10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 1 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

Grasping Reality with Both HandsThe Semi-Daily Journal of Economist J. Bradford DeLong: Fair, Balanced, Reality-Based, and Even-HandedDepartment of Economics, U.C. Berkeley #3880, Berkeley, CA 94720-3880; 925 7080467; delong@econ.berkeley.edu.

Economics 210aWeblog ArchivesDeLong Hot on GoogleDeLong Hot on Google BlogsearchSeptember 26, 2010

Social Studies 50th Anniversary Symposium: Is There Hope

for the Rule of Law in America?

That was the question asked by Denver University Professor Alan Gilbert during themorning panel.

Here is the answer I gave, as best as I can reconstruct it:

The question is: "Is there hope for the rule of law in America?" My answer is: No.

Begin with the assassination of George Villiers, Duke of Buckingham and PrimeMinister to King Charles I Stuart, on 23 August 1628. Nobody at the time doubted theking's power to torture the confessed assassin, John Felton, on the rack--the king'sfather James I Stuart had tortured Guy Fawkes and the other Gunpowder Plotsuspects. But the king's power to torture was part of his prerogative powers of state,and Charles I Stuart sought to reserve his prerogative powers for use in moreimportant arenas--that is, to raise money with them.

Thus Charles I asked his judges to authorize the torture of John Felton not as an act ofstate under the royal prerogative but as part of the process of the criminal law. Andlet's let William Blackstone pick up the story at IV, 25, 326 of his Commentaries on the

Laws of England:

[T]rial by rack is utterly unknown to the law of England; though once... [the]ministers of Henry IV [Lancaster]... laid a design to introduce the civil law into thekingdom as a rule of government... erected a rack for torture, which was called inderision the Duke of Exeter's daughter, and still remains in the Tower of London;where it was occasionally used as an engine of state, not of law, more than once inthe reign of queen Elizabeth.

But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it

Dashboard Blog Stats Edit Post

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 2 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

was proposed in the privy council to put the assassin to the rack in order todiscover his accomplices, the judges, being consulted, declared unanimously, totheir own honour and the honour of English law, that no such proceeding wasallowable by the laws of England...

With the Great Revolution of the 1640s the prerogative powers of the monarch of theUnited Kingdom shrank. And with the Glorious Revolution they shrank again. Andwith the accession of the German-speaking Hanover dynasty they shrank yet again.And by 1789, when James Madison and company moved the then-powers of themonarch of the United Kingdom to make them the powers of the President of theUnited States, there were no prerogative powers left: the President was 100% ChiefMagistrate with the power and the duty to take care that the laws be faithfullyexecuted, and 0% princeps legibus solutus.

So things stood for 200 years--save for Abraham Lincoln's arrogation of Congress'sArt.I §9 power to suspend the "privilege of the writ of habeas corpus in "cases ofrebellion or invasion" but only when such suspension was "required" for the publicsafety.

So things stood until John Yoo.

Now John Yoo is an interesting case. In 2000 he was arguing at the Cato Institute thatthe President's powers as commander-in-chief were extremely crabbed and narrow--and that President Clinton had, in fact, exceeded his c-in-c powers and underminedthe rule of law by ordering American soldiers to obey the orders of a British NATO

general. That the president--or, indeed, that any commander--does not have thepower to place American soldiers under allied command would have been a greatshock to Dwight D. Eisenhower, or Harry S Truman, or Franklin D. Roosevelt, orWoodrow Wilson, or William McKinley, or indeed George Washington himself. Yoo'sclaim in 2000 had absolutely no warrant in the constitution, in the law, in precedent,or in history.

But that is how it is with Yoo.

Sources who should know and whom I believe to be reliable tell me that whenhistenure case moved through the University of California at Berkeley, historiansobjected to his use of history in his published articles: "What the frackity-frack is this?"they asked. "This isn't history. This isn't how it happened. This isn't wie es eigentlich

gewesen." The response of then then-Dean of Berkeley Law School, a response thatwas convincing to the then-Chancellor of the University of California is said to havebeen that history plays a special role in legal academia and argument. In legalacademia, one's claims about history do not have to be true, the argument went.Indeed, a major mode of legal argumentation and academic debate is to make falseclaims about what the law has been in past in the hope that those claims will thenshape what the law will be in the future.

By 2001 with a Republican as president John Yoo had reversed field 180 degrees. Hewas making a very different set of false claims about what the law of America had been.He was then claiming that the president's commander-in-chief powers containedwithin them prerogative powers to torture and kill outside of legal procedure thatwould have astonished George III Hanover, and even exceeded those of William IConqueror. When William I Conqueror tortured or killed, he agreed owed his barons atleast an after-the-fact accounting of why if not any before-the-fact procedural checks.

Backed by John Yoo and company, George W. Bush claimed that he did not owe even

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 3 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

an after-the-fact accounting. And Barack Obama holds to the same line.

So I see no hope.

Brad DeLong on September 26, 2010 at 04:46 PM in Moral Responsibility, ObamaAdministration, Politics: Civil Liberties, Strategy: Grand Strategy, Utter Stupidity |Permalink

Reblog (0) |

Favorite

| Digg This | Save todel.icio.us | Tweet This!

TrackBack

TrackBack URL for this entry:http://www.typepad.com/services/trackback/6a00e551f0800388340133f49bd26e970bListed below are links to weblogs that reference Social Studies 50th Anniversary Symposium: IsThere Hope for the Rule of Law in America?:

Comments

Wexit said...Berkeley City Council Declares “NO To Torture” Week Oct. 10-16

In a move welcomed by civil liberties and human rights groups nationally, last weekthe Berkeley City Council unanimously approved a resolution declaring “Berkeley SaysNo to Torture” Week (October 10-16). The resolution emerged from a grassrootscampaign supported by many local organizations and leaders.

The campaign will present a week of public educational events, many featuringprominent writers, attorneys, protest leaders, artists and religious leaders. Thesepanels, debates, bookstore and museum events will take place throughout Berkeley.Anti-torture protest demonstrations are also scheduled. A personal statementsupporting “Berkeley Says No to Torture” Week from Fernando Botero, theinternationally acclaimed artist whose “The Abu Ghraib Series” paintings are now inthe permanent collection of the UC Berkeley Art Museum, can be found along withmore event details at http://www.WeSayNoToTorture.net.

On their website the organizers say: “[We] are condemning the American tortureprogram made infamous to the world through the leaked photographs from AbuGhraib and a wealth of damning evidence marshaled in recent years through the workof journalists, legal and civil rights forces, and filmmakers. Under the regime ofBush/Cheney, their program of nightmarish war crimes was committed in our namesthen – but illegal torture and abuse, and the shredding of basic legal and human rightsfor whole “enemy” populations, is continuing now, long past Bush and under the newDemocratic administration.”

The theatrical reading “Reckoning with Torture,” originated by the ACLU and theAmerican Pen Center, will take the stage at UC Berkeley Law’s Booth Auditorium onOctober 15. This West Coast premiere production of “Reckoning” will feature nationallyknown civil liberties leaders, poets and actors, and the voices of torture survivors

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 4 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

themselves.

For a full calendar go to http://www.WeSayNoToTorture.net. For more information orinterviews with representatives of participating organizations go to that website’sABOUT page. For interviews with World Can’t Wait, contact Linda Jacobs.

The “Berkeley Says No to Torture” Week is a collaborative project of theseorganizations and individuals: World Can’t Wait, National Lawyers Guild (SanFrancisco), Progressive Democrats of America, Meiklejohn Civil Liberties Institute,National Accountability Action Network, Code Pink, FireJohnYoo.org, BerkeleyFellowship of Unitarian Universalists Social Justice Committee, Rev. Kurt Kuhwald,Bill of Rights Defense Committee, East Bay Sanctuary Covenant, Flashpoints Radio(KPFA), Haiti Action Committee, La Raza Centro Legal, Moe’s Bookstore, RevolutionBooks, School of the Americas Watch(SOAW) East Bay and SF chapters, Fr. LouisVitale, OFM, WarCriminalsWatch.org, and Al Young (California Poet LaureateEmeritus)

Reply September 26, 2010 at 05:14 PMlatinist said..."By 2001 with a Republican as president John Yoo had reversed field 180%."

Are you sure you don't mean he had made a 100-degree turn?

Reply September 26, 2010 at 05:25 PMMark Field said...If you really want to be depressed, read the discussion at Volokh:http://volokh.com/2010/09/25/administration-invokes-state-secrets-in-targeted-killing-case/comment-page-5/#comment-968448

Reply September 26, 2010 at 05:35 PMTrainwreck said..."Indeed, a major mode of legal argumentation and academic debate is to make falseclaims about what the law has been in past in the hope that those claims will thenshape what the law will be in the future."

That, thank god was not what I was taught in law school. And in fact one getsdangerously close to violating the rules of professional conduct when one resorts tomaking up facts or by claiming the law to be what one knows clearly it is not. As stated in the ABA's Model Rules of Professional Conduct:

AdvocateRule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statementof material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction knownto the lawyer to be directly adverse to the position of the client and not disclosed byopposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or awitness called by the lawyer, has offered material evidence and the lawyer comes toknow of its falsity, the lawyer shall take reasonable remedial measures, including, ifnecessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other thanthe testimony of a defendant in a criminal matter, that the lawyer reasonably believesis false.

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 5 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

http://www.abanet.org/cpr/mrpc/rule_3_3.html

Reply September 26, 2010 at 06:51 PMDavid Cay Johnston said...Brad,

That is a shocking assertion about made up facts by Prof. John Yoo.

If provable, it ought to be a major concern to the entire faculty.

Forget what you or I think of Yoo's legal reasoning, making up facts is lying.

In my old line of work it was an automatic firing offense on the first occasion ifsomeone made a solid case.

Among my colleagues in my new profession lecturing at Syracuse Law and grad bizschools I cannot imagine anyone tolerating manufacturing facts in a published paper.

Mistakes? Sure. We all make them.

Bizarre interpretations. Sure.

But making stuff up is lying. Period. And it ought to get one fired. Period.

So has anyone investigated this, as we have seen other universities do with medical,physics and other hard science professors?

Reply September 26, 2010 at 06:55 PMsave_the_rustbelt said...If we disbarred every lawyer who bent or stretched the truth there wouldn't be manylawyers.

If we denied tenure to every economist who makes a very bad argument (say, NAFTAwill be good for US workers) there would be few economists.

Or maybe we should consider the innocent women and children who died at the ordersof Janet Reno.

It is a very complicated world. The list of perfect public officials is very short.

Reply September 26, 2010 at 07:05 PMdilbert dogbert said...Rusty,The discussion is about the bush administration and the torture memos. SpecificallyYoo and the rule of law.

Reply September 26, 2010 at 07:32 PMBrad DeLong said in reply to David Cay Johnston...The then-Berkeley Dean is correct, however, in that this is how much legal argumenthas worked. Vide William Best in 1824 on seventeenth century judge Edward Coke:

The fact is, Lord Coke had no authority for what he states, but I am afraid we shouldget rid of a great deal of what is considered law... if what Lord Coke says withoutauthority is not law...

Yours,

Brad DeLong

Reply September 26, 2010 at 07:38 PMTrainwreck said in reply to save_the_rustbelt...As an attorney I am not afraid to say that no other profession should be held to a

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 6 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

higher level of ethical conduct then those that practice the field of law. Many attorneyslose their law licence or get seriously sactioned by forgetting their ethicalresponsibilities.

Essentially, we can live by the rule of law and hold those that practice it to a highstandard of ethics or we can live by the rule of power, and cave to the practice ofbribery, thuggery and outright persecution. Banana republics, totalitarian states andoligarchies govern by the later, I would rather be governed by the former.

Reply September 26, 2010 at 08:09 PMBob Athay said..."... is said to have been that history plays a special role in legal academia andargument. In legal academia, one's claims about history do not have to be true..."

WTF?!? I hope the dean didn't actually say that asserting as historical fact somethingthat is provably false is allowable in legal academia. Asserting as true something that is_not provably false_ is one thing: even in the hard sciences experimental results areoften ambiguous. But asserting as fact something that is _known_ to be false is anothermatter entirely.

Reply September 26, 2010 at 08:22 PMDrDick said in reply to Trainwreck...I hope you have a valid passport and can get a visa. I share Brad's pessimistic outlookand fear that the Republicans and our economic elites are determined to transform thiscountry into a third world banana republic.

Reply September 26, 2010 at 08:45 PMTrainwreck said...I never said we as a nation were not on the path toward banana republic, I am simplysaying if you desire a true democratic republic, then you should always defend to yourdeath the rule of law. Those that oppose the rule of law have earned the right to hangby the rule of might.

Rule of law or rule of power, make your choice.

Reply September 26, 2010 at 09:12 PMRW said in reply to save_the_rustbelt...Pathetic and oddly convenient: Your world has suddenly become too complex forethical revulsion? Either the projected Republican electoral victory has emboldenedyou or you're slipping but, regardless, neither your moral equivocation nor interjectionof non sequitur* is edifying.

*Although your comment WRT Reno is utterly irrelevant to the current discussion -Woo's memos guided national policy and constitutional interpretation whereas thedeaths at Waco were an operational administrative decision -- one can grant that the(allegedly abused) children who died at Koresh's funeral pyre were innocent; but noone else was, no one.

Reply September 26, 2010 at 09:54 PMAlanDownunder said...While Presidents tell Attorneys General who and who not to prosecute, the rule of lawis suspended. Since Obama has told Holder not to prosecute even the crimes of theprior administration for which there are public confessions ("looking forward" is, Igather, the euphemism), there is now very little hope. Holder could also prosecuteObama for authorising targeted assassinations.

Reply September 26, 2010 at 11:10 PM

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 7 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

joe said...As the quip goes: When the facts are on your side, argue the facts. When the law is onyour side, argue the law. When neither is on your side, just argue!

Of course that doesn't excuse Yoo in the least. The real tragedy is that there is so littlepublic outrage.

Reply September 26, 2010 at 11:39 PMr.d. said...To those who are in favor of the rule of law? What do you think about the "livingConstitution" view, that the SCOTUS can essentially bend the meaning of theConstitution as far as it wants in order to effect good outcomes?

Reply September 27, 2010 at 02:16 AMsave_the_rustbelt said...NYT: U.S. seeking to expand wiretaps on the internet

Washington -- Federal law enforcement and national security officials are preparing toseek sweeping new regulations of the Internet, arguing that their ability to wiretapcriminal and terrorism suspects is "going dark" as people increasingly communicateonline instead of by telephone. - 8:44 am

So much for obama the liberal.

Reply September 27, 2010 at 05:57 AMDrDick said in reply to r.d....I know that the blatant politicization and activism of the Roberts' Court is a majorproblem, but the Constitution is not and never was intended to be a static document.The Supreme Court was already reshaping and extending provisions within a decade ofratification.

Reply September 27, 2010 at 07:17 AMMark Field said in reply to r.d....Since that's a caricature of living constitutionalism, I don't spend any time thinkingabout it at all.

Reply September 27, 2010 at 07:51 AMhoward said in reply to r.d....r.d.: i think what you've said is a complete myth, so i don't have to worry about it and ido continue to believe in the rule of law.

if you want to say something reasonable, like "there are times when the supreme courtfinds an argument that i can't agree with," i agree completely, but that's an entirelydifferent matter.

words are interpreted: anyone who thinks otherwise doesn't belong in the discussion atall.

Reply September 27, 2010 at 07:55 AMhoward said in reply to save_the_rustbelt...because of course, save_the_rustbelt, there are lots of us who think that obama is aliberal.

whatever are you carrying on about? the man voted for FISA immunity in 2008: thatwas the moment that made it clear that he was no liberal and he was, in terms of statepower, not hugely dissimilar to john yoo.

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 8 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

who among us can you point to in september, 2010 that thinks obama is a "liberal?"(and no, right-wingers saying he's a socialist don't count).

Reply September 27, 2010 at 07:57 AMaimai said...I think a more adqueate response to r.d., though I appreciate Mark Field's "No moreinteresting in arguing with you than with a dining room table..." approach, is to pointout that when law makers make law that is, definitionally, following the rule of law. Aone off "this is not a precedent" ruling, such as Bush v. Gore, would, of course, not belawful in any meaningful sense. But the problem isn't that it bends or pervertsfounding documents but that it refuses to admit that it carves out a special case whichcan not serve as precedent and thus breaks the chain of reasoning and lawful acts thatmakes things lawful or not lawful. Actuall, Mark Field's was in the right of it. I'll gowith what he said.

aimai

Reply September 27, 2010 at 07:59 AMManta1976 said...Dear Brad,

if your account of what happened at Yoo's tenure is accurate, the Dean and theChancellor should be fired, the whole Berkeley law school should be scrapped andredone from scratch, and if Yoo is still tenured, it's because he is in good company inthe faculty. Therefore, I urge you to investigate more in deep these claims.

Reply September 27, 2010 at 08:00 AMAdams said...This post earns you back some of the cred you lost with last week's fawning adulatoryapologia of Larry Summers "tenure" at the W. H.

You might have totally redeemed yourself if you had mentioned the extent to which theOrahma administration has broadened and deepened the executive assault on the ruleof law. Or at least linked to Glennzilla:http://www.salon.com/news/opinion/glenn_greenwald/2010/09/25/secrecy/index.html

Reply September 27, 2010 at 08:42 AMBrad DeLong said in reply to Adams...Take the link to Glennzilla as made...

Reply September 27, 2010 at 08:46 AMnilso said in reply to Manta1976...You took the words right out of my mouth. At what point does "academic freedom"become academic malfeasance, and thus no longer defensible? If *anything* can beexcused under the aegis of "academic freedom", then you have a loophole in the law,allowing a breakdown in our system of laws.

Oh, that's what Prof. DeLong was saying!

So when do the dean and the chancellor get called to account for this continuingcoverup of malfeasance?

Reply September 27, 2010 at 08:54 AMAdams said...Please consider yourself redeemed. In the political sense only, of course.

Reply September 27, 2010 at 08:58 AMPatrick (G) said...

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 9 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

Obama's position RE: Torture can be considered in this way:

We know that the U.S. Military forces(and unnamed national security agencies) havecommitted egregious war crimes such as systematic torture of prisoners in violation ofU.S. Laws and treaties.

If they were honestly investigated, tried, and punished according to the establishedlegal precedents, the end result would be a whole bunch of U.S. generals summarilyexecuted by firing squad.

Ain't gonna happen.

Hell, Obama's administration couldn't conduct Bank stress tests without pulling theirpunches, what makes you think they'd do better facing down military officers currentlyengaged in two wars instead of fat cat bankers with insolvent banks?

Reply September 27, 2010 at 09:51 AMManta1976 said in reply to nilso...Truth to be told, I think Brad's account is exaggerated (being hearsay, and so on).However, the reputation of a department (and of a whole discipline) rest heavily on theassumption that the kind of things Brad claimed do NOT happen, and when they arediscovered, tehy are punished. Knowlingly making false claims to advance one'sargument is the highest form of academic malfeasance I could conceive (much worse,for instance, than plagiarism), because much of the academic discourse is based onassuming good faith in your interlocutor.

On the other hand, it could become a neat slogan for Berkeley's law school: "Makingup facts, since 1894".

Reply September 27, 2010 at 10:22 AMIndigenous Centurion said...

"tortured Guy Fawkes and the other Gunpowder Plot"~~Brad DeLong~

A penny for the Guy?

Reply September 27, 2010 at 11:31 AMBrad DeLong said in reply to Manta1976...RE: Truth to be told, I think Brads account is exaggerated (being hearsay, and so on).

Perhaps.

It would be nice to know...

Yours,

Brad DeLong

Reply September 27, 2010 at 11:42 AMConfabulator said...My terse summary: Bush/Yoo usher in a new era sans rule of law. Barack Change-You-Can-Believe-In Obama gives them a pass and picks up where they left off. Both partiesare now complicit leaving the electorate with no place to go. We have the added bonus

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 10 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

of cover being provided by a top university so the intellectuals are in on it too.

And, as an aside, thanks to our Supremes we now have large (multi-national)corporations exercising their free speech rights to elect those politicians that will servethem best and jettison those who won't throw the voters under the bus.

So who cares about us?!?

No one. We're f*cked.

Reply September 27, 2010 at 01:11 PMMaynard Handley said...It seems to me that the large scale history of these things has always been that law andcustom are written up, followed, and twisted and bent, to protect some at the top fromthe rest at the top. Whether it's Roman law or Magna Carta or the US "3/5ths"Constitution --- to the extent that anyone else gets protection, that's unexpected falloutfrom what happens at the top.

Occasionally we get Gracchi brothers who figure they can derive power (and, whoknows, maybe they actually care about improving the world along the way?), fromharnessing the masses, but that's a problematic route because, sad to say, the massesare generally short-sighted idiots with poor impulse control, no ability to plan, andremarkably susceptible to believing whatever nonsense they are told.

THUS to our current situation. I don't believe hope for the future will come from thelaw --- that magnificent profession that gave us (and happily continues to coddle) JohnYoo, not to mention Scalia, Alito et al and their "Bush gets the presidency, but thisdecision is a one-off that never gets to be used for any other purpose again". And I don't believe hope for the future from the masses, no more impressive than theirRoman contemporaries. The US aristocracy can keep them in control for as long asnecessary by distracting them with nonsense about gay marriage or wars on christmason similar nonsense and, when things get really tough, will bring out the big guns indistracting them --- "maybe, just maybe, if you're all good little citizens, we mightfederally legalize marijuana". Whether by design or accident, the US has constructed a system that manages to allowmany of the brightest to escape from the masses. They don't get to the upper echelons,for the most part, but they do get a mortgage and a job --- enough that it doesn't makesense to risk it all on violence and political extremism. (Unlike South Africa and unlikeIsrael, where there were and are large populations with little to lose.)

So the only real hope would be if the upper class felt that they might be hurt by law. Ofcourse they might by criminal law, hence, truth is, they have no REAL complaintsabout Miranda and insanely complicated laws of procedure, evidence, jury selection,etc. The more such complications there are, the better for allowing a $5000/an hourlawyer to get young Biff III off the hook for drunk driving or raping his girlfriend orwhatever it was. (cf any celebrity trial of the past 50 years). On the other hand, any sortof REAL attempt to crackdown on white collar crime or tax evasion or insurance fraud,we can't have that. So we get punishment for those who were simply too stupid or toogreedy to hide what they were doing, but life goes on as before for everyone else.

Which all means that as long as torture, rendition, targeted assassination etc aredeployed against what "we" all *agree* are enemies of the state, they'll continuewithout much pushback. So what will happen?

Possibility 1 is over-reach by some future president. Rather than sticking to wiping out

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 11 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

foreigners with funny names that no-one has ever heard of, he'll conclude that lifewould be much simpler if he had someone wipe out Tom Becks, the uppity preacher ofCanterbury Road Church in San Marino. Or some nosy journalist. Or a judge whowon't do what he's told.

Possibility 2 would be a disagreement about who counts as an enemy of the state.There are few Muslims and Arabs among those in power in the US, but the US didn'thave much problem with *Irish* terrorists, and, well, there's *no such thing* as Israeliterrorism is there? It's hard (at least for me) to see any obvious path from the currenttargets of the three-minute hate to more popular groups; but I could see it happening.Perhaps China comes down unequivocally on the side of Iran, followed by most of therest of Asia?

Which will happen first? (1) is easier to understand, but would take a remarkably stupid and tone-deafpresident+support staff. (On the other hand, could I see someone like Palin orO'Donnell ordering it in a fit of pique? I guess so. On the third hand, I do not thinkPalin or O'Donnell could win the presidency --- they are too loathed. On the fourthhand, Palin was supposed to be VP to a guy that could have a heart attack tomorrow!On the fifth hand, he lost, and Palin was at least part of the reason for that lost.)

(2) relies on the behavior of the outside world, and that's even more difficult to predictthan what happens in the US. Resource shortages are going to lead to an angrier, lesspleasant world, with rather more US "you're with us or against us" screaming at thetop of the lungs, and one after another, China, then India, then Europe, are going tolose patience, very publicly and obviously, with this.

SO: If I had to bet, my be would be that - US torture et al will be with us for quite some time (the rest of my lifetime) - the president will be smart enough NOT to use them against domestic opponents(and mission creep, like using the patriot act against copyright infringement will bekept at a low-enough level to generate little serious pushback)- the consensus will *eventually* collapse through taking things too widely in the "waragainst everyone outside the US who thinks THEY have the right to OUR oil (andcopper and uranium and transition metals and ...)"

But, to return to my point --- the way this will play out is how it threatens those withpower in the US, not based on claims of law, history, christian decency et al.

Reply September 27, 2010 at 02:18 PMWill said...Whom do we have to blame for this? Who was the chancellor at the time? Was itfricking Berdahl? I always knew there was something that was not right about that guy.

Reply September 27, 2010 at 05:21 PMGraydon said...Rule of law only works when people believe in it enough to find their kith and kinguilty when they are.

Once you get people believing in their wealth, and not the system of public good, well.The system crashes, because any political system means giving up direct benefit forindirect benefit. During that crash, people stop believing in the various core axioms ofthe system, because either what they are doing is very bad, or the axiom can't be right.

The US hegemony is busy collapsing; it is going unusually fast because the US hasspend a hundred years or so making a preponderance of terrible policy decisions based

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 12 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

on preferring capitalism to democracy. It's likely going unusually hard because there'sa terrible global crisis involved. Anyone in power with the intellectual attainmentsplausibly exceeding those of cabbage knows these things, if they can stand to be honestabout the subject.

That the ability -- in skill, treasure, and (still) time -- to fix the mess exists is obvious.That the requirement -- driven by technology as much as circumstances -- is to give upon having an upper class, to give up on the organizational and social legitimacy of the_idea_ of an upper class, is also pretty obvious. (Said upper class keeps making thesehorrible, horrible decisions, and they're not even _effective_ horrible decisions. Theless said about the decisions of those wanting into that upper class the better.)

Which puts me right solidly with Brad in "no hope"; I can't think of a single example ofan upper class deciding to stop being an upper class for the common good in the entirehistory of the world.

Reply September 27, 2010 at 06:03 PMLex said...Unfortunately, I'm with Prof. DeLong on this. This made me an unpopular Republicanduring the Bush regime and it has made me unpopular with Obama supporters givenHIS recent excesses (for which I called a while back for his impeachment and removalfrom office just as I did with Bush).

But, no, I think we've started down the road from which there is no returning.

The U.S. It was a really good idea.

Reply September 28, 2010 at 10:34 AMAnon. said in reply to Maynard Handley...Manynard Handley wrote: "Whether by design or accident, the US has constructed asystem that manages to allow many of the brightest to escape from the masses. Theydon't get to the upper echelons, for the most part, but they do get a mortgage and a job--- enough that it doesn't make sense to risk it all on violence and political extremism."

Um, have you been paying attention to the economic malpractice of the elites? Socialmobility is hitting new lows and the scenario you describe is becoming quite close toimpossible. Therefore, don't count the oppressed out.

As for your other two options, the Don Siegelman case shows that trumped-up chargesare now routinely used to suppress political opposition; I see no reason why anyRepublican would avoid adding assassinations to their arsenal. You're right that option(2) seems more likely to cause the outright collapse.

Reply September 30, 2010 at 02:08 AMComment below or sign in with TypePad Facebook Twitter and more...

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 13 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

Me: Economists:

PaulKrugmanMark ThomaCowen andTabarrokChinn andHamiltonBrad Setser

Juicebox

Mafia:

Ezra KleinMatthewYglesiasSpencerAckermanDanaGoldsteinDanFroomkin

Moral

Philosophers:

Hilzoy andFriendsCrookedTimber ofHumanityMarkKleiman andFriendsEricRauchwayand FriendsJohn Holboand Friends

Post Preview

Procrustean Economics (Wonkish)New York Times (blog) - Sep 30, 2010Brad DeLong manfully takes on the efforts of various commentators to define awaythe paradox of thrift and redefine our current problems as somehow wholly ...Related Articles » « Previous Next »

economics DeLong

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 14 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html

10/21/10 7:48 PMSocial Studies 50th Anniversary Symposium: Is There Hope for the Rule of Law in America? - Grasping Reality with Both Hands

Page 15 of 15http://delong.typepad.com/sdj/2010/09/social-studies-50th-anniversary-symposium-is-there-hope-for-the-rule-of-law-in-america.html