Soft Tyranny

After the Sept. 11 attacks, the rather inane witticism that “the constitution is not a suicide pact” became an article of broad bi-partisan consensus, and the foundation for the most controversial aspects of the War on Terror. Now, progressive forces in the United States and in Canada are employing similar language in its profligate gum-flapping over the Great Depression, and their “New-New Deal.” With any luck, the so-called Western liberal democracies will drift even further into “soft tyranny”; the state of hopelessness elucidated by Alexis de Tocqueville in Democracy in America.
According to Tocqueville, a “soft tyranny” arises in a situation of national emergency when the citizenry loses faith in the capacity of democratic institutions to produce a better future. In these moments, people forget their Goethe and strike a Mephistophelian bargain; perhaps, by granting the chancellorship to a failed painter named Adolph with pretensions of racial supremacy. Like Faust though, these peoples are eventually forced to pay the Devil his due.
The people of the United States experienced such a crisis when United Airlines Flight 175 ploughed into the South Tower of the World Trade Center. And, most of the actions taken in response by the Bush administration have been legitimate. While the Comintern alumni at Daily Kos would likely disagree, the “enemy combatants” held at Guantanamo Bay are actually not protected by the Geneva Conventions under international law. To be classified as a “prisoner of war,” under the language of the treaty, you must be captured wearing the uniform of a recognized belligerent. Al Qaeda is neither uniformed nor a recognized belligerent. With that said, the “soft torture” of terror suspects, the warrantless wire-tapping of American citizens by “National Security Letter” under the USA PATRIOT Act, and the attorney general’s power to indefinitely detain foreign aliens were all unjustifiable excesses.
Travesties of this magnitude are not unprecedented. Regardless of the fact that it has no legislative override comparable to Canada’s “Notwithstanding Clause,” the American constitution has been vulnerable to failures of moral courage in every age and under every party. As early as 1861, Abraham Lincoln employed an illegal executive order and suspended habeas corpus to aid his prosecution of the American Civil War. In 1917, the United States Congress passed the Sedition Act, which restricted the freedom of movement and speech of Communist sympathizers for the remainder of World War I. And, after the bombing of Pearl Harbour, over 100,000 Japanese-Americans were confined to concentration camps by the Roosevelt administration to wait out World War II.
Thomas Jefferson, the principle author of the Declaration of Independence, was aware of this inherent vulnerability from the republic’s outset. In a rather famous letter, he puzzled over how the United States could “preserve its liberties, if its rulers are not warned from time to time, that [its] people preserve the spirit of resistance?” Over the first 150 years of American history, the Supreme Court served, by and large, as a check against challenges to the Jeffersonian absolutist reading of the constitution.
In the modern period, however, prominent legal philosophers have increasingly rejected legal absolutism in the articulation of jurisprudence. Writing the dissenting opinion in Terminiello v. City of Chicago, in 1949, Justice Robert H. Jackson warned that the Supreme Court’s application of doctrinaire logic, with respect to civil liberties, risked converting “the Bill of Rights into a suicide pact.” One wonders whether he’d prefer it as just another ink-riddled manuscript. That way Congress or the president could abridge the constitution so as to enforce peace, order, and good government in the face of any nebulously defined “anarchy.” Unsurprisingly, the “suicide pact” trope continues to serve as a rhetorical shibboleth for those who advocate the circumscription of liberty, and the rise of benign Statism.
Nowadays, the Keynesian left-wing of the Democratic party frequently evokes it to justify a redux of Franklin Roosevelt’s New Deal. As an aside, it might be mentioned that a “New New-Deal,” as Nobel-laureate Paul Krugman called it, is not anymore likely than its Depression-era predecessor to resuscitate the credit-crisis stricken economy. Columnist George Will recently noted that by 1939, six years after the first reforms were implemented, the rate of unemployment in the United States had actually risen to 17.2 per cent.
What most people don’t realize, however, is that many of Roosevelt’s reforms, like the wage and price controls of the National Recovery Administration (NRA), were originally struck down by the Supreme Court. Many of the proposed regulations of the “New New-Deal” are equally worthy of judicial challenge: consider how George Soros, a philanthropist and noted progressive, is lobbying in favour of “forcefully changing the terms of contracts ex post facto” despite his admission that “this is actually unconstitutional.” Consider the implications of the new California State law, requiring margarines, cooking oils, and shortening to contain less than half a gram of trans-fats per serving. Consider the calls for “eco-friendly conditions” to be attached to the federal bailout of the automotive industry. Consider the proposed Card Check Bill which would abolish the secret ballot in votes on union organization.
Imagine if the United States Department of Commerce had the power to abrogate contracts, control dietary intake and car design, or brow-beat whole industries into unionization. Imagine if the Department of Homeland Security could record your phone calls, Internet usage, and financial statements on a whim. When neither major party can honestly claim to be a defender of the people’s freedoms, the emergence of Tocqueville’s “soft tyranny” is a foregone conclusion.