June 22, 2004

That Calabresi remark about Hitler and Mussolini.

Prof. Yin invites me to comment on "Judge Calabresi's intemperate remarks" at an American Constitution Society convention (paraphrased as "President Bush’s rise to power was similar to the accession of dictators such as Mussolini and Hitler"). He says he's asking me because I've written before about wanting rational, civil public discourse and because I have not come out in favor of either candidate--I'm genuinely undecided. I kind of think he's asking for my opinion partly because I asked for his opinion of the "Joe Schmo Show," which seems so much more frivolous.

You might well wonder why I didn't jump at the Calabresi remark before. Maybe it's because I've gotten used to hearing remarks like it. I've certainly heard lawprofs (and Calabresi was a lawprof) call Bush a "war criminal." I've posted a photograph I took of a flyer seen around campus showing Ashcroft with a Hitler mustache. And certainly when Bush v. Gore came out, I heard endless denouncements of it from lawprofs who were really exercised about it in a way that struck me as unhinged or that would have struck me as unhinged if I weren't already used to hearing people heating up the atmosphere with passion and anger but still continuing to do the conventional law school work in a competent, sensible way. I don't like it, but I'm pretty jaded about it. Like Prof. Yin, I think that style of argument (like the Moore style of documentary) appeals to people who are already committed to your side and makes other people not want to listen to you at all. People interested in rational arguments will choose not to engage with you, which you might wrongly read as agreement, leading you to become complacent about the correctness and persuasiveness of your beliefs. But you miss the opportunity to persuade people who don't already agree and you lose touch with how they think about things. You may wind up thinking that people who don't agree with you must be ignorant or ill-willed. Now you're in the end stage where you're calling people stupid and fascist.

Was there any sense to the larger point Judge Calabresi was making? Shorn of overstatement, his point (as I can gather it from the news article) is: since Bush barely made it into office, he ought to have been especially restrained in his exercise of power; Bush has nevertheless acted quite boldly, in a manner similar to FDR, who was elected by a wide margin; therefore, everyone, regardless of their usual political preferences, should want to defeat Bush in order reassert democracy. Let's think about this argument in light of 9/11. Should Bush have said, I'm sorry, but since the election that led to my Presidency ended in a dead heat, I need to acknowledge the principles of democracy by acting with restraint? The election was in fact a dead heat, but there could only be one President. The process ended with Bush holding the office, and at that point he was bound to shoulder the great responsibilities of the office. Democracy doesn't demand that the power of the Presidency rise and fall with the margin of victory. That would be quite dangerous. I could see arguing that Bush had a special responsibility to seek bipartisan support, but it seems to me that he got that support for the two wars, the Patriot Act, and so forth. Yet even if he hadn't, if he had determined that bold action was required in spite of partisan opposition, and he acted boldly, he would not deserve to be voted out of office for subverting the principles of democracy, only to be criticized for not doing a better job of obtaining bipartisan support, which would be an appropriate factor in anyone's decision to vote to reelect him. It makes little or no sense to impose some sort of special punishment in the name of democracy, based on what happened in the past, because there's nothing more democratic than voting for the candidate who is most likely to do what is best in the coming Presidential term.

I can't help thinking that Judge Calabresi and his American Constitution Society audience would not have taken the same position about Presidential power if the election had fallen out the other way and Gore had become President.

UPDATE: My response to the judge's apology appears here.

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