THE BOTTOMLESS VAT OF POWERS: WHO OWNS IT?

Whence comes the asserted power of the current President and his new Sicherheitsdienst to inspect, search, spindle, mutilate, etc., everything and everyone found within the generous bounds of their authority? Leave aside the claim of these people that US law prevails, or ought to prevail, everywhere in the galaxy, and just focus on the "internal" claim to do all these things within the allotted boundaries of the United States. Okay, where does the power come from?

Perhaps it is inherent in some vast array of powers referred to as "the executive power"? Partisans of Congress would deny this. Does it come from Congress, then? That answer just shoves the question back a step: Where would Congress get such a power?

Well, perhaps the 18th-century grocery list gives this power to Congress or the President – that could be sorted out later, if such a power really exists. Perhaps such a power is part of "the war power," whatever that might be. Perhaps the powers for which we are searching can simply be deduced from theories of sovereignty.

One of Mr. Lincoln's critics, Benjamin Robbins Curtis, treated some of these issues in 1862. Curtis complained that Lincoln sought "to extend martial law over the whole territory of the United States; a power, for the exercise of which by the President, there is no warrant whatsoever in the Constitution; a power which no free people could confer upon an executive officer, and remain a free people. For it would make him the absolute master of their lives, their liberties, and their property, with power to delegate his mastership to his satraps as he might select, or as might be imposed on his credulity, or his fears.(1)

Unfortunately, Curtis concedes that Congress could, in time of war, authorize many of the things about which he complains, in which case, one would think, Congress and its satraps would become "the absolute master of the [people's] lives," liberties, and property. It is hard to see why this would be superior to having Lincoln do such things, unless there is a great advantage in having a few hundred masters rather than one. There may be a difference, but it does not seem to go to the heart of things.

This is not the place to treat in detail interesting questions such as whether or not there is any good reason to believe in "the war power" – at all; whether or not there is any convincing reason to deduce them from the Constitution or from theories of sovereignty; and, whether or not in the last case, there is any good reason for believing in some kind of boundless, indefinable sovereignty inhering in, or exercised by, the government. All these claims are remarkably unsatisfactory, but I leave them to one side, for now. Let us pretend that good arguments exist, or that people will acquiesce in bad ones, and have look at how the powers under consideration can, as a practical matter, be deployed.

SURVEILLANCE AS A STATE 'COMMAND POST'

In Man, Economy, and State, the late Murray Rothbard introduced the very useful concept of "command posts," that is, key points of leverage that states control in order to dominate natural society. Among these are the money supply, roads, communications, and education.(2) Keeping track of more and more things, persons, and actions – in a word, surveillance – is another important aspect of state power, another command post, so to speak.

For general spying and snooping (I'm sorry, "surveillance,") we may turn to the sociologist Anthony Giddens, who has written that "[t]he expansion of surveillance in the modern political order, in combination with the policing of 'deviance,' radically transforms the relation between state authority and the governed population, compared with traditional states. Administrative power now increasingly enters into the minutiae of daily life and the most intimate of personal actions and relationships."

As a social democrat, Giddens necessarily approves of surveillance undertaken in aid of social welfare programs. As he notes, "[s]urveillance is the necessary condition of the administrative power of states, whatever ends this power be turned to."(3)

Even if some of the ends of keeping track of everything and everyone are worthy, or at least benign, in Giddens's view, he concedes that, "surveillance (in its various forms and aspects) must be regarded as an independent source of power, maximized in the modern state…." Giddens was undertaking his self-emancipation from Marxism, when he wrote the book from which I am quoting, and this last comment shows how far he had come. No longer were "capitalism" or "the bourgeoisie" lurking behind the state, making it do bad things, that otherwise would not be done.

States, as such, were now seen to have power, to desire more power, and knowingly to accumulate more power. In other words, Giddens had stumbled upon the irrelevance of much of the Marxist theory of the state.(4) As he writes: "Whether we like it or not, tendencies toward totalitarian power are as distinctive a feature of our epoch as is industrialized war."(5)

WE'RE NOT TOO SHOCKED AROUND HERE

Those of us who took autonomous state power seriously are not surprised at recent developments. Even the mildest and most conciliatory quasi-libertarian knows that police agencies have never liked the Bill of Rights. It is not surprising that we are now seeing yet another well-orchestrated campaign either to abolish those rights or to explain them away with frivolous rationalizations.

One that has been going around lately is so old, it has mould on it: "The Bill of Rights is not a suicide pact." Well, no indeed, it's a Bill of Rights. If the rights are not enforceable, or only exist in "peace time," then the "rights" are not really rights, and the Bill of Rights is a standing joke. I think this is the real view of those who speak of suicide pacts.

On their view, however, living under the US government, as presently framed, is already a suicide pact. After all, on the received liberal-centrist-conservative (both meso- and neo-conservative) theory, the power of government becomes infinite in wartime. Happily, we get back all of our liberties, such as they are on this theory, the very second the "emergency" is over.

Exposing this theory to the bright light of day, we find that: 1. It is easy to erode and smudge the difference between war and peace. After all, what was the Cold War? 2. Governments have great leeway for finding potential wars in which to be involved. 3. Now we add the axiom that, governments like to wield power and wish like to increase their power. Thus, the conventional theory comes to this:

An institution that has an incentive to find wars and the capacity to find wars is likely to go around finding wars and expanding its powers. If the "war" could be permanent, the bottomless powers would go on forever and the so-called "rights" would never need to be "returned."

Hence the "war" on terror, the war on sin, the war on gravity, the war on insensitivity – the possibilities are many.

The Oberkommando of the Sicherheitsbüro has just announced their need for even more power. Of course they need more power! And they will need more tomorrow, next week, next year, and so on. They will probably get it.

The pretended interpreters of a defunct Constitution ask us to believe that, the very people who can best increase their own power through war, and who are free to conjure up wars, will refrain from so doing – out of what, a deep concern about the moral hazard?

At this moment, Terry Gilliam's film Brazil is more and more a useful tool of social analysis and prediction. Between showings of that film, perhaps we can take some time to consider whether or not the whole received theory of our Constitution (as summarized above) is hopelessly flawed and ought to be detained for questioning. Send the theory, and maybe the Constitution, too, to Guantanamo.

We're not using the Constitution much ourselves, these days, and Fidel might learn something from it, should he drop by to complain that the US is filling up one end of the island he rules with certified dangerous actors.

Notes

1. Benjamin Robbins Curtis, Executive Power (Boston: Little, Brown & Co., 1862 [reprint: Crown Rights Books, Dahlonega, Georgia, n.d.]), p. 30.

2. Murray N. Rothbard, Man, Economy, and State, II (Auburn, AL: Ludwig von Mises Institute, 1993), pp. 826-827.

3. Anthony Giddens, The Nation-State and Violence (Cambridge, UK: Polity Press, 1985), pp. 309.

4. See Joseph R. Stromberg, "Toward an Autopsy of the Marxist Theory of the State," Telos, 119 (Spring 2001), pp. 115-138.

5. Giddens, p. 310. This would seem to be quite true, even if conventional 1950s and '60s theories of "totalitarianism" amounted perhaps to a Cold War liberal maneuver rather, than serious social theory.