I am in New York for the annual meeting of the American Association of Law Schools and the simultaneous meeting of the faculty division of the Federalist Society. Tomorrow morning, I have to present a work in process entitled "Of Speeches and Sermons: Worship in Limited Purpose Public Fora." (Trust me, it's fascinating.) The piece draws on theological conceptions of worship to consider whether sermons differ from speeches from a religious perspective in a way that should be constitutionally significant for private speakers in government forums. I am getting it down to the requisite time limit tonight in the city that never sleepsand this is putting off my homework. I am really Mr. Fun.
But earlier, I attended a reception and panel discussion on executive power. I was disappointed because one of the leading academic critics of the Bush administration's exercise of executive war powers, Sandy Levinson, was scheduled to be on the panel but did not show up. Still I leave you with some provocative statements and concepts from some of the panelists. It is impressionistic and does not try to summarize the complete gist of what each had to say.
Harvey Mansfield, political theorist from Harvard - We want, not a mediocre country, but a great one and our greatness is measured by the greatness of our Presidents. Our constitution allows for greatness to rise above ordinary law. This sounds over the top to me as well (and his presentation was far more nuanced than this), but one member of the audience asked: Would you prefer Buchanan to Lincoln? I might add: who will remember Jimmy Carter as anything but a disaster? To say that there can never be a tension between the exercise of reason and the rule of law may not quite comport with reality. Another audience member suggested that, in a time of war, the overriding presupposition is to put your foot on the enemy's neck lest he put his foot on yours. The law, he said, will never help us to do this because it can only limit - and not direct - the exercise of power. It cannot help win the war. Isn't there both truth and great risk in that statement?
Neomi Rao, lawprof at George Mason - Those who criticize the executive's filling in interstices in the law in the areas of war and foreign policy rarely do so with respect to similar exercises of discretion with respect to the domestic administrative state. She had a lot to say about post hoc limitations on the executive. (Thanks to blogger Illusory Tenant who obviously wants a job as my proof reader.)
Ilya Somin, lawprof at George Mason - He argued for a more limited executive authority. We ought to be risk averse with respect to the threat of tyranny, so we can accept the riskiness of liberty. Congress may be more likely to be mediocre, but less likely to be mad.
An interesting comment was made by one member of the audience who said that, at a certain level of generality, everyone might agree with each speaker. Executive discretion in a time of crisis is vital. Unfettered discretion is dangerous. The devil is, as always, in the details.