What follows was posted up as a final addendum to the FOIA-ACLU post below; I’ve been urged to put it up as a separate post. I’ve hesitated to do so, partly because I think it will leave numbers of people thinking, perhaps correctly, that its political heat is excessive – and also because, due to various schedules, I’ve written at high-professor speed – no time to amend, edit, or make comprehensible. Apologies on both counts. I think there’s something of value here, even badly expressed. I’m leaving the comments off, however, as I would not have a chance to moderate or even read them.
With reference to what a number of commenters have said differentiating between collect information and collecting information on individuals. I will simply say in all candor that I do not understand that there is a meaningful difference between citizens reporting “rumors” and such in the abstract to the White House email address, and reporting on fellow citizens. It has been a theme of many of the comments, and with all respect, I think it is a difference without a distinction. Certainly it is the sort of distinction that civil libertarians have long rejected, as a matter of principle.
The principle, however, is not precisely the one that the commentators seem to be saying. Commenters on this thread, at least, seem to be taking the view that you treat everything the administration is doing in good faith so that unless someone presents evidence of – well, I’m not clear what for many of our commenters would actually count as something, but let’s say something that would cross the line. Short of presenting evidence of that, good faith requires that we trust the government. Other commenters naturally take the opposite view and claim that the administration acts per se in bad faith.
The American constitutional tradition, I suggest, is quite different from either – and consists of two not entirely consistent strands. First, it consists in not trusting the government. The freeborn citizens of this country have zero obligation to accept the government’s claims that it collects information or does much of anything else in good faith; the government has the obligation, as a general presumption – it can be answered, yes, but still a presumption of popular democracy – that it, not the citizens, has to account. We honor that ornery, recalcitrant position not because we think it is always right, but because it is a considerable bulwark, procedural as well as cultural, against tyranny. That’s why, crazy as I personally happened to think the left was acting during much of the Bush years, there was a certain abstract honor in it. But – and this is the crucial but – only as long as you are willing to grant the same to the other side in the alternation of power.
The second is a constitutional tradition of doing the opposite of what I just stated above. One way of defining the role of ‘His Majesty’s Loyal Opposition’, to express it anachronistically, is to say that it expresses its views, not by taking the majority’s positions as being in good faith – but in ‘suspending public disbelief’ in the bad faith of the majority.
Yes, that’s a mouthful – and it is an even more difficult balancing act. Why? It requires acting as though one takes the majority’s policies, proposals, etc., not in bad faith – which, however, is not quite the same thing as taking them in good faith, or even as though in good faith. There are subtle differences in affect, attitude and action as among these. But the problem of the loyal opposition is to walk as far as it can disagreeing with the majority’s preferred policy, while still accepting that it is offered in good faith.
Yet at some point, it might not be able to do so – in which case, well, see the first, above. It won’t be possible to give an a priori rule telling one when that point, in good faith of its own, has been reached, alas. Hence many political battles of the kind we are seeing over claims of good and bad faith. But the essential line is not really between good faith and bad faith – it is when the loyal opposition should drop a certain public presumption of good faith, whether it actually believes it or not. This public presumption matters because it goes to the fundamental public-private divide – the fact that we sometimes properly act in public in ways that are not what we privately believe – upon which liberal democracy is premised. On the matters of policy substance – raise taxes, lower taxes, even go to war, not go to war, etc. – the dropping of that presumption should be regarded as a very drastic step. It has not been so treated, by either party, regrettably, in recent opposition dealings during the past several administrations.
However, one thing that the loyal opposition is always right to insist upon is that the ‘traditions of process’ be observed punctiliously – because those are the traditions of office by which the majority governs and to which the minority aspires, the traditions by which there is a political community and not simply contending factions. The office, including its sacralization and legitimation through those traditions of process, is greater than either.
Again, to be blunt, however, the current administration does not seem to regard the office as greater than it. At least not in its current behavior, or up to this still early point of less than a year in office. One presumes things will change. But, for the moment, the seeming dispensability of traditions by which the office is understood by ordinary people to be honored – or dishonored. The honor of the office includes, in my view, that the office of the President of the United States not ask one group of loyal citizens to inform on the indisputedly lawful, constitutionally protected speech-activities (even if you think there’s a difference between that and the citizens themselves, which I don’t) of another group of loyal citizens. The president of the United States has treated the constitutional speech of citizens as – phrasing here is important, and it is not the equivalent of “the same as” – not sufficiently distinguishable from asking citizens to be on the lookout for suspicious activities that might turn out to be perfectly legal, but might turn out to be a bomb on an airplane, but in which there is a legitimate question of sifting for possible grave and violent criminality.
We don’t really like it in the latter case – and shouldn’t – but accept some part of it, even while arguing over its extent, because it is related to a function of government to protect the physical security of the commonweal against mass criminal violence, mass terrorism, etc. In the current situation, however, there is no question of criminality or the need to have a suspicion thereof. The speech is all constitutionally protected, and so even that reason of state, and not simply the desires of a political administration, is quite absent.
Why such a blunder over something that, at least if one is minimally attuned to the traditions of the office, is fairly obvious? At risk of giving great offense to many friends and correspondents, the current administration seems curiously to believe that it honors the office, rather the other way around. Moreover, the presence of – once again, so many friends and colleagues and correspondents, so risking offense – so many luminous and glittering intellectuals does not help the administration to find a certain humility in the mere office of the presidency. I imagine one reason is that a not-insignificant number do not especially see the office as having any special moral standing, compared, they would say, to a more just and universal institution of governance. A certain form of cosmopolitanism risks blinding one to the nuance of actual political communities, and to confuse their constitutive political elements with their mere politics.
Nor does it help matters that the prevailing intellectual (as distinguished from the prevailing strictly political, which is distinct and frankly deeply unattractive, at least to a large number of people on the outside) mood within the administration is one of pragmatism. Mere ordinary people will tend to believe that pragmatism is essentially a synonym for “moderate.” It was part of the basis on which the Obama administration was elected – pragmatic moderates who would rule through the virtues of technocracy.
But pragmatism as a political philosophy in this case is not strictly a matter of devotion to moderation. It might be. But then it might not. As a political program, it can have the virtue of lowering the affective temperatures of politics – as happened, for example, in the generation in Scotland following the civil wars, for whom pragmatic, technocratic language (“and now, a Report on the types and numbers of cattle in Certain Highland Villages”) offered a neutral language out of the wars of religion. But pragmatism is not essentially moderate or immoderate; pragmatism is essentially unconstrained except by its own calculations of a remarkably reductionist moral psychology, which is both its virtue and vice. It arises out of certain versions of utilitarianism, and in that consideration, such things as the embodiment of rights within a political tradition means something very different from what ordinary people might have thought.
This is equally a problem of pragmatists of the left and right, to be sure. But it is the pragmatism of the left that currently governs. Pragmatism in pursuit of ends that technocrats in majoritarian power have determined to be welfare maximizing has license to be radical and not always moderate, if that is what it takes. What matters are the costs on the other side. At this very moment, however, it might say, considerable numbers of people appear to have drawn from that a need to raise those costs across the country: and yet the pragmatists would be right in substance but wrong as to what people think they are doing. They think they are exercising their rights to speak and force their political representatives – not rulers – to hear them. Pragmatism’s virtue is its pursuit of sense. The problem, however, is that a democratic polity consists partly of technocratic sense, but also of sensibility and that sensibility is embedded primarily in its traditions of process.
(Look, I do understand entirely that half the readers are yawning because this is all so obvious – whereas the other half simply lack the receptors for the kinds of moral distinctions I am suggesting; it is as though, cribbing William James, I were trying to convert them to the gods of the Aztecs. The whole debate and all these distinctions don’t register, just as certain things quite fail to register with me, such as the distinction between collecting information on what one’s fellow citizens are saying but not collecting information on them. We try through mechanisms of cultural assimilation to prevent those gaps from growing too large, and in our public life, we properly try and rely upon the suspension of public disbelief about the good faith of the other. When those run out of grip upon us, we have a big problem.)
See Burke on all of this, but particularly on his notion of the sublime, to grasp his moral psychology prior to reaching to his (often quite inconsistent) politics. There are subtle differences of sensibility in a democratic polity that the prevailing rationalist, reductionist pragmatism fails to capture, because it insists that all debates are over sense, rather than sensibility. (See also, a trifle weirdly, my post below about girls and college admissions, and how Austen no longer counts; fuse it with this one to grasp why the de-emphasis on Austen, and by extension the inability to use a language of politics to express a view on sensibility as well as sense is a way in which the intellectual class denudes our political language of the subtlety necessary to capture even the concept of a “loyal opposition” in a democracy.) La trahison des New Class? Yeah, something like it.
I leave everyone else to sort it out, as I am going offline. I am sorry if I offend a sizable number of people with this addendum. I’m also sorry that it sounds like what it is – a professor writing at high speed; I don’t have time to go back and amend or edit. But my general view of this is captured by Peggy Noonan’s weekend column and likewise, even more strongly if possible, a passing remark of hers a week or so ago in a WSJ column, to the effect that we need to revive the category and analysis of the New Class. Amen to that. Agree with her or not; she’s eloquent and clear – even if I’m not.
But most damagingly to political civility, and even our political tradition, was the new White House email address to which citizens are asked to report instances of “disinformation” in the health-care debate: If you receive an email or see something on the Web about health-care reform that seems “fishy,” you can send it to email@example.com. The White House said it was merely trying to fight “intentionally misleading” information.
Sen. John Cornyn of Texas on Wednesday wrote to the president saying he feared that citizens’ engagement could be “chilled” by the effort. He’s right, it could. He also accused the White House of compiling an “enemies list.” If so, they’re being awfully public about it, but as Byron York at the Washington Examiner pointed, the emails collected could become a “dissident database.”
All of this is unnecessarily and unhelpfully divisive and provocative. They are mocking and menacing concerned citizens. This only makes a hot situation hotter. Is this what the president wants? It couldn’t be. But then in an odd way he sometimes seems not to have fully absorbed the awesome stature of his office. You really, if you’re president, can’t call an individual American stupid, if for no other reason than that you’re too big. You cannot allow your allies to call people protesting a health-care plan “extremists” and “right wing,” or bought, or Nazi-like, either. They’re citizens. They’re concerned. They deserve respect.