Jurisprudence and Governmentality

So the 1936 case, US v. Curtiss-Wright Corp, contains some real gems of fascist legal philosophy sewn amongst highly turgid references to other decisions and statutes. It helps to understand the current battle over the unified executive doctrine, however, so we’re stuck wading through Sutherland’s poorly-reasoned and poorly-written prose.

“Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.”

This is the problem of governmentality in a nutshell. As much as we would like sovereignty to inhere in the people, or to credit the dissolution of social contracts, there are those like Carl Schmitt or Justice Sutherland who ascribe sovereignty with the immortal metaphysical baggage of the Catholic soul. Yet this is also absurd: the Declaration’s authors had no authority to sever their allegiance to King George except what they gained from their power to represent the people. Moreover, that popular representation only gained validity after the conclusion of the Revolutionary War: had we lost to the Red Coats, we would say that the Declaration of Independence had no more validity than the imperial proclamations of Emperor Norton.

At one point, Sutherland cites the Preamble’s “…in order to form a more perfect union…” as proof that the unified states were merely perfecting the Articles of Confederation, which merely elaborated on the Declaration. By this argument, the states were never several or self-sufficient, and never had any hope of going it alone, legally. Yet he skips over the crucial first words: “We, the People of the United States, in order to form….” I can’t imagine a more spurious line of argument, mixing bad textualism with bad political theology.

Of course, this part of Curtiss-Wright may well be taken for dicta… not the Justice speaking as arbiter of the law regarding the substantial holding, but simply describing some personal opinions which have no bearing on the case. Perhaps this is true. But he follows it up with a paragraph that still counts as good law:

“Congressional legislation… must often accord to the President a degree of discretion and freedom from statutory restriction [in foreign matters] which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”

This is what is going trip up Feingold’s resolution, I suspect. This is not a legal question, his bipartisan opponents will argue, but a practical one. Only the Executive has the necessary knowledge of matters of national security, and, echoing Schmitt: “The sovereign is he who decides on the exception.” In this way, the President’s supporters seek to sidestep the legal question. He cannot give up the power to torture, or to surveil the nation’s enemies, both foreign and domestic, since this would be to abrogate his duties as Commander-in Chief. Overzealously? Perhaps… but not censure-worthy.

Yet by acting against the explicit will of the legislator, as he does on matters of torture and domestic surveillance, the executive finds “his power is at its lowest ebb.” This was the pronouncement of Justice Jackson in Youngstown Co. V. Sawyer. He goes on to argue that powers delegated to the President as C-in-C ought notto be universally “advanced as support for any presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy.”

Jackson goes on to say:

“No doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”

Thank you! What better expression of the problem of an executive whose decisions could potentially arrogate infinite sovereignty to himself and his deputies? This is the problem par excellence. Sadly, it comes as a concurring opinion in a long line of concurrences… as easily ignored as Sutherland’s zany ramblings about George III and the monarchy of FDR.

As others have pointed out, it would be difficult to bring a lawsuit against the Executive anyhow. With the NSA wiretapping, no one could be shown to have suffered an injury, and with torture… well, those people don’t generally get out alive. This is the problem of indefinite detention decided for the government in Hamdi v. Rumsfeld:

“If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.”

We’re left with shaky checks on the madness of our own Kings, George or otherwise.