Monday, December 9, 2019

The General and the Attorney General--On 3QD

by Michael Liss

How do you feel about an Imperial Presidency?  
Attorney General William Barr has been on a bit of a bender recently. He’s suggested that communities that are critical of law enforcement will lose police protection, disagreed with the Inspector General’s report about the FBI and the Russia investigation, and warmed the hearts of the faithful at Notre Dame in decrying a “war on religion.”

While Mr. Barr rarely fails to make news, his most consequential opinions came in a speech he gave to the Federalist Society on November 15, 2019, in which he went on, at some length, as to why he supports the broadest possible interpretation of Presidential powers. 

If you have read reports about Mr. Barr’s remarks, you probably already know they have been criticized for their ferocious partisanship. There is unquestionably a considerable amount of energy devoted to critiquing those who get in President Trump’s way (Congress, the federal courts, Progressives, and private citizens who exercise their right of free speech). But Mr. Barr is not only a man of intensity, he is also one of words (over 6000 here), and, when moved to talk about substance, he has a lot to say. You can find the text on the Department of Justice website.

It’s pointless to argue with Barr about his personal political views, regardless of the tone in which they are delivered. And it’s shouting into gale-force winds to note that his zeal for an uber-powerful Presidency seems to wax and wane depending on the party identification of the person occupying the Oval Office. What is interesting, and important, is reviewing the customized version of history that leads him to take his present view of both Presidential power and the nature of the relationships among the three branches of government. 

His first dive into the past is a fascinating one: 

The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak. This is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty.

I went to grammar school, and I think this is a very clever argument, albeit completely misleading. He’s conflated two separate thoughts—a debatable one that the colonists were not rejecting a strong executive, with an unsupported one that “patriots well understood that their prime antagonist was an overweening Parliament.” And he’s forgotten that Parliament was not some malevolent jellyfish made up of a thousand stinging MPs and Lords. They, too, had Executive leadership—a Cabinet and a Prime Minister (Lord North, during most of the Revolutionary War whom, ironically, 19th Century historians judged too subservient to the King).

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