Thursday, January 26, 2006

Immature Dissent On Display

Georgetown University Law Center recently hosted a speech by Attorney General Alberto Gonzales in which he defended the controversial NSA wiretapping of American citizen's phone calls with Al Qaeda members. The actual speech and the panel debate that followed were considered and informative. They gave an encouraging impression of Georgetown's commitment to discussing difficult issues in a mature, thoughtful manner. In stark contrast, the student protest during the Gonzales speech was an immature intellectual spasm that did nothing more than embarrass the Georgetown Law student body on a national stage.

It may seem cliché that as the president of the Georgetown Law Center Federalist Society, I would respond negatively to a protest by liberal students against George W. Bush’s Attorney General. On the other hand, I do not support much of the Bush administration’s conduct in the war on terror. For the last year and a half I have worked for Georgetown Professor Neal Katyal on the Hamdan case, challenging Bush’s use of military tribunals at Guantanamo Bay. I also probably agree with the protestors that the Bush administration’s actions in this warrant-less wiretapping are a violation of the Foreign Intelligence Surveillance Act- and maybe the Fourth Amendment.

My agreement with the protestors’ underlying policy position only increases my dismay at their conduct. By standing with their backs to Alberto Gonzales, by holding up a sign with a misquoted Benjamin Franklin statement (which decorously labeled a “paraphrase”), by stomping out like petulant children with their black hoods on - the students embarrassed themselves, their cause, and the Law Center. Rather than showing Georgetown Law as a school where different opinions are respected - they made it seem like a place where people have made up their minds and will turn their backs on anyone who dares disagree.

Merely disagreeing with the administration does not give good reason to act disrespectfully. The school invited Judge Gonzales as a guest to our campus and he addressed us on one of the most pressing issues of the day. Many students do not agree with what he had to say- that is unexceptional. The school regularly brings left-leaning speakers to campus with whom I strongly disagree. When those speakers come, I listen respectfully and then challenge them on the facts and on the law. That is the mature and rational approach that we have been taught in Georgetown Law classrooms. We have not been taught to turn our backs and walk out of speeches simply because we do not like the message.

One question really bothered me after I saw the protest- what reasons could lead otherwise intelligent people to act in this manner? My best guess is that there is a romantic/symbolic connection to the protests of the past- when brave dissidents fought against racism and a system that did not allow their voices to be heard. These modern protestors adopted the 1960s civil disobedience paradigm without understanding the predicates that made those protests necessary. They do not understand that the reason that people turn to civil disobedience is precisely because they cannot get the same respect that Gonzales willingly offered by coming to Georgetown and by having his speech rebutted by a panel that challenged and dissected his position after he spoke.

Consider what occurred here- the Attorney General of the United States came to a predominantly liberal/hostile law school to put the administration’s argument in front of the people- just as he should in a free, democratic country. As he spoke, he knew that the next voice would be perhaps the most articulate and powerful advocate of civil liberties in the United States today, Professor David Cole. This is how the system is supposed to work.

Professor Cole, perhaps out of loyalty-but also, I hope, a little out of embarrassment for the students- praised the protestors: “I am proud of the very civil, civil disobedience that was shown here today.” Unfortunately, there was nothing in these students’ conduct that should have made him proud. Cole sat on the stage, listened respectfully, responded carefully and convinced some listeners that his position was the correct one. The protestors convinced no one of their rightness of their cause. Their masked, martyr-like appearance, with their dramatic (if misquoted) poster contrasted poorly with the carefully parsing of the FISA statute and the arguments about the extent of the President’s Article II powers that the panel discussed after the walk out.

The protestors styled themselves as heirs of dissidents of the past- but no one wanted to drag them away, no one considered turning water hoses on them, no one tried to run over them with tanks- no one cared about their empty gesture. They were turning their backs and walking out of exactly the kind of event that all those protestors of the past were demanding- an open dialogue where the powerful had to come to them- a dialogue where they could voice their reasoned disagreement with the authorities’ conduct in front of their fellow citizens.

Of course, the protesting students were well within their rights to act as they did. It is their constitutional right to use their symbolic speech to disrespect the Attorney General, to embarrass Georgetown Law Center and to marginalize their own opinions. As a person who probably agrees with them on this issue and as a Georgetown Law student, I wish they had not done it. Not only did they trivialize their point of view, but they showed themselves as closed-minded, disrespectful and immature. It was not the image of Georgetown Law students I wanted broadcast on a national stage.

this article has also been published at watchblog


Scott said...

For a defense of the protest, see my friend the Scoplaw's post.

paleocon said...

If were Dean, they would have been taken to my office by security and expelled on the spot.

I suggest everyone who was embarrassed as I was to contact Dean Aleinikoff and express your disgust.

Oh, and I also don't support the Administration position.

D said...


First, make no mistake, AG Gonzales did not appear at Georgetown for an “actual speech and panel debate,” nor did Georgetown, by allowing Gonzales to speak, display its “commitment to discussing difficult issues in a mature, thoughtful manner.” Gonzales did not take part in any panel debate, nor did he take part in any discussion--either in a mature, thoughtful manner or otherwise.

Gonzales’ appearance was part of a public relations campaign put on by the Bush Administration in response to criticisms of the NSA program. Gonzales did not set out to present persuasive legal arguments in defense of the program (as would be appropriate at a law school), but instead began by talking about 9-11.

If you’ve disparaged the students’ intentions without talking to them, I suggest you talk to them to discern their particular motivations for protesting. I, like Professor Cole, am proud of the students who protested. They were not just turning their backs on Gonzales, but were perhaps voicing criticism of the fact that the Law Center was being used as a backdrop for a political P.R. campaign.

I think you give the Law Center too much credit when you speculate that it “invited Judge [sic] Gonzales as a guest to our campus.” It’s much more likely that someone in the Bush Administration called the Law Center, and the Law Center allowed him to come and speak.

One of the “left-leaning” speakers who’ve been invited to speak at the law school might be Bryan Stevenson, who spoke here a couple of years ago. The difference between that speech and the Gonzales affair? Stevenson took questions from students after he spoke, as opposed to being rushed out by security before any panel discussion or Q&A session could take place.

It is the case that Democratic Senators and others have held what essentially were P.R. speeches at the Law Center, but since I’ve been here they’ve always been sponsored not by the Law Center, but by student groups.

Let me offer you an alternative possibility to the ‘missing-the-60’s’ scenario you present, as to “what reasons could lead otherwise intelligent people to act in this manner.” Perhaps the students were horrified at a lawyer who has attempted to justify torture; perhaps the students were disappointed in a law school that would allow itself to be used in this manner; perhaps the students felt compelled to express condemnation for an Administration bent on acting illegally against both American citizens and others in the name of the “War on Terror.” There are a number of possible reasons that the students may have decided to protest, I seriously doubt that a pining for the days of fire hoses was among them.

Lastly, the students did anything but “trivialize their point.” In fact, their protest was a resounding success. National news coverage of the P.R. event almost without exception noted the protest. The Administration hoped that Georgetown students, like their Dean, would submissively allow the school to be used as a backdrop for a political P.R. event. Better luck next time.

-Dave Lane

Misha Tseytlin said...

David- the school just recently had Leahy do a PR announcement bashing Alito from the same spot where the AG spoke. You can say he was brought here by "another group" but the Dean was standing right there next to him. not all that, but unlike the AG's respectful address, Leahy went on to blast the Federalist Society (supposedly one of the most respected groups on campus- at least from what the administration tells me) as an extremist group, whose association wtih Alito should cause everyone to oppose him.

the AG did not respond in the panel, but he came to give a speech taht he knew would be rebutted right after- so everyone who saw him, would see David Cole and Marty Lederman debate two conservatives on the issues that the AG was speaking about.

As for whether we "invited" him or he asked to come- you are probably correct that it was his request. But he was still our guest- as Leahy was our guest. Notice that no one in the federalist society came and disrepected Leahy, despite the fact that he was directly attackign our organization.

This conduct is par for the course on our campus. Last year I put together a partial birth abortion panel, in which I got the Progressive Alliance for Life and Law Students for Choice to join in. At the actual event, a bunch of Law Students for Choice stayed only until their panelist spoke, then just got up and left without hearing the other side- this was at a panel they were co-sponsoring! This kind of disrespect for opposing views is far too common on our campus- and the events on Tuesday broadcast this ugly truth to the entire coutry.

As to what kind of publicity the protest gave to our school- it was so embarrassing that even the Daily Show, hardly a right wing outfit, openly mocked the protest on late night's show. Like I said, the protestors appeared immature- not people to be taken seriously.

paleocon said...

The infantile students obstructed the view of respectful audience members and were disruptful overall. There is a time and place for protesting Administration policies. It was the time, but not the place. They could have picketed outside McDonough.

I disagree that disrupting a major speech that had the purpose of promoting our school is their "right." This is a private institution, and the school administration may curtail our public right to free speech in any manner they choose.

Those students are an embarrassment to this school, and if I had the chance, I'd tell them to their face what I think of them. How'd you like that classy broad with "tap this" written across her enormous ass? What a great representative for our school!

D said...


Interesting thought -- the speech was "intended to promote our school." Now there's a worthy intellectual goal.

As for telling the students to their face, you do have that chance if you go to Georgetown. I'm sure that some of the students would be happy to talk to you about their motivation and thoughts on the subject.

Of course if you hope to start an honest dialogue you'll have to start posting without anonymity.

-Dave Lane

paleocon said...

I understand the motivation for what they did and why they thought it was right and appropriate. They feel that the Administration is acting tyrannically, and they drew national attention to their POV.

However, it was unnecessary. Half the country agrees with them and half don't. Their circus show isn't going to change any minds. It was nothing more than attention whoring and an attempt to embarrass the AG. Incident to that, they embarrassed this school, many (if not most) of its students, and discouraged future prominent speakers from coming here.

Georgetown gains nothing from the AG speaking here other than to show the country that some of the most important legal minds come to Georgetown to speak. This enhances Georgetown's image and prestige, and as a student here, that certainly is to me a worthy goal.

I don't care to reveal my identity (not that any of you would know me anyway) at the moment but feel free to e-mail me at and I would certainly reveal it there.

Alex Little said...


Now that I've just met you, I feel bad starting an argument right away. But, so be it...

David is dead-on about the motivations that drove the AG's speech. Ask the Dean: this was a last-minute appearance (that just happened to coincide with a PR blitz by the White House), Gonzales chose not to take questions or stay for the panel. He was offered an opportunity to take part in a real debate, and he declined.

What I find most troubling about your post, Misha, is its implicit willingness to just sit on your hands and listen--as if the administration has something substantive to say. From everything I've been told, you're a damn smart guy. A smart guy would recognize two things immediately from reading the text of the speech: (1) the tone of the speech was much more political than it was legal, and (2) it must be political in tone b/c the substantive arguments are so weak.

Had I believed that the AG wanted to debate these substantive provisions, "allow me to challenge [him] on the facts and on the law," or even make a slight attempt to convince real lawyers and law students -- rather than Joe and Jane Six-Pack -- that this program is legal, then I fully endorse your approach and would have been first in line at the mic.

On the other hand, if our University is used as nothing more than convenient backdrop for a political stump speech, I believe those of us who care about the _law_ should make our opposition known. It's not some "romantic/symbolic connection to the protests of the past" -- which, by the way, is such a trite idea, as if people in modern times do not or cannot find causes for which they feel moved to protest -- it's an overwhelming frustration with this administration's dismissive view of the law that drove me to stand up and turn my back on the AG.

Finally, Misha, I have to ask: what form of dissent would have been less "immature" in your mind? Less screaming and yelling. Check. Less throwing of pig's blood. Check. Hmmm... Maybe standing quietly and walking away is a childish thing to do. (although children have quite a hard time staying quiet).

Oh, I forgot to add: your distinction about "the 1960s civil disobedience paradigm" and "understanding the predicates that made those protests necessary," was quite a laugh. Apparently, permitting a panel to rebut your speech and dissent your position _after_ you leave the rooms and the media turns off the camera is the current vanguard of dissent. Fight on, you progressive, you!

As always, closed-minded, disrespectful and immature,

Misha Tseytlin said...

Alex- well once you know me better, you know I never mind a good argument. I can tell that I have offended some people with my post. And, frankly, I am surprised that at some of the people that I have subsequently learned were part of this operation- just did not expect that.

One of my major objections to your post is your claim that the administration has nothing substantive to say on this issue. Since the protesters (can I assume you were one of them?) turned their backs while Gonzales talked, I think that was the message you all conveyed. The Bush administration has taken a stance that their power in the War on Terror is great- the AG’s speech was part of their effort to sell that to the American people. This is not an implausible or insane argument- there is at least one very respected liberal Georgetown law professor who said in a class I am in that he finds the AMF/Article II argument very convincing. Personally, I do not find these arguments convincing- but, then again, I find very few arguments in favor of more power in the hands of government convincing.

The tone of the speech was more political- but the Constitution is our document. It is not merely for the AG to sell the argument to lawyers- he must sell it to the American people. While I do have some sympathy to your elitism toward joe six pack- they ultimate have the same say in our democracy as you and I do. It is not a bad thing that the administration go out and defend its positions, put them out to the light of criticism of professors like David Cole. I think it was a good thing that he came to our campus- spoke at a place where the administration does not have many friends. IT would have been better if he had taken part on the panel- but the panel was a pretty good one, and I think the anti-executive power point of view (our point of view, on this issue) was well represented.

On the point about the romantic connection to the past. I did not mean that there aren’t issues that are worth fighting for- there are many, and that is one the reasons I went into the law. What I am saying is that the usefulness of these kinds of protests is a thing of the past. It accomplishes nothing other than making the protestors feel better about themselves- and, if done poorly like this one, discrediting the message they are trying to put forward.

As for looking for a symbol of mature dissent- look at the way David Cole acted. I do not know Professor Cole, and maybe he would have joined you with his back turned if he was on the panel. He did not turn his back- he listened, and then responded with a strong critique of the legal arguments the AG made. Another form of mature protest would be to write an article explaining why the AG is wrong. Another form would be to get up and ask a pointed question at the conservatives on the panel. So you all did not reduce yourselves to PETA-level protests, you still turned your back while a guest at our school spoke, you still walked out before listening to the panel.

And that is the major point of my original post- which perhaps got lost because I used too many unnecessary adjectives. There is not a single person who does not agree with you already that you convinced by your actions. The average viewer did not look at you all and see concerned, careful law students who disagreed with the administration’s legal positions. They saw a bunch of kids who has so little respect for the attorney general that they refused to even face him. That is what you were going for- but it backfires, badly. You are now easier to marginalize because of your actions. This is not a good thing, for anyone except the Bush administration.

It is also not a good thing for Georgetown Law- which has now had its reputation as a narrow-minded liberal institution- where conservatives are ignored and shunned reinforced. I have worked hard as federalist society president to change that image of the school- pointing out to conservatives who have pre-conceived notions of us that we are not really like that. When the biggest national news our student body makes is acting the way the protestors did- refusing to even listen to a very rare occasion when anyone other then the federalist society brings a conservative speaker on campus- all that work gets undone. As I said in my post, it makes Georgetown Law look bad.

Charles Iragui said...


I hate to say that I disagree with your post.

1) I did not see the protest, but my understanding is that the protesters made no noise and did not materially disrupt the speech. Compared to the typical college nonsense (pies thrown, shouting to drown out the speaker), this was a "mature" action of profound dissent.

2) The issue is one of critical importance, no less so than racial inequality 40 years ago. Here the administration is claiming powers that presumably are a permanent addition to the presidential toolbox: we'll probably always face a terror threat.

3) Just as 40 years ago, other means are available to protesters. People could well have just written editorials and calmly listened in auditoriums. You seem to imply that chaotic disruption should face an objective hurdle. It should not: the passion of dissent is a basic protection of all of our freedoms.

AND, I should disclose, I wholeheartedly support the Bush Administration's position. It has correctly obeyed its highest duty: to protect the nation against attack.

BUT, as on many issues during the last 5 years, the bubbling opposition has usefully obliged the Bush team to regularly rejustify itself to the people.




Patrick D'Arcy, 3L said...

Lets get real here. The facts are uncontroverted.

1. The protestors blocked the view of those who wanted to listen to the speeches;
2. The protestors blocked the cameras at times so that people on television couldn't see the speeches;
3. Whether or not a person agrees with another persons position, it is NEVER polite and ALWAYS rude to turn your back on them. I have a 9 year old daughter who wouldn't do that. I guess in the real world when they come across another lawyer who says something that goes against their in your face liberalism, they'll simply turn their backs, right? Would they dare address a judge that way in court? No.
4. They took seats away from those who wanted to be there.

Their actions embarrassed our school, and make it harder for our school to attract conservative speakers. Ever notice, as Misha stated, that the conservatives never pull such stunts when liberals appear on campus? We debate them. We're grown up.

5. Those students should be disciplined.

Andreas O'Keeffe said...

I agree 100% with Misha and Pat D'Arcy
except for the discipline (i dont think that is correct response)

I like your quick sum up of what really happened Pat...i think its spot on.

For those who support the protesters rationalizing thier conduct with the thought that they were respectful in not throwing pies, I would disagree. Of course they could have done worse...but they did everything they could do without getting kicked out...that seems to be the only reason they didn't go further.

After speaking with one of the organizers, I was unmoved by his point of view (on the protest, not the issue). There is a recurring idea that what was done was the only option under the circumstances to get the message heard. I think this is wrong.

First, the message was heard long before the hooded students stood up blocking the view of those behind them. After all, the reason the Bush administration is on a PR blitz is precisely because this is a hot button issue. Everyone knows of the concerns the students were trying to voice, this is controversial and if it wasn't it wouldn't be on the news every day. Thus, the students did not have to choose between this or some other avenue of protest in order to get thier message heard...the message was already out. And IF the students felt so compelled to do SOMETHING, then i would say that it would be much more tolerable for them to face the speaker and hold a sign (in view but not BLOCKING the camera). That would get the point across as well.

This brings me to my second point. Since the message was out there, there was little if any benefit to doing this. YES, it got national media coverage. But all it did was to demonstrate a viewpoint that is already well known in the marketplace of ideas...big deal. On the other hand, it came at a big cost to the school I attend. I have to agree with Misha that conservatives on campus (despite thier alienation) welcome an intellectual debate. Unfortunately Georgetown Law is now NATIONALLY known as an institution that is hostile to such viewpoints. That does not promote the kind of robust debate we expect out of a law school. It only ensures that there is no "critical mass" of conservative students enrolling in the school (reference Grutter).

The only significant effects this had (undoubtedly there are more, less significant effects including getting the message out that has already been heard) was to diminish the capability of the law school to foster academic debate and also deminish the law school's ability to attract key controversial speakers. I would hardly expect anyone from the Bush administration to show up again. This is unfortunate, even if the administration is wrong. (and I think it just might be) In the future, we won't even get to discuss the issue.

As someone who is undecided on this issue, it only galvanized my attitude toward the liberal viewpoint. Specifically, I have come to expect behavior from such individuals that results from an attitude "My point of view is the important one and to hell with anyone else who disagrees."

So THANKS A LOT to all those whose self-gratification in being the center of attention was more important those of us who wanted to hear Gonzales speak and moreover to have such individuals come speak on campus in the future. I had forgotten that everyone else's point of view was less important than yours.

Charles Iragui said...

Might I be tolerant of these antics because they ultimately undermine the very position the protestors espouse (and which I oppose)? I wonder to what extent the opposite is true of Misha, who agrees with the protestors and therefore prefers they use wise tactics.

I simply will state that today's foolish protestors sometimes become history's heros... The Boston Tea Party was hardly "polite." Abolitionists were troublemakers. Suffragettes were angry little women. Abortion protestors are yokels...

The American people see the passion of the protestors and typically recoil at their fury, whatever their cause. The protest does draw attention to their issue, however, and sometimes, slowly, views thereby change.

We are often blind to new wisdom and should therefore tolerate current rambunctiousness.

Alex said...


Your analogy between a political speech and the courtroom is a bit of a stretch, no? I'd never turn my back on a judge or an opposing attorney, but you better believe that I'd turn my back on forms of political speech with which I disagree. I'm from the South. The KKK still holds rallies from time to time. Would you watch them quietly? Or turn your back? Apparently we know what your daughter would do.

As for your "seat" argument, that's something you should address to the Attorney General, who could've scheduled his speech to be in a room more accessible to students. He didn't. He was there for the cameras, not for you. Sorry I took your spot. Would you prefer we all sign loyalty oaths before we enter the room where the AG is speaking? The Bush campaign did this in the Fall of 2004. Apparently, it works pretty well.

Finally, what sort of discipline do you propose? I'm all ears to hear what sort of "punishment" you believe is appropriate for exercising one's First Amendment rights. Or, are you one of those folks who feel that Amendment (like the Geneva Convention) is quaint.


ps - Andreas, I'm interested by your focus on the cameras -- we could hold signs, but not in front of the cameras? What's your distinction here? That the Administration has (or should have) a monopoly on presenting their point of view via mass media? If the cameras are important, as you imply, then shouldn't the protesters want to get in front of them? In other words, to whom do you think the protests should be able to "get the point across" to?

Similarly, to Andreas and those who seemed concerned that the protest somehow interrupted this "debate," exactly who was the AG debating? The liberal media? Those liberal legal commentators? The AG had the chance to stay for the panel -- to engage legal scholars -- and he didn't want it. Why not? If the admin wants a debate, they could've had one. They don't. They want to reframe/spin/present the wiretapping issue to the American public in a certain light, whether or not their arguments/sound bites make any sense as legal argument. (Consider, for example, why the AG used the first 5 minutes and the last 2 minutes of his speech to talk about 9/11 and future terror threats. Did he think we'd all forgotten about these things? These issues are irrelevant to the legal questions -- e.g., would Clement go on and on like that in front of the Justices? -- but they make for good political window-dressing.

Charles Iragui said...


The point of recalling 9/11 is to clarify the FUTURE event that the Bush Admin fears. If one believes that the threat is 20 dead in a shopping center bombing, then we are not at war. If one believes that nukes on Time Square is the threat, then we are at war.

Bush and Gonzales think the latter and have acted accordingly (and I would say appropriately).


D said...


First, I agree that terrorists armed with nuclear weapons are perhaps the most serious threat facing the U.S. today.

However, your comment reminds me of John Yoo's statement (and I'm paraphrasing) that if the Soviet Union had done to us what Al Queda did on 9-11, there would be no doubt that it was an act of war as opposed to a criminal act.

Putting aside the fact that the 9-11 attacks were committed by terrorists armed with box cutters (not the nuclear weapons you conjure up), I don't understand the distinction that you and Yoo appear to be making between acts of war and criminal acts.

Sure, if the S.U. had committed the attacks of 9-11, it would have been an act of war. But similarly, if the S.U. sent one soldier over to the States who, under the direction of the S.U. government, then shot one U.S. citizen, that would also be an act of war. I don’t see what the scale of the act has to do with whether it’s war or crime.

I'm not seeing a clear rule from you or Yoo that distinguishes war from crime. Are you/Yoo saying that it's simply a matter of scale?

-Dave Lane

Charles Iragui said...


The word "reasonable" appears only once in the Constitution, in the 4th Amendment. Degree matters in such affairs, judgment is called for. Thus, I agree with you that the war/not war distinction may not be needed for the executive to take these measures legally; even 20 people threatened by a bomb in a shopping center, though not seemingly "war", should trigger an exceptional executive power to probe normally private spheres.

However, history and common sense distinguishes between threats of destruction on a "small" scale (shopping center above) and "catastrophic" scale, which threatens national and global disruption, changes in geopolitical relative power, large loss of life and property, reasonable, endemic fear of annihilation.

The SU posed such an insidious threat just because it was not "technically" at war with us and yet very much sought our overthrow. (Under Reagan the favor was returned: he announced a policy seeking THEIR overthrow.)

Under my analysis, the president has been able to tap into a War Power from 1941 to 1945, from 1947 to 1991 and from 2001 till the current day. In fact, I believe that the bombing of the embassies in 1998 could have triggered just these powers...

The point is that the president can do what is NECESSARY. This means that he must justify himself, but he cannot be limited.

The counter argument, that we just have to take the risk, is neither constitutionally grounded nor common sense.


D said...

First, where did you read that I believe the “war/not war distinction may not be needed for the executive to take these measures legally”? I believe that the distinction is crucially important when the executive is making claims of power based on the constitutional Commander in Chief power. And I’m not convinced that the “War on Terror” is in fact a war that triggers the power currently being claimed by Bush. That is why I’m curious about the administration’s war/not war distinction.

Second, if “20 people threatened by a bomb in a shopping center . . . should trigger an exceptional executive power to probe normally private spheres,” did the OK bombing trigger this expansive executive power? What about Ted Kaczynski?

Lastly, I am somewhat stunned by your claim that the President has been authorized to “tap into a War Power” from 1941 to the present, save for six or seven years (1946 and 1992-1997). I think your estimate is conservative if the only justification necessary to trigger the President’s allegedly unbridled executive war power is an enemy who seeks to overthrow the U.S., but more importantly, I think you’ve defined executive power in a way that swallows the checks and balances/separation of powers that are the foundation of the Constitution.

Your theory illustrates well the strange apparent goals of the Federalist Society. On one hand, it advocates for a restrained, virtually powerless judiciary. On the other hand, its members seem to favor an all-powerful executive with limitless authority. I suppose the distinction is based solely on the “accountability” of the President to the electoral college.

-Dave Lane

Misha Tseytlin said...

"Your theory illustrates well the strange apparent goals of the Federalist Society. On one hand, it advocates for a restrained, virtually powerless judiciary. On the other hand, its members seem to favor an all-powerful executive with limitless authority. I suppose the distinction is based solely on the “accountability” of the President to the electoral college."

Keep in mind that a good portion of the Federalist Society disagrees with Charles on these issues. Also, I think Charles supports big government, in many ways. The bigger problem with your statement is a belief that the Federalist Society has one group of "views" that you can mock in this way.

Also, I find it comperably ironic that so many liberals trust the government so much to regulate every aspect of our economic lives, and yet distrust it so much in these areas. As I tell both my liberal and conservative friends- its the SAME government. Its interesting that you miss this irony....

D said...


I did not write about “one group of ‘views’.” I wrote first about “the APPARENT goals of the Federalist Society,” then I wrote what “its members SEEM to favor” (emphasis added). I did not mean to imply that I was sure all members of the FS hold one particular view.

By the way, this is as good a time as any to point out that you and other FS members on this board often object when someone attributes a particular viewpoint to members of the FS. At times I understand your frustration -- clearly different members of the FS hold different opinions about different issues -- but part of the price you pay for group membership is that you will be associated with the predominant views of members of that group. That doesn’t mean it’s ok to make incorrect assumptions about a person based solely on group membership, it just strikes me as sort of whiny to constantly complain about it. If you want to maintain complete individuality, quit the FS.

And while I don’t claim to speak for “liberals,” it’s not tough to distinguish between economic regulations enacted by Congress and signed into law by the President following open debate, and a secret domestic surveillance program.

-Dave Lane

J. Li said...

I don't think we've been "complaining" about it. At times my frustration is precisely the opposite. We try so hard to be intellectual that all sorts of different opinions pop up--on executive power, on the extent of Barnett's theory of originalism (certainly not minimalism and majoritarianism in any sense), on Terry Schiavo, etc.--that I sometimes wish we were more overtly political in one direction.

But we're not. There truly is no one "view" that predominates us. Without sounding pretentious, the only real predominating trait of the FS is elitism--great for these academic debates, terrible if you're running for office.

P.S. This entire series of posts have been healthy and a joy to read. Thank you.

Charles Iragui said...


Our Constitution includes separation of power because government based on trust will likely devolve into tyranny.

Our government is also not one of DISTRUST and executive actions, like those of the other branches, deserve a presumption of validity, constitutionality and true motive.

When, in defense of the nation against attack, the President acts, he has no need of Congressional approval or statutory framework. Unlike the courts, the President has no need in such instances for enabling legislation... he needs only Congress' money. (I.e. are the President's choices for Joint Chiefs submitted to Senate approval...)

If the President has IN FACT acted to repell attack, how can his actions be limited by statute? I would claim that this evokes the true question: were the President's actions intended to repell attack? In the case of NSA wiretaps, no one has made any claim to the contrary.

You and Misha are making a problem where there is none. Rather than fearing the President's power to protect us, you should be glad that we have a government in which the courts and Congress have the power to subject presidential actions to scrutiny.


PS: The Cold War involved the infiltration of the country by subversive groups and made executive actions much more difficult to assess: when was the wiretap of this or that leftist justified and when was national security just a convenient excuse? What happens to scrutiny of the executive when even prominent members of the government cannot be trusted (see 3rd Roosevelt Admin)? This difficulty is much less present in the current struggle.

Andreas said...


I suspect that you might have not read the caps in my post. I said to have the sign in view but not blocking the camera.

And the second point about interrupting the debate concern was that by blocking the camera the aim was to Monopolize (sp?) the forum in favor of the dissenting viewpoint. While undoubtedly I could hear the AG while the sign was blocking my view, I was distracted and wanted to listen intently...I was denied this opportunity.

I recognize the adminstration had a significant PR aspect to this. That does not mean it was not also academic debate. While I agree it would be better for the AG to have stayed and taken questions, I dont think that diminishes the fact that he came in the first place. And lets not forget that the dissenters left also.