1. Executive discretion has always been difficult to square with the rule of law, because the entire point of allowing such discretion is the belief that, in some areas, it is more important to have the swiftness, secrecy, and particularism that only discretion affords than it is to act only in accordance with clear and promulgated rules. Obviously, then, a society committed to the rule of law cannot be one of untrammeled executive discretion; equally obviously, no modern nation-state can be so devoted to the rule of law so as to eliminate discretion completely (even A.V. Dicey acknowledged the propriety of, e.g., Acts of Indemnity in such cases).
When an administration claims that the scope of its discretion authority is as sweeping as this one has done, therefore, it is asserting that rule of law values are less important than other desiderata; it is claiming, in short, that we have too much Rule of Law. Perhaps the administration's claims are a plausible reading of our Constitution, though I doubt it; regardless, they are a change, and a retreat from the ideal of law-governed state action.
2. In the world of pure abstractions, there is no paradox in the idea of a dictatorship instantiating the rule of law: hypothetical Rex (or perhaps Hercules) would be such a paragon of enlightened virtue that he would clearly see how his general, promulgated norms applied to each situation and voluntarily act in accordance with them.
In our world, this is patently absurd.
It is a sad lesson of history that the powerful obey the law because they are compelled to, not because of their virtue (see Stephen Holmes' "Lineages of the Rule of Law," and this volume generally). The point of having independent review of state action is not that unreviewable conformity to the rules is impossible, but that it is not incentive-compatible. Ex post review is one of the ways we attempt to balance swift and particularist action with rule-of-law values; we allow for discretion within certain boundaries, or guided by certain standards, and insist on evidence that this was adhered to. When an administration attempts to limit review of its actions, just as when it tries to expand the scope of that discretion, it is claiming that we have too much constraint by law.
A more subtle point concerns the relationship of bad-faith or weak argument to the legal system. Baude is quite right that we would have much more to worry about if the administration simply announced that henceforth it wouldn't bother to consider the constitutionality of its actions; on the other hand, the outcry, impeachment, and disgrace that would follow would send a nice signal pour encourager les autres. I don't mean to endorse any general "the worse, the better" view of politics; my point is simply that the example is a bit of a red herring, because such blatant disregard for legality remains something that our political system can effectively deter.
Within the realm of what one can get away with, though, bad-faith/weak arguments have a particularly pernicious character. This is not simply because they diminish our confidence that the administration will in fact be bound by rules in the inevitable cases when independent review is impossible. They also introduce unnecessary uncertainty about the identity, and even metaphysical skepticism about the existence, of the legal and constitutional rules in question. This is because of the nature of public, political rules (here I get controversial); they are picked out by an idealized "cottoning-onto" reaction to examples of their use (apologies to Philip Pettit for the appropriation). As paradigmatic exemplars of this sort, the official policies of presidents inevitably shape the future development of the constitution and the laws.
What this means is that the idiosyncratic constitutional theories of presidents will *inevitably* introduce extra "constitutional dissonance" into the system, enlarging the set of "plausible" arguments. The wider this set of arguments, the harder it is to actually enforce constitutional and legal rules against those who would flout them, whether through political or judicial checks. This is not always a bad thing, on net: it may sometimes be the case that the current Constitution is a wicked one, and needs to be pushed in a more just direction, short-term indeterminacy be damned. No doubt this is the administration's view, at least among those in it who actually care about the Constitution. But even so, the cost to the rule of law is real, and must be acknowledged.
Thursday, February 01, 2007
Free culture vs. big-budget productions
Tim Lee has some fair-minded musings here and here on the dangers copyright infringement poses to large-budget video game development, prompted by the (apparently infringement-related) news that a well-reviewed hockey game franchise will not be continued. He wants to discuss what he calls "the policy question": whether it's bad if infringement puts increasing pressure on the big-budget video game business model. The comments are a mix, as usual, with Tom Lee thinking it might not be so bad to have smaller but cheaper games and Adam Thierer giving an emphatic "screw that!" to a future without production values fit for his HDTV 7.1 setup.
I think what's fascinating about this debate is how its very terms conceal what are arguably quite illiberal assumptions. We're used to thinking, perhaps wrongly, that it's right to evaluate economic policy through its effects on measurable outputs, etc., but it's important to realize that we're talking about cultural policy here, where such conclusions requires even stronger confidence in the propriety of imposing the planner's values on society. To be blunt: of course, ceteris paribus, it's a shame if a desired product is no longer available on the marketplace; every Madden is sacred and all that. But we can't say anything useful without knowing what else will happen, and once we do, we have to confront the fact that we're talking about whose liberty shall be sacrificed for whose LAN parties.
So let me propose an alternate, intentionally provocative reframing of the real question: the question is whether we should restrict, through civil and criminal penalties, the liberty of everyone to create, alter, exchange, and enjoy cultural materials to the best of his or her abilities and opportunities. And the reasons we are offered for the proposed restriction is that it will enable us as a society to finance the lavish, big-budget spectacles--whose budget is, of course, partially a result of such restrictive policies--that a certain segment of the population enjoys.
For myself, I have no idea what our cultural landscape would look like in a copyright-and-patent-free world. I suspect there would be large shifts--smaller budgets, more outsourcing, increased ties of cultural materials to continuous revenue streams (like MMOGs)--but, really, who can say? My point is that, absent, say, an Atlas Shrugged-like general cultural strike, this is the wrong question to ask. Obviously, some will want More and Bigger and Prettier games, especially if that's what the nation's game industry, itself shaped by prior mistakes in allocating rights, has encouraged consumers to want--but to take this as a social imperative is to mistake special interest pleading for the demands of justice. I want more and better erotic vampire fiction, but I don't think this warrants limits on human liberty. Should the videogame featureset treadmill slow down, will Thierer's complaints be more legitimate than mine, or than those of the old-time rock'n'roll aficionado who grumps that nobody makes 'em like they used to?
I think Will Kymlicka and others are right to think that human flourishing depends crucially upon one's ability to make sense of oneself through cultural artifacts, but it is a mistake to think this pushes towards any particular allocation of cultural resources. Are we really to say that the ideal society has so much poetry, so much literary fiction, so many sports video game franchises, and the like? The right response, here as elsewhere, is to preserve each person's liberty to weave the cultural strands around them into a tapestry that provides meaning, and for each of us to do what we can to enrich that cultural patrimony.
I think what's fascinating about this debate is how its very terms conceal what are arguably quite illiberal assumptions. We're used to thinking, perhaps wrongly, that it's right to evaluate economic policy through its effects on measurable outputs, etc., but it's important to realize that we're talking about cultural policy here, where such conclusions requires even stronger confidence in the propriety of imposing the planner's values on society. To be blunt: of course, ceteris paribus, it's a shame if a desired product is no longer available on the marketplace; every Madden is sacred and all that. But we can't say anything useful without knowing what else will happen, and once we do, we have to confront the fact that we're talking about whose liberty shall be sacrificed for whose LAN parties.
So let me propose an alternate, intentionally provocative reframing of the real question: the question is whether we should restrict, through civil and criminal penalties, the liberty of everyone to create, alter, exchange, and enjoy cultural materials to the best of his or her abilities and opportunities. And the reasons we are offered for the proposed restriction is that it will enable us as a society to finance the lavish, big-budget spectacles--whose budget is, of course, partially a result of such restrictive policies--that a certain segment of the population enjoys.
For myself, I have no idea what our cultural landscape would look like in a copyright-and-patent-free world. I suspect there would be large shifts--smaller budgets, more outsourcing, increased ties of cultural materials to continuous revenue streams (like MMOGs)--but, really, who can say? My point is that, absent, say, an Atlas Shrugged-like general cultural strike, this is the wrong question to ask. Obviously, some will want More and Bigger and Prettier games, especially if that's what the nation's game industry, itself shaped by prior mistakes in allocating rights, has encouraged consumers to want--but to take this as a social imperative is to mistake special interest pleading for the demands of justice. I want more and better erotic vampire fiction, but I don't think this warrants limits on human liberty. Should the videogame featureset treadmill slow down, will Thierer's complaints be more legitimate than mine, or than those of the old-time rock'n'roll aficionado who grumps that nobody makes 'em like they used to?
I think Will Kymlicka and others are right to think that human flourishing depends crucially upon one's ability to make sense of oneself through cultural artifacts, but it is a mistake to think this pushes towards any particular allocation of cultural resources. Are we really to say that the ideal society has so much poetry, so much literary fiction, so many sports video game franchises, and the like? The right response, here as elsewhere, is to preserve each person's liberty to weave the cultural strands around them into a tapestry that provides meaning, and for each of us to do what we can to enrich that cultural patrimony.
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