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Reinterpreting the Separation of Powers
December 10, 2018 David J. Siemers

With dysfunction the current watchword in American politics, the public is naturally looking for solutions. The checks and balances offered by three coequal branches of government are the remedy most frequently advanced for this task. But we should exercise caution in endorsing this idea as a cure for our political ills.

Exile, Statelessness, and Migration
December 3, 2018 The Political Theory Review

A Political Theory Review interview with Seyla Benhabib about her recent book Exile, Statelessness, and Migration

Hobbes’ Kingdom of Light
November 26, 2018 The Political Theory Review

A Political Theory Review interview with Devin Stauffer about his new book, Hobbes’ Kingdom of Light

Gerald Ford and the Persistence of Constitutional Power
November 5, 2018 Jordan T. Cash

It is common for scholars to distinguish between a ‘traditional presidency’ that existed in the 18th and 19th Centuries and a ‘modern presidency’ that emerged in the mid-20th Century. Proponents of this distinction see the presidency created by the Constitution as fundamentally weak. The modern presidency, by contrast, is portrayed as stronger and able to ...

Forged By Crisis
October 29, 2018 Jay Sexton

A Nation Forged by Crisis (2018, Basic Books) tells the history of the United States through the greatest periods of crisis in each century of its existence. It opens with the 18th Century Revolution and covers the Civil War, Great Depression, World War II, and the Cold War. These periods of crisis forever altered the ...

Where Do Our Rights Come From? An Evaluation of American Patent Law
October 22, 2018 Adam MacLeod

In Oil States Energy Services LLC v. Greene’s Energy Group LLC, the U.S. Supreme Court ruled that patent owners do not have a right to a trial in a court of law. The issue at hand in the case was whether Congress could vest in the United States Patent and Trademark Office power to adjudicate ...

Morality and Presidential Campaigns
October 15, 2018 Mark R. Cheathem

During and after the 2016 presidential campaign, many commentators wondered how U.S. politics had devolved into the political circus witnessed that election season. Especially puzzling was the support that evangelical Christians, adherents to a faith that emphasizes morality in all facets of life, gave to the Republican candidate—the twice-divorced, coarse-talking, oft-bankrupt Donald Trump.

Life Behind the CV: A Case Study of an Unusual Legal Scholar
September 30, 2018 Andrew Porwancher

Academics forgo the term “resume” in favor of “curriculum vitae.” The CV refers to a list of degrees and accomplishments. But considering the Latin translation–“the course of life”–is the term too grand? The story of John Henry Wigmore suggests that “cirriculum vitae” is not an overly grand term. Wigmore’s CV depicts a unique life path–as ...

Black Politics in Lowcountry Georgia after the Civil War
September 24, 2018 Karen Cook Bell

Throughout Lowcountry Georgia, African Americans marshaled against native southern power and federal policies that did not serve their interests. Through organizations such as the Union League and the Farmer’s Alliance, African Americans developed an understanding of their political and social identity. The pursuit of self-governance, kinship, labor, and networks of communication transformed the political and ...

Dante’s Philosophical Life: Author Interview with Paul Stern
July 9, 2018 Starting Points

A Political Theory Review interview with Paul Stern about his new book, Dante’s Philosophical Life: Politics and Human Wisdom in Purgatorio

Chase Sievers

This essay offers a brief account and (partial) critique of the Central Intelligence Agency’s enhanced interrogation program which was utilized during the wars in Iraq and Afghanistan.

 

The current president of the United States, Donald Trump, vocally supported the use of torture on terrorist suspects during the 2016 presidential election when he stated, “I will bring back waterboarding, and I will bring back a hell of a lot worse than waterboarding” (Myre 2018). And in 2018, President Trump nominated Gina Haspel to be the director of the Central Intelligence Agency. Haspel is an individual who was previously in charge of operating a CIA “black site” where the enhanced interrogation program was used on terrorist suspects. Although it is undisputed that the United States of America was severely violated by the terrorist attacks on September 11th, many of the controversial “enhanced” interrogation methods that the government has used on terrorists since that time fulfill the criteria necessary to be deemed torture; these techniques should not be utilized for any purposes as there are other interrogation options available that are far more productive and humane.

Regarding interrogation, there is a science and an art to successfully drawing information from suspects and prisoners without the use of any physical force. The body language of people who are trying to hide information often inadvertently changes; sometimes, their eyes blink at irregular intervals, there is a shiftiness in their movements, or minuscule nervous ticks such as foot-tapping and nail-biting are present. A proficient interrogator may pick up on these subconscious movements. He may also be so skilled in the art of questioning that he can phrase interrogatives in such a way that suspects will reveal vast amounts of information by their use of verb tense and word choice. Veteran interrogators do not frequently fail to learn something from suspects, even when not using physical force. Heather MacDonald writes on the subject, “Pentagon doctrine, honed over decades of cold-war planning, held that 95 percent of prisoners would break upon straightforward questioning.”(MacDonald 2006, 84). Thus, simply asking suspects and prisoners questions in a skillful manner is often sufficient by itself as a technique for information gathering—so thought the government and virtually everyone else. However, the “terrorist” proved to be a much more challenging form of interrogee than any enemy before it. Al Qaeda fighters captured in Iraq or Afghanistan were not giving up information. They were not cooperating. Instead, they were silent, unmoving, and often knew that the interrogators’ hands were tied (MacDonald 2006, 85). In a war where acquiring information was urgently necessary, the enemy of the United States was far from ideal.

As a result, the United States government resorted to rather unconventional and intense practices to get the silent enemy talking. It should be noted that the government cannot be blamed for prioritizing urgency as some detainees undoubtedly knew where Improvised Explosive Devices (IEDs) awaited American convoys and knew where their dangerous radical-Islamic friends were hiding. However, exigency alone does not necessarily justify the following tactics green-lighted for use on detainees at various American facilities and beyond: waterboarding, rectal feeding and rehydration, sexual humiliation, beatings, intensive fear-up procedures, and extraordinary rendition.

The aforementioned methods are clearly prohibited according to the Eighth Amendment, the Geneva Conventions, and the Convention Against Torture from use on suspected and convicted criminals within U.S. borders and on enemy-state actors who qualify for prisoner-of-war status; this is not without reason as these tactics do, at prima facie, meet the criteria to be deemed torturous and unlawful against protected persons. The Eighth Amendment of the United States Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment was written and historically considered with a two-fold purpose: to prevent numerous and arbitrary financial punishments and barbaric and indecent physical punishments from being inflicted on individuals within U.S. territory. The Third Geneva Convention relates to the treatment of prisoners of war. In Article 4, it explicates “prisoner of war” as anyone captured by the enemy who is an official member of an armed force participating in the conflict; anyone who is a member of a militia or volunteer corps that is included in armed forces; anyone belonging to a militia, volunteer corps, or resistance movement functioning outside of their own territory; anyone who accompanies the armed forces without being an official member thereof; and any locals who spontaneously take up arms to resist invading forces. Regarding these individuals’ protections, Article 14, Respect for the Person of Prisoners, states that “[p]risoners of war are entitled in all circumstances to respect for their persons and their honour.” In a commentary on Article 14, the International Committee of the Red Cross explains respect for the physical person of the prisoner as the prohibition of killing, wounding, or endangering prisoners of war (ICRC 1960). It also includes protection from “…any direct injury: blows, torture, cruelty, mutilation, medical or scientific experiments which are not in the interest of the prisoner” (ICRC 1960). The Third Geneva Convention paints with a seemingly wide brush in its inclusion of categories of actors that qualify for POW status and also in its protection of those persons. Article 32 of the Fourth Geneva Convention, relating to the protection of civilian populations, states, “Like murder, torture is one of the acts listed in Article 147 as a ‘grave breach’.”

The Geneva Conventions very clearly prohibit any form of torture and cruel treatment of POWs, civilians, and participant enemies who have surrendered. They go to great lengths to ensure the protection of basic human rights for individuals and groups who may, in times of war, be susceptible to having those rights violated. If any specific party could reinterpret Geneva to allow torture, then that party could reinterpret anything. Likewise, the United Nations’s “Convention Against Torture” (CAT) sought to achieve similar goals with a greater emphasis on torture. The document was ratified by the United States in 1994. It contains 53 articles outlining the inherent rights of human beings and the responsibilities of governments to protect people against torturous and inhumane treatment. The CAT explicitly prohibits agreeing parties, including the United States, from making any circumstantial exceptions or justifications for torture by invoking authority (Article 2) or practicing rendition (Article 3).

After a look at the U.S. Constitution and two international treaties related to torture, it certainly seems to be clear that criminals in U.S. territory may not be subject to any cruel and unusual tactics; the wide array of persons who qualify for prisoner-of-war status are protected from all forms of torture and cruelty in all circumstances; civilians and surrendered enemies may not be murdered or subject to inhumane, humiliating, or cruel treatment for any reason; no person may be extradited to a state where it is believed torture will take place; and no person may be subject to severe pain or suffering to draw out information or to punish by an individual acting in the capacity of a public official—no exceptions.

How then did the United States government seem to get it all so wrong? —because it wanted to. In order to justify using unlawful tactics—clearly forbidden by the previously mentioned conventions—for interrogations in the War on Terror, the George W. Bush administration assigned the enemy a new status and adopted unreasonable criteria for what counts as torture in order to bypass nearly all legal restrictions and prohibitions; the infamous “Torture Memo” from the Office of Legal Counsel (OLC) gave the go ahead for agents of the state to use virtually any tactics they saw fit on terrorist suspects and prisoners. One of the primary steps of the justification process was to assign captured enemies of the War on Terror a status that is unprotected by the Geneva Conventions and the Convention Against Torture (Office of the Deputy Assistant Attorney General, 2003). The OLC also specified that Congress could not interfere with the President acting in his role as Commander in Chief , who subsequently concluded that Al Qaeda and the Taliban were to be referred to and treated as unlawful and illegal combatants. Regarding which actions were then prohibited against unlawful combatants, the OLC made the determination that the U.S. Military, the Central Intelligence Agency, and other agents of the state could not be restricted by criminal statutes barring “simple assault” and other use-of-force violations, specifically 18 U.S.C.§ 113, as long as they had no intent to commit murder during interrogations and were outside U.S. territorial jurisdiction. Throughout the rest of the memorandum, the OLC continued this same pattern of finding loopholes in any laws, treaties, and regulations that would normally prohibit cruel and unusual conduct and arguably torture.

The Office of Legal Counsel may have been successful in bypassing legal barriers to government-sanctioned torture, but it had no way of changing the proven ineffective nature of using the tactic as an interrogation tactic. A victim who is being tyrannized, dominated, and humiliated does cooperate to some degree—but not often in the sense that he or she unveils a real knowledge about requested information. Instead, he fabricates information that will get the oppression to stop. For example, Khalid Shaikh Mohammed, one of the masterminds behind the September 11th terrorist attacks, was waterboarded by U.S. intelligence agents during interrogations. He confessed to and took credit for 31 different terrorist operations including 9/11 and the beheading of journalist Daniel Pearl. However, experts argue that no single terrorist, not even one as distinguished as Mohammed, could be responsible for 31 separate plots (Stern 2007, 217). Some people may argue that he deserves everything he gets for any level of responsibility or involvement with September 11th, but the issue is not whether men like Mohammed deserve torturous treatment. The problem is that if a small number of high-value detainees are confessing, when tortured, to numerous atrocious crimes they did not commit on top of those offenses that they did commit, then many of the individuals who are truly responsible are walking freely today and investigations that should not be closed are closing. It is important for several reasons that intelligence-gathering agencies use the most effective tactics at their disposal to ensure the best possible sense of security rather than an illusion of it.

In 2009, President Barack Obama banned torture with an executive order. In 2015, Congress succeeded in passing its own torture ban into law. The current Army Field Manual does not allow torture, and, more specifically, it does not allow waterboarding (Myre 2018). For about a decade now, the CIA has not used the tactics that were once a part of its enhanced interrogation program (Timsit 2018). However, there is a distinct set of highly effective interrogation tactics that the United States government used within the CIA’s program that was often categorized by critics and the public as “torture,” though not rightfully so. These tactics were far more humane and infinitely more productive; they are called stress techniques. Unfortunately, when the interrogation program was heavily criticized, with good reason, and the Abu Ghraib scandal broke, many effective stress techniques were thrown out alongside torturous ones (MacDonald 2006, 93). “Stress techniques” is a broad category used to describe tactics such as stress positions, minor sleep deprivation, irritably monotonous conditions, etc. These methods maximize the effectiveness of an interrogation while minimizing negative physical and psychological effects on interrogees. The CIA describes stress positions as “producing mild physical discomfort from prolonged muscle use, rather than pain associated with contortions or twisting of the body (CIA 2002).”

The activities that fit under this rubric (e.g., subject sits on the floor with legs extended and arms above his or her head) are far from sadistic and are quite possibly even similar to what an individual might witness if he or she were observing an aerobics class at the YMCA. The CIA memo involving the description of stress positions also includes instructions for the appropriate use of sleep deprivation. It explains that preventing sleep for controlled periods of time reduces the ability of suspects to think and react quickly and motivates them to cooperate with interrogators. The effects of sleep deprivation are remitted by simply allowing detainees to have a normalized sleep schedule for one to two days. The side effects are minimal and counteracting them is effortless. In the case of Mohamed al-Kahtani, a Saudi who had fought alongside some of the bin Laden bodyguards, interrogators gathered outside his cell and sang “Time Is on My Side” by the Rolling Stones for lengths of time or played Metallica songs through a stereo. After 18 hours of these methods accompanied by questioning, Kahtani became convinced that he was sold out by his partners and gave up information about several most-wanted terrorists, including Osama bin Laden (MacDonald 2006, 90, 92). On another occasion, a young bomb maker who had been blowing up aid workers was being held by the U.S. government; he was told to stand up until he gave up the name of another certain high-value suspect. Then, the interrogator sat down and began reading a book. Several hours later, the detainee was terrified, gave up his friend, and disclosed information on where he had planted bombs. The interrogator merely made the man stand up while, in the meantime, he read a book. Furthermore, when sleep deprivation was used as an interrogation tactic, intelligence gatherers doing the questioning were awake for the same amount of time as the detainees being questioned (MacDonald 2006, 87-88).

The United States government encountered a new kind of enemy in the War on Terror, resulting in conditions of exigency and uncertainty. Consequently, individuals in charge panicked, covered their legal bases to justify illegal acts, and used inhumane treatment on human beings. Did torture save some lives? Possibly. Did it cause the destruction of others? Certainly. The descriptions of the torture tactics used by the CIA, and facts about the facilities in which they were carried out are evidence of this. The prime concern is not only that torture is generally illegal for good reason, but it is often ineffective for confessions and information gathering because unbearable pain often prevents authentic results. The only methods that proved to be tried and true on terrorists were stress techniques, which are also more humane.

 

Chase Sievers is an undergraduate student at Northern State University in Aberdeen, South Dakota. He enjoys writing about and studying politics and culture. 

 

Works Cited

 

Central Intelligence Agency. 2002. Memorandum for CIAAct NatSecAct, July 9, 2002.

International Committee of the Red Cross. 1960. Treaties, State Parties, and Commentaries. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=64864A7A2AB7E2F6C12563CD00425C7E.

MacDonald, Heather. 2006. “How to Interrogate Terrorists.” In The Torture Debate in America, edited by Karen J. Greenberg, 84-97. Cambridge, MA: Cambridge University.

Myre, Greg. 2018. Haspel’s Nomination As CIA Chief Is Reopening Debate On Torture. National Public Radio, March 14, 2018.

Office of the Deputy Assistant Attorney General. 2003. Memorandum from U.S. Department of Justice, Office of Legal Counsel, to William J. Haynes II, General Counsel of the Department of Defense, 33-4 (March 14, 2003).

Stern, Seth. 2007. “Torture Debate: Is the U.S. War on Terror Legitimizing Torture?” CQ Global Researcher (1): 211-236.

Timsit, Annabelle 2018.” What Happened at the Thailand ‘Black Site’ Run by Trump’s CIA Pick.” The Atlantic, March 14, 2018.

David J. Siemers

With dysfunction the current watchword in American politics, the public is naturally looking for solutions. The checks and balances offered by three coequal branches of government are the remedy most frequently advanced for this task. But we should exercise caution in endorsing this idea as a cure for our political ills.

 

While there is no doubt that the branches share some powers, the language we use in touting checks and balances is fundamentally flawed. It mischaracterizes the extent to which powers are shared, as well as the reason why they are shared in the first place. I argue that it is a mistake to believe that we have coequal branches of government. This misunderstanding has contributed greatly to our current political dysfunction. Restoring working governance in the United States requires reconceptualizing the desired relationship between the branches as a separation of functions.

Politicians, teachers, media authorities, and the public frequently describe American government as consisting of three coequal branches. In most cases this is noted as a truism, an off-hand remark to be believed without any real thought. The unstated assumption is that the equivalence referred to is one of power. The implication is that when any one branch objects to the plans favored by the others, that branch has the power to stymie them. This is the vague but strongly held understanding of checks and balances that presently approaches consensus in the United States.

The problem with this truism is that it fundamentally resets the nation’s constitutional structure. The American founders did not set up a consensus-oriented government where all institutions needed to agree to take any concerted or forceful action. On the contrary, the founders were trying to escape a consensus-oriented regime. The Articles of Confederation handcuffed the national government for a decade. The founders knew better than to require the agreement of all its institutions on any particular decision.

The Founders did not set up a consensus-oriented government where all institutions needed to agree to take any concerted or forceful action. They were trying to escape a consensus-oriented regime.

Additionally, the founders frankly acknowledged huge disparities of power between branches. The Federalist was entirely orthodox in insisting that “in republican government the legislative authority necessarily predominates.” That was James Madison, writing in essay #51. In Federalist #78, Alexander Hamilton observed that “the judiciary is beyond comparison the weakest of the three departments of power.” If the United States government consists of three coequal branches, no one bothered to tell the authors of the Constitution.

Subsequent generations did not understand the federal government to be set up in this way either. In fact, the understanding that there are coequal branches is of recent vintage. This late view is based on a mischaracterization of what the founding generation did believe and did set up: a government with three equally legitimate branches where each has an equal right (and an equal duty) to exercise the specific constitutional powers granted to it. Prior generations occasionally noted the branches’ equal legitimacy, but never their equal power.

Enterprising political actors are skilled at promoting ideas that suit them, however. And that is precisely what happened to our understanding of the Constitution’s separation of powers. The term coequal, as well as the idea of checks and balances, was repurposed to suit presidents aiming to bolster their own claims to power. Curiously, it was not the “usual suspects”—Woodrow Wilson or Franklin Roosevelt—who rhetorically reengineered our constitutional narrative to benefit the executive branch. It was Richard Nixon. Well after the creation of the modern presidency, when the American public was already accustomed to thinking of presidents as powerful, Nixon argued that Congressional investigations into Watergate offended the president’s status as Congress’ equal. Every subsequent president but Carter has used the locution that the branches are coequal.

The term coequal, as well as the idea of checks and balances, was repurposed to suit presidents aiming to bolster their own claims to power.

Federal judges have gotten in on the act as well. In the last fifty years, many Supreme Court decisions have employed the phrase “three coequal branches,” vaguely eliding what is actually equal about them. Both presidents and Supreme Court justices have tremendous incentives to make the American public believe that these institutions are equal in power to Congress. They have carefully crafted their words to give this impression. The media and the public, not knowing better, have gone along with this pithily phrased reconfiguration of power.

Even more strange is that this idea did not originate with presidents or justices. Rather, the “myth of equality” originated in Congress, the branch that had the most to lose under this new arrangement. The founding generation understood that the branch that writes legislation provides by far the greatest direction to the state. They intentionally empowered Congress to undertake this task, advised by the president, of course. As Madison’s words indicate, they believed that granting Congress the power to write legislation confirmed the legislature’s “predominant” position within the government.

So why would Congress intentionally discount its own power? This was part inadvertent mistake and part strategic calculation. In the early 1950s, California Senator (and majority leader after the death of Robert Taft) William Knowland started employing this idea in his efforts to counter the Truman Administration. He apparently did not recognize that his rhetoric diminished Congress’ traditional role.

The “Myth of Equality” originated in Congress, the branch that had the most to lose under this new arrangement.

By the 1960s, Democratic Congressional leaders were regularly repeating the understanding that there are three coequal branches. Rank and file members of Congress have done so ever since. If Congress is understood to be the most powerful directive force in the government, then its members will be held responsible for the condition of the nation. Representing just one of three coequal branches allows members to avoid responsibility. They claim that if it were up to them, the nation’s problems would be solved, but unfortunately they cannot control the other coequal branches. This rhetorical strategy pays off handsomely during elections.

Coequality suggests that all branches are equally entitled to weigh in on every issue that comes before government. This also reengineers the constitutional system. It short-circuits a kind of humility that is supposed to be built into constitutional government. It bypasses the first question that should be asked by every constitutional actor: “are we authorized to do this?” Instead, presidents place their stamp on every area of government concern and it is presumed that justices can pronounce judgment on anything the government does.

By contrast, the Constitution itself has the legislature legislating, the president executing the law, and the judiciary deciding with finality the disputes that occur under the law, with few exceptions. The primary concern of the founders was not, in fact, to check each branch with the equal power of the others. Their primary concern was to selectively employ shared powers to keep the three distinct functions of government operating squarely within their separate constitutional spheres. In thinking that checks and balances are at the heart of the founders’ project, we do violence to their interest in creating a workable government.

The Philadelphia Convention was far more concerned that legislatures, not executives, would gather power to themselves. This was based on their own lived experience. Madison called legislative power an “impetuous vortex” that threatened to crash through constitutional barriers. Accordingly, the Convention dealt the president in to the legislative process. It would be hard for Congress to usurp the president’s executive power given the latter’s ability to veto legislation and to help set the national agenda. Realizing that executives could also be imperious, they required nominations for high-level positions be approved by the Senate, but they granted the legislature no corresponding executive power. The judiciary was not granted any legislative or executive power. It was insulated through the independence of lifetime appointments.

The purpose that Madison outlined for shared powers is telling, but nearly forgotten in our headlong rush to warp his thoughts into our own modern enthusiasm for checked government. Madison’s view was that the branches were each given the powers required to defend their own constitutional functions. In other words, the checks and balances set into the Constitution are not designed to produce a cumbersome, unwieldy government. Instead, shared powers are intended to preserve the separation of legislative, executive, and judicial functions, so that the system can operate effectively over the long run, without major constitutional distortions. There can and there should be robust debate about whether this vision was sound and smart, but the debate over what the founders wanted must be properly informed, not based on a fundamental misconception driven by what we want them to stand for.

Madison’s view was that the branches were each given the powers required to defend their own constitutional functions.

At stake is the ability of this government to produce lasting and legitimate outcomes. With the public thinking that gridlock is an expected or even desired norm of government, it is no wonder that political partisans on the left and the right have looked to a messiah president for results. The executive inventions of recent decades—signing statements, and the increasingly aggressive use of executive orders and executive agreements—are partly a response to this impulse. However, they also help accomplish the tasks required of a government that now has difficulty producing them. An increasingly unilateral presidency is not a positive development. Even worse is the worshipful acceptance of coequal branches that justifies the gridlock presidents aim to overcome.

What is a better remedy for our political ills? First, we need to understand that the United States government was not set up as a consensus-oriented regime that enshrines checked government as its baseline performance. Instead, we have a government with three independent branches that are each constitutionally empowered to perform their respective functions at all times. If not quite rare, clashes between the branches performing their individual functions should not be routine either.

Second, the language we use to describe this government should be more precise. What we often describe as a “separation of powers” is really more of a “separation of functions.” Neither should we blithely toss about the term “coequal branches.” The three branches do have equal constitutional standing. Each branch is equally empowered to perform its own designated constitutional tasks. Yet the government’s branches are not equal in power.

These realizations would produce a very different and more effective kind of governance than we now have. The famous dictum of presidential scholar Richard Neustadt that the United States government has “separated institutions sharing powers” should be treated with caution. There are shared powers, but they are exceptions rather than the rule. These exceptions were put in place to safeguard the separation of functions. It is more accurate to say that we have “separated institutions sharing in governing, through the exercise of their distinctive powers.”

Third, the American public must demand that responsibility accompany power. In a working constitutional system, this means two basic things. Each institution must respect the powers given to others. Unlike in previous generations, today’s government officials spend almost no effort thinking about or describing the actual constitutional boundaries imposed on their home institution. This is both a symptom and cause of the muddle that is institutional power in the United States today. The late 17th century political theorist John Locke warned of usurpation, which is when those not authorized to wield a power exercise it. The founders were keenly aware of this problem. We should be too.

The institution granted a power has a corresponding duty to employ it. Just as executing the law is not optional for the president, neither is legislating optional for Congress. This also brings us back to a foundational understanding of the US government. Locke called the legislative power “sacred and unalterable.” No one else can perform the duties given to the legislature. Congress has a duty to legislate faithfully and conscientiously, not to dither or cede its own constitutional powers to others. This can make the two houses of Congress and the president “rivals for power,” but it also produces a “necessity to compromise” among them. What we need is more governance, less grandstanding and usurpation.

There is a way forward using this government. It requires casting aside the current mantra that there are three coequal branches in favor of a more careful consideration and responsible use of the institutions we have.

 

 

David J. Siemers is professor of political science at the University of Wisconsin-Oshkosh. This article is based on his latest book, “The Myth of Coequal Branches” (University of Missouri Press, 2018), part of the Kinder Institute book series: Studies in Constitutional Democracy. He has authored three other books including “Presidents and Political Thought” (University of Missouri Press, 2009).

A Political Theory Review interview with Seyla Benhabib, Eugene Meyer Professor of Political Science and Philosophy at Yale University, about her recent book Exile, Statelessness, and Migration (Princeton University Press, 2018).

A Political Theory Review interview with Devin Stauffer, Associate Professor of Government at the University of Texas at Austin, about his recent book Hobbes’ Kingdom of Light (University of Chicago Press, 2018).

Emma Lentchner

Equality is treated as a universal and invariable concept, yet in practice authors manipulate it constantly to articulate their own interpretations, inadvertently transforming it into a political conception.

 

Has the overwhelming attention payed to the topic of equality in academic literature contributed to the achievement of equality in practice? Several political theorists have the potential to help us answer this question: Ronald Dworkin, Christian Sundquist, and Anna Stetsenko. An examination of equality among these various authors points to a fundamental flaw in the way the concept is understood: equality is treated as a universal and invariable concept yet in practice authors manipulate it constantly to articulate their own notions. By breaking down the facets discussed by these authors, we can note that some measures of equality are emphasized at the cost of others in all cases. Authors make choices in prioritizing certain questions over others. Sacrifices are made in each author’s definition, ultimately undermining the universality of the concept “equality.”

This idea that equality is multifaceted is not a new one; “it has been noted that any vision of equality defined in merely one dimension might inadvertently create inequalities in other dimensions” (Stetsenko 2017, 113). This is in part due to the fact that no author is advocating for or even discussing “true” equality in the totalitarian sense represented in Lois Lowry’s The Giver, where if one is blind, equality demands that all should be so. This idea of a true and total equality that reduces all to the same pain and pleasure exists purely in the dystopian novel section of bookstores, leading theorists to concoct their own manifestations of equality that do not insist on perfect equality. The concept of equality is first and foremost a political ideal. Dworkin and Stetsenko both explicitly utilize the term “political” in their own works to recognize this fact (Dworkin 1981a, 185; Stetsenko 2017, 113). “The demand for equality is most fundamentally a demand to end [the current] state of affairs and to attain a situation of equal more autonomy and equal self respect” (Nielsen 1981, 124). Dworkin, Stetsenko and Nielsen are all saying that equality is a concept representative of a goal, and that goal is not ultimately the true equality of all people. Stetsenko describes equality at one point as a “formula,” a word indicative of the way it is conceptualized in academia and policy — with something at the end that it is equating and achieving (Stetsenko 2017, 113). A goal is at the core of each author: for Dworkin it is creating a fair marketplace to enforce equality of resources; for Nielsen it is radical egalitarianism for justice; and for Stetsenko it is a concept and tool of social justice. Because each author is utilizing the idea of equality to serve a different (dare they say higher?) purpose, it becomes evident how they prioritize different aspects of the three questions aforementioned, causing a similar variation in their concepts of equality.

Examining equality through this political lens lays bare the myths of equal opportunity and meritocracy, concepts each of these authors has employed. Dworkin most evidently ties equality — and therefore his own political ideas embedded within his conception — to the development of an institution. “I argue that an equal division of resources presupposes an economic market of some form, mainly as an analytical device but also… as an actual political institution. … The market character of the auction… is an institutionalized form of the process of discovery and adaptation that is at the center of the ethics of that ideal” (Dworkin 1981a, 286). This describes the explicit linkage of Dworkin’s conception of equality of resources to the prevailing institution that governs his imaginary island. This system of institutions reflecting political preferences is already in place in contemporary society. Sundquist is quick to call out this fact, exposing that the reality of equal opportunity discourse is only a sham way of justifying and reinforcing structures of privilege and inequality by normalizing them: “The language and principles underlying equal opportunity reinforce structures of privilege” (Sundquist 2002, 2). It is not only in theory that political motives become interconnected with the discourse on equality, but also in practice.

The reality is that the system of meritocracy on which the United States currently prides itself is actually a political lie concealing the underlying inequalities. Any “equality” espoused by the population, whether through equal opportunity discourse or otherwise, is simply a manifestation of various political idealisms. Orlando Patterson in Beyond Compassion: Selfish Reasons for Being Unselfish, quips that “Americans seem to be confused about the notion of equality, and are either naive or hypocritical about the relationship between equity and the economic system” (Patterson 2002, 27). Richard Reeves, in his book Dream Hoarders, further dissects the myth of meritocracy by explaining that “we can have a meritocratic market in a deeply unfair society, if ‘merit’ is developed highly unequally and largely as a result of the lottery of birth” (Reeves 2017, 10). One can ultimately buy their way up the meritocratic ladder (beginning simply with extra childcare and SAT prep classes), making it a system that by no means is merely based on natural talents or equal merit.

Connecting equality to the market place makes it fail as a concept. In understanding this fact, it is important to recognize that many contemporary theories of equality, and especially those founded in economic arguments, are founded on the twentieth-century debate Robert Nozick instigated in response to John Rawls. Nozick effectively problematized the compatibility of equality and freedom to illustrate how freedom and liberty upset patterns of equality. Nozick describes the market as founded on principles of individualism and choice, concepts that are incongruous fundamentally with equality. Liberty will always upset pattern. This observation, if true, makes it difficult to obtain (any form of) equality, especially in contemporary society where freedom of choice is ingrained in the conception of democracy. As liberty upsets pattern, so individual choice upsets community welfare. This brings up a question posed at the beginning of the paper, the matter of how theorists might convince a population to relinquish their privileges. History has so far shown that general moral incentive is not enough. Authors have utilized a plethora of mechanisms to try and incentivize communal empathy, including the veil of ignorance, “selfish reasons for being unselfish,” the state of nature, inter alia. Yet, equality prevails as only truly desirable “if its costs are not too high,” representing other priorities for the majority (Nielsen, 1981, 121). Nielsen’s solution to obtaining equality is to overrule democratic means, have it “imposed from above by some dictatorial elite” (Nielsen 1981, 122). However, the conditions which prevail following the institution of Nielsen’s radical egalitarianism puts off most others: “the patterned distributions of radical egalitarianism would require such continuous and massive state intervention that it would undermine the individual liberty and the moral autonomy essential for the good of self respect” (Nielsen 1981, 123). This reflects the fact that people, especially those in the decision-making-elite, view society as a mechanism to uphold and protect rights of individual liberty rather than equalize conditions among all, and would therefore never consent (vis-à-vis democratic voting) to change this fact.

Another cleavage in academic interpretations of equality relates to whether equality is envisioned within the scope of group or individual rights. Those who focus on the rights of the group criticize those focused on the individual, claiming the latter ignore the historical contexts on which privilege is built. “The great American theme on individualism inhibits visions of privilege, since people tend to view themselves as individuals and not members of potentially privileged groups” (Sundquist 2002, 3). Privilege is inherently built into our contemporary society and years of racism, discrimination and systemic marginalization are the foundation on which everything is built. It is unsurprising, therefore, that group theorists — such as Rawls, Sunquist and Nielsen — see some form of redistributive justice as necessary atonement to achieve their versions of egalitarian society. Remedy for the past is imperative to achieve future equality. Yet those blinded by the rights of the individual see redistribution efforts as an infringement upon individual liberty. Society, which has been built on the rights of the individual has therefore built its institutions likewise. “Judges and legislators rationalize decisions that harm the equality interests of blacks by arguing that they must protect the neutral idea of individual liberty” (Sundquist 2002, 5). Those who uphold individual liberty, equal opportunity, and equality of resources support the establishment of equality from here on out, and are disturbed by redistributive concepts that would, in their minds, be taking something away from them that they believe they have earned and to which they are entitled. Alternatively, group theorists who consider how equality works within groups and how they themselves are part of a group, are attuned to the fact that the resources being taken away were most likely obtained through unequal and unfair means.

In examining these authors’ various conceptions of equality, it becomes evident that any discourse on equality is tied to a desired political outcome. No theorist, activist or political scientist is advocating for true and total equality, therefore transforming the word “equality” into a meaningless, amorphous, adaptable word representative only of an individual’s preferences. As equality becomes representative of a goal it seeks to change and remedy aspects of contemporary society, and, in doing so, confronts the question of how one simultaneously remedies the injustice of the past and prevents actions of future injustice in a manner that will be willingly adopted by all.

 

Emma Lentchner recently graduated from Smith College (’18), and majored in Political Theory and Philosophy. She is particularly interested in the underlying patterns that subliminally govern our known world and is continuously looking to explore and deconstruct these mental and institutional constructs.

 

Works Cited

 

Dworkin, Ronald. 1981a. “What Is Equality? Part 1: Equality of Welfare.” Philosophy & Public Affairs 10 (3): 185-246.

Dworkin, Ronald. 1981b. “What Is Equality? Part 2: Equality of Resources.” Philosophy & Public Affairs 10 (4): 283-345.

Nielsen, Kai. 1981. “Impediments to Radical Egalitarianism.” American Philosophical Quarterly 18 (2): 121-29.

Patterson, Orlando. 2002. “Beyond Compassion: Selfish Reasons for Being Unselfish”” Daedalus 131 (1): 26-38.

Reeves, Richard V. 2017. Dream Hoarders. Brookings Institution.

Stetsenko, Anna. 2017. “Putting the Radical Notion of Equality in the Service of Disrupting Inequality in Education: Research Findings and Conceptual Advances on the Infinity of Human Potential.” Review of Research in Education 41: 112-35.

Sundquist, Christian. 2002. “Equal Opportunity, Individual Liberty, and Meritocracy in Education: Reinforcing Structures of Privilege and Inequality.” Georgetown Journal on Poverty Law and Policy.

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Since Franklin Roosevelt’s administration, it has become common for presidential scholars to distinguish between a ‘traditional presidency’ that existed in the eighteenth and nineteenth centuries and a ‘modern presidency’ that emerged in the early to mid-twentieth century and persists today. Proponents of this distinction often see the presidency created by the Constitution as weak, lacking formal powers that might allow the office to better shape policy and direct an efficient government. By contrast, the modern presidency is viewed as much stronger and more able to address the concerns of the contemporary world, with its large administrative apparatus and emphasis on rhetorical leadership.

Such a view, however, underestimates the centrality of the Constitution and its importance in creating a baseline of power and authority that all presidents draw upon. That the Constitution remains a critical source of presidential power is particularly evident when we examine the unusual presidency of Gerald Ford.

Unique among presidents, Ford became president without facing a national electorate. After being appointed to the vice presidency by Richard Nixon under the Twenty-Fifth Amendment, Ford became president when Nixon resigned after the Watergate scandal in August 1974. Thrust into an office he never sought and to which he was never elected, institutional circumstances made Ford’s political position even more difficult. On one side, he faced the opposition of a Democratic Congress that, after the 1974 midterms, gained a veto-proof majority in the House and a supermajority in the Senate. This Congress was eager to restrain presidential power after the excesses of the “imperial presidency” under Nixon and Lyndon Johnson. On the other side, the conservative faction of the Republican Party quickly became disillusioned with Ford, resulting in Ronald Reagan’s 1976 primary challenge that nearly unseated the incumbent Ford.

Due to these pressures from Democrats in Congress and disillusioned members of his own party, Ford was largely unable to utilize the supposed advantages of the modern presidency. The bureaucracy was largely entrenched and Ford himself, never known as a great speaker, was unable to capitalize on the modern presidency’s capacity for grand rhetorical leadership.

Due to opposition on all sides, Gerald Ford was largely unable to utilize the supposed advantages of the modern presidency.

Facing large political and institutional obstacles—which some scholars have categorized as the beginning of the “imperiled presidency”—Ford turned to the only institutional support he had: the Constitution. His presidency thereby demonstrates the immense authority the office draws from the Constitution. Ford was still able to achieve some of his policy goals and protect the institutional integrity of the executive branch using nothing but the powers vested in him by the Constitution.

Ford’s use of constitutional presidential powers is first evident in how he used the pardon power to set the agenda, deciding how the nation would move past Watergate and Vietnam. Most famously, Ford pardoned Richard Nixon. While the pardon was extremely unpopular, that Ford was able to take this action on his own, without input from the other branches, and put the nation on a course where it would not have to endure the criminal trial of a president is indicative of the strength of the presidency’s pardon power. Similarly, Ford’s conditional amnesty for Vietnam War draft-dodgers and deserters set the policy agenda, putting Congress in a position where any legislation they passed would have to fit within the political reality Ford created.

The ability of the president to set the agenda via his constitutional powers is particularly evident in Ford’s actions in foreign policy. Despite resistance from members of Congress, including fellow Republicans, Ford continued Nixon’s policy of détente with the Soviet Union. Taking advantage of the fact that the treaty power allows the president to initiate diplomatic negotiations, Ford met with Soviet General Secretary Leonid Brezhnev to construct the framework for what eventually became the second Strategic Arms Limitations Treaty (SALT II) at the Vladivostok summit in 1974 and signed the Helsinki Accords with Brezhnev in 1975.

The ability of the president to set the agenda via his constitutional powers is particularly evident in Ford’s actions in foreign policy.

Similarly, Ford opened up talks with Panama for ceding control of the Panama Canal to the Panamanians—against the wishes of congressional and conservative Republican opposition. Ford’s ability to orient American foreign policy to pursue these goals despite strong domestic opposition illustrates the presidency’s constitutional capacity for shaping and directing American diplomacy, as well as for long-term policy planning. These efforts by Ford successfully laid the foundation for treaties that would be finalized during the Carter administration.

Beyond demonstrating how the president can use his constitutional authority to set the national policy agenda, Ford also illustrates how powerful the president can be in utilizing the executive’s natural capacity for energy, even when isolated from the other branches of government. We see this particularly in how Ford acted as commander-in-chief. As the Vietnam War came to a close and the communist Khmer Rouge appeared poised to conquer Cambodia, Ford recognized the need to evacuate Americans and their allies from both South Vietnam and Cambodia.

When Congress provided little support and was slow to respond to his requests, Ford acted quickly and began evacuations without congressional input or approval. He also made the unilateral decision to evacuate American allies along with Americans themselves, despite protests from both members of Congress and his own administration that evacuation efforts should focus on Americans.

After the evacuations ended, Ford was forced to act as commander-in-chief even more aggressively. Less than two weeks after the evacuation from South Vietnam, the new communist government of Cambodia seized the American freighter S.S. Mayaguez, moved the crew to the mainland, and refused to surrender either the freighter or the crew. Ford ordered military action, resulting in the successful rescue of the Mayaguez and its crew. Notably, it was only after he had given the order to begin hostilities that Ford informed Congress of his actions. Even taking the War Powers Resolution into consideration, Ford was not prevented from utilizing his constitutional powers to address the crisis in the manner that he believed appropriate.

Ford protected his basic constitutional authority and preserved the president’s role as commander-in-chief in the face of congressional efforts to become more directly involved in executive decision-making processes. The president also relied on his own normative judgment on which actions the circumstances required and was empowered to take those actions by the Constitution.

Ford protected his basic constitutional authority and preserved the president’s role as commander-in-chief in the face of congressional efforts to become more involved in executive decision making.

The efforts of Congress to undermine the integrity of the executive branch, however, were not limited to issues in foreign affairs. Domestically, in addition to his use of the pardoning power, Ford used the veto to assume leadership in legislative matters, often wielding it to force Congress on compromise on various policy measures. The veto became a key weapon in Ford’s fight to defend the power of the executive branch.

Congress often included legislative veto provisions in bills they sent to the president that would allow them to “review, defer, and or disapprove of executive actions.” Ford argued that legislative vetoes were “contrary to the general principle of separation of powers,” obscured the distinction between legislative and executive functions, and violated the basic legislative procedure laid out in the presentment clause. In response, Ford took to vetoing bills that contained legislative veto provisions.

While Ford’s vetoes were not always successful in stopping Congress’ efforts—twelve of his vetoes were overridden, the second-highest number of veto overrides after Andrew Johnson’s fifteen—Ford was often able to use his position as “chief legislator” strategically to create “floating coalitions” of congressman and thereby disrupt override efforts. That Ford was successful in preventing some overrides highlights the difficulty Congress faces in overriding presidential vetoes and illustrates how powerful the veto is as a tool of presidential policy-making.

Ford’s administrative control of the executive branch also served to defend the institution against legislative encroachment. When Congress initiated investigations into the CIA with the Church and Pike committees, Ford was able to head off the committees through the formation of executive commissions designed for the same purpose. These commissions, one chaired by Vice President Nelson Rockefeller called the Rockefeller Commission and the other called the Intelligence Coordinating Group (ICG), allowed the administration to maintain some control over these investigations in the executive branch without appearing to ignore the problem. While the commissions did not fully deflect the congressional investigations, they did provide Ford with alternative recommendations for reforming the intelligence community that were not as compromising as those proposed by the congressional committees.

Apart from simply maneuvering around the committees, Ford also addressed the investigations more directly. First, he invoked executive privilege to prevent the committees from gaining access to confidential information and rejected a subpoena the Pike Committee served to Secretary of State Henry Kissinger to testify. Second, Ford used an executive order to reorganize the intelligence agencies and mandate policy changes to preempt the congressional investigations, effectively “muting subsequent congressional debate on the matter.” Thus, even while the congressional investigations put Ford on the defensive, he was able to use his superior position and administrative authority derived from the Constitution’s structure and powers to defend executive control of the intelligence agencies and repel congressional intrusions.

Even while congressional investigations put Ford on the defensive, he was able to use his superior position and administrative authority to defend executive control over agencies.

Despite being unelected and facing substantial opposition from both Congress and his own party, Ford was able to consistently rely on the power provided to him by the Constitution for pursuing and achieving his policy goals. While not successful in every instance, Ford’s presidency demonstrates that even when stripped of the supposed advantages of the modern presidency, the president can rely on the basic powers provided to him by the Constitution to not only hold his own against the other branches, but also succeed in obtaining some of his major initiatives. While Ford is often hailed for his moral leadership, he must also be recognized as an excellent example of the capacities of the constitutional presidency and how the office’s constitutional authority continues to persist into the modern era.

 

 

Jordan T. Cash is a PhD candidate in political science at Baylor. His primary research interests include constitutional law, American politics, and the history of political philosophy. He has written on judicial review for Law and History Review and has an article on the presidency of John Tyler forthcoming in American Political Thought.

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