Constitutional Ignorance

People sometimes wonder at my self-description as “pragmatic”; some think this means having no principles and having no regard for long-term consequences. This is not the case. As far as I can tell, if one includes moral interests within the scope of “practical consequences” (i.e., it’s among the things we care about) and one accepts that sabotaging one’s long-term interests can never be the “practical” thing to do, then I find it hard to imagine how anyone could not be a pragmatist.

Ironically, liberals often recommend misguided short-term measures for moral reasons without regard for institutional, structural, long-term consequences. Case in point: a federal judge has issued an injunction against the military’s “don’t ask, don’t tell” policy. The Justice Department is appealing the ruling because it can. Liberals opposed to “don’t ask, don’t tell” are appalled that the Obama administration is not doing the right thing and declining to appeal. Here are the questions not being asked:

(1) Is it, as a rule, a good idea for a lawyer who has taken on the task of representing a client to give in to outside pressure so that her client loses, because others who are not in the lawsuit or prosecution are made happier? Suppose that in the famous “hot coffee” case (popularly misunderstood as without merit) the lawyer who represented the woman with third-degree burns from McDonald’s overly hot coffee decided to not appeal a district court ruling against the client, because lots of people outside the courtroom thought the case was BS? Suppose that a lawyer defending someone accused of murder decided not to appeal a conviction, merely because he felt pressured by a lynch mob mentality against his client? Failure to grasp why these scenarios are analogous to refusing to appeal the injunction shows a complete failure to grasp the difference between mob rule and rule of law. Rule of law, however, has much to recommend it. Really.

(2) What caused DADT? We did. The American people did, through our duly elected representatives. But now really stretch yourself and imagine a law that you like, a nice liberal law (let’s say, some environmental protection law). Imagine a Neanderthal judge, and a high-handed, authoritarian, reactionary right-wing President who hates environmental protection. This President, and her Justice Department, is tasked with prosecuting the polluters, but they really wish they didn’t have to do that, because they hate the law. The crazy judge rules in favor of the polluters and against the government, but the government is secretly relieved because it is sympathetic to the party it is prosecuting and hostile to the law it is enforcing. So when it loses, it declines to appeal. Environmentalists complain, but the tacit message from the administration is “we never liked this law in the first place, so we’re going to passively sabotage its enforcement.”

This is exactly what people (like the people on the New York Times editorial board) are suggesting. Now why shouldn’t a pragmatist be open to using any trick or ploy to get the “right” results? Because by failing to grasp that the tricky exercise of power in a good cause is grasping at a two-edged sword, one all but guarantees that when the roles are reversed, and the opposition, your opposition, is in power, they will have learned a trick or two from you about how to abuse power, and will abuse it themselves… at your expense. Taking care to avoid this sort of thing is highly pragmatic, if you care about your own political best interests over the long haul. It is even more so if you care about the nation, and the viability of its democracy.

I learned these things in law school. Where do non-lawyer citizens learn them? Do they learn them?


5 comments on “Constitutional Ignorance

  1. Pliny the Elder says:

    It is also instantiates the virtue of leadership by example. President Obama will appeal the ruling as part of his institutional responsibilities as head of the executive branch. In a year or two, when I expect the policy will be changed (preferably by the political branches), he will be able to look other officers of the executive branch, e.g., military officers, in the eye and tell them that they now have an institutional responsibility to successfully integrate gays and lesbians into the operational forces. We do not want executive offciers to play cute (even if legally permitted) games when U.S. policy is involved. If we are going to abandon DADT, that is perfectly acceptable, but it is also important that the abandonment be seen as a legitimate policy decision by the relevant decision-makers.

  2. skholiast says:

    Once the administration committed itself to defending DADT, once Obama decided (for whatever reason) that he could not just issue and executive order as Commander in Chief, the course was set. (The same pertains, mutatis mutandis, to the DOMA case). Changing their mind, deciding that an executive order could, after all, be issued, would have been tantamount to “voting for it, before I voted against it.” The problem remains, though, that the President campaigned on a promise to have done with DADT, and strikes many as having been less than aggressive in pursuing that aim. The argument that an executive order would have abolished the rule of law does not bear much weight with those who have felt themselves toyed with once more. The second-guessing (often ill-informed) commences: who is he trying to placate, to avoid offending? I like your illustration and I see the point, but I wish the administration had got off on the other foot. Frankly, I wish Clinton had done it right the first time. (I might be missing some of the Obama administration’s legal arguments, however).

  3. poseidonian says:

    The distinction I want to maintain here is the difference between lobbying Congress for repeal, and exercising the constitutional duty to enforce the laws, and the institutional responsibility of the government’s lawyers to pursue the cases put on their plate vigorously. For the record, I am opposed to DADT (though I am not persuaded that it is a matter of constitutional rights, or that regarding it as one is dispositive). The complaint about the political issue should be expressed as “why didn’t you expend political capital before the mid-terms getting this thing repealed?” Though I suspect that the answer to that is (1) health care first, (2) re-election second, (3) more controversial, politically costly issues thereafter.

    But fundamentally, this post is not about DADT. It’s not about “sides” (it’s rather militantly opposed to thinking in terms of sides). It’s about the fact that our political culture has not only become permeated with hysteria and the de-legitimizing of one’s political opposition, but with an “ends justify the means” mentality which violates not only my sense of political morality, but long-term political prudence (which are intimately connected in my mind).

    At the risk of antagonizing much of my readership with my militant moderation, I think the President has done rather well, all considered. At a time when the country has been plunged into some pretty severe problems, some of them the result bad decisions by prior political actors not associated with this administration, I think it’s pretty close to miraculous that Iraq is winding down, the recession is winding down, and some stuff has actually gotten accomplished that needed doing, legislatively.

    And if we take the long view, the fact that we have seen the constitutionalization of bans on certain forms of anti-gay discrimination, are on the brink of the constitutionalization of same-sex marriage, and will likely see the death of both DOMA and DADT in the foreseeable future is cause for amazement and gratitude. I agree with Pliny that the courts are not the ideal mechanism for a discussion about DADT; I tend to think that the courts are probably the right forum for the other two though.

    Politics needs people for whom fast is never fast enough. God bless them. It also needs people standing athwart history shouting “stop!” And it needs honest brokers and sensible centrists to mediate between and to muddle through. I have always known which kind our president is, and have been somewhat puzzled by those who saw him differently. So while I in no way want to silence the “fast” folks, my own best role I think is to be the guy who calls attention to other dimensions, larger and longer term, easily missed in the heat of the moment and when things are seen through the lens of partisanship.

  4. skholiast says:

    Your post is valuable precisely for this attention to the broader questions– questions not of what changes need to happen, but how? To the impatient (and I don’t use the word disparagingly), the “how” question will easily seem maddeningly meta-. Moreover, if one is focused on only one sort of question, then one easily reads attention to both questions as a mixed message. It takes slowing down and thinking carefully to parse these and not just react.

    You write:our political culture has not only become permeated with hysteria and the de-legitimizing of one’s political opposition, but with an “ends justify the means” mentality which violates not only my sense of political morality, but long-term political prudence (which are intimately connected in my mind).

    This very issue arose in some discussion on my blog recently. Thanks for articulating this so clearly. YES; the more one polarizes the debate, the greater the license for radical, what-you-can-get-away-with tactics. I sometimes meet a kind of shrugging, so-what, aren’t-we-among-friends incomprehension when I object to the demonizing of rank-&-file republicans (or tea-partiers) by my democratic acquaintances. What I take you to be saying is that there’s a link between the end justifying the means, and the stark polarization of political life. After all, there is a ref in a boxing ring or a fencing match, but in a scratch-your-eyes-out brawl to the death, there are no rules of engagement.

  5. poseidonian says:

    Yes, that’s my thought.

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