Practicalities v. principles: the prime Beltway affliction

Constitutional guarantees and the rule of law were not intended to be subject to "practical considerations."

By Glenn Greenwald
July 30, 2009 4:31PM (UTC)
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As I briefly noted yesterday, Michael Massing wrote a lengthy analysis of online journalism and blogs for the newest issue of The New York Review of Books.  In general, his article is much more reasonable, thoughtful, informed and insightful than the standard establishment journalism piece on this topic.  But one criticism he offers is worth examining further because it reflects a pervasive and destructive Beltway belief.

Massing examines the work of several online journalists and commentators and is largely complimentary of the blogosphere ["a remarkable amount of original, exciting, and creative (if also chaotic and maddening) material has appeared on the Internet. The practice of journalism, far from being leeched by the Web, is being reinvented there, with a variety of fascinating experiments in the gathering, presentation, and delivery of news. And unless the editors and executives at our top papers begin to take note, they will hasten their own demise."].  He's also largely complimentary of what I do here ("The bloggers I have been reading reject such reflexive attempts at 'balance,' and it's their willingness to dispense with such conventions that makes the blogosphere a lively and bracing place. This is nowhere more apparent than in the work of Glenn Greenwald"; "Greenwald offers a single daily essay of two thousand to three thousand words. In each, he draws on extensive research, amasses a daunting array of facts"; "In so vigilantly watching over the press, Greenwald has performed an invaluable service").


But Massing then strangely undermines his lengthy, emphatic condemnation of "reflexive balance" with this paragraph that appears to celebrate and demand exactly that:

But [Greenwald's] posts have a downside. Absorbing the full force of his arguments and dutifully following his corroborating links, I felt myself drawn into an ideological wind tunnel, with the relentless gusts of opinion and analysis gradually wearing me down. After reading his harsh denunciations of Obama's decision not to release the latest batch of torture photos, I began to lose sight of the persuasive arguments that other commentators have made in support of the President's position. As well-argued and provocative as I found many of Greenwald's postings, they often seem oblivious to the practical considerations policymakers must contend with.

As I noted yesterday, Brad DeLong -- and his commenters -- expertly illustrate the incoherent aspects of this claim.  But since Massing's comment reflects the common Beltway mentality -- it is highly redolent, for instance, of Chuck Todd's claim that insistence on the rule of law makes sense only "from 30,000 feet" and "in a perfect world," but is not grounded in "the realistic view of how this town works" -- I want to elaborate on one point that I think is vital.

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By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions.  But not all political questions were to be subject to that process.  Some were intended to be immunized from those influences.  Those were called "principles," or "rights," or "guarantees" -- and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what Massing calls "the practical considerations policymakers must contend with."

We don't have to guess what those principles are.  The Founders created documents -- principally the Constitution -- which had as their purpose enumerating the principles that were to be immunized from such "practical considerations."  All one has to do in order to understand their supreme status is to understand the core principle of Constitutional guarantees:  no acts of Government can conflict with these principles or violate them for any reason.  And all one has to do to appreciate their absolute, unyielding essence is to read how they're written:  The President "shall take Care that the Laws be faithfully executed."  "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." "Congress shall make no law . . . abridging the freedom of speech."  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause."  "No person shall be . . . deprived of life, liberty, or property, without due process of law."  Even policies which enjoy majoritarian support and ample "practical" justification will be invalid -- nullified -- if they violate those guarantees.

Consider how Thomas Paine described the rule of law and the presidential obligation to obey the law and be subject to it.  Does this sound like it was supposed to be waived whenever "the practical considerations policymakers must contend with" made it convenient to do so?


But where says some is the king of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king.  For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.

Those principles are absolute and unyielding by their nature.  Garden-variety political questions -- what should be the highest tax rate?  what kind of health care policy should the government adopt? to what extent should the government regulate private industry? -- are ones intended to be driven by "the practical considerations policymakers must contend with."  But questions about our basic liberties and core premises of our government -- presidential adherence to the law, providing due process before sticking people in cages, spying on Americans only with probable cause search warrants, treating all citizens including high political officials equally under the law -- are supposed to be immune from such "practical" and ephemeral influences.  Those principles, by definition, prevail in undiluted form regardless of public opinion and regardless of the "practical" needs of political officials.  That should not be controversial; that is the central republican premise for how our political system was designed.

But the mentality reflected by Massing's view -- there are no "principles"; everything must give way to "practical considerations" of Washington officials -- is precisely what has become so rampant and is what accounts for most of the lawlessness and corruption in our political class.  Instead of "the President shall take Care that the Laws be faithfully executed," we have: "Presidents should try to obey the law except when they decree there are good reasons to violate it."  Instead of "in America the law is king," we have: "we can only apply the law when it won't undermine bipartisanship."  Instead of "treaties shall be the supreme Law of the Land," we have:  "we can't have torture prosecutions because they'll distract from health care."  To "no Warrants shall issue, but upon probable cause" and "No person shall be . . . deprived of life, liberty, or property, without due process of law," we have added:  "unless there are Terrorists who want to harm us, in which case we spy without warrants and imprison people for life without charges."


The standard Beltway mindset doesn't recognize principles or the validity of Constitutional guarantees.  People who believe in those things -- who take them seriously and think they should be applied independent of "practicalities" -- are naive extremists and ideologues.  But just read what those Constitutional provisions say:  it's not possible to believe in them without being what Joe Klein derisively called a "civil liberties extremist."  Constitutional guarantees and principles are, by their nature, extremist and absolute.

Relatedly, the Beltway mindset also doesn't recognize political controversies where only one side -- not two -- is right or is speaking factually.  There are many political disputes where there are two or more reasonable sides and where solutions can legitimately be shaped by political compromise and "practical considerations" -- by putting Arlen Specter and Susan Collins in a room with Ben Nelson and Olympia Snowe and arbitrarily dividing everything in the middle in order to attract bipartisan and "centrist" support.  But not all political questions are supposed to be resolved by that sort of randomly compromising horse-trading.  Yet the Washington mindset doesn't recognize any other type of political question; they think that all political matters, including ones grounded in Constitutional guarantees and the rule of law, must be subjected to that process of dilution.

I tend to focus on political issues involving Constitutional principles ("the President shall take Care that the Laws be faithfully executed") that weren't intended to be diluted by such concerns, and on issues were there is only one, not two, reasonable sides ("when the law says that eavesdropping on Americans without warrants is a felony and the President gets caught doing exactly that, he has committed crimes and should be treated like all other citizens who commit crimes" -- "torture is both wrong and illegal" -- "war crimes shouldn't be covered-up or shielded from judicial review with secrecy claims").  Waiving Constitutional guarantees in the name of "practical considerations" is an extreme and damaging vice, as is pretending that factually false claims are entitled to respect in order to appear more reasonable, thoughtful and balanced or to adhere to senseless, soul-draining journalistic conventions.  


A related Beltway affliction reflected here is the inability to distinguish between (a) recognizing conventions and (b) criticizing and rejecting them as flawed.  Yesterday, Matt Yglesias noted that journalists -- when criticized for their work -- often defend what they do by pointing to media conventions in order to explain the reasons it's done that way, when the whole point of the criticism is that those conventions are flawed and shouldn't be adhered to (emphasis his):

What the audience wants isn’t an explanation but a justification of the media’s conduct.  Typically, though, press figures when faced with a specific complaint will wave the complaint off by noting that the output in question was generated according to the prevailing conventions. The question, however, is whether the conventions are producing decent results.

I frequently hear journalists complain that Media Matters or Glenn Greenwald "doesn’t understand how the press works." Which is probably true.  But the point is not to understand the details of how it works but to ask whether or not it’s working well.

I'm fully aware of what the Washington conventions are that lead to rampant lawlessness and corruption, and have become aware of media conventions that enable such behavior.  I don't criticize standard Washington behavior because -- as Massing put it -- I'm "oblivious" to those conventions.  It's that I think those conventions are radically flawed and twisted and ought to be smashed.

Dispensing with core Constitutional principles in the name of "practical considerations" -- and treating ludicrous, bad faith claims with respect -- creates a facade of reasonableness.  But there's nothing reasonable about it.  It's intellectually barren and, worse, is the prime enabler for why our political leaders stray so far and so frequently from those principles.  It's why they break the law with impunity and know they can.  The Bill of Rights and the rule of law aren't like modifications to the tax code or compromises over the stimulus package.  They're in a fundamentally different category.  The failure to recognize that category is a defining attribute of the Beltway sickness and is a prime reason why Washington so frequently degrades and destroys whatever it touches.

Glenn Greenwald

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