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George Will discovers Carl Schmitt (in the person of Henry Paulson)

By Jack M. Balkin

George Will has a very interesting column in today's Washingto Post calling for "more judicial activism." He is referring to the Supreme Court's quickly refusing to engage in any oversight over the sale of Chrysler to Fiat, which he suggests raises problems under the Contracts and Taking Clauses. An embarrassment to conservatives is that the Constitution almost ostentatiously does not apply the Contract Clause to the national government, though the Supreme Court in effect applied it in the mid-30s. But the Takings Clause obviously does apply, and I suppose one might take seriously the Indiana argument that its preferred creditor status was "taken" by the government. Wills concludes his column as follows:

Of course courts should not make policy or invent rights not stipulated or implied by statutes or the Constitution's text. But courts have no nobler function than that of actively defending property, contracts and other bulwarks of freedom against depredations by government, including by popularly elected, and popular, officials. Regarding Chrysler and GM, the executive branch is exercising powers it does not have under any statute or constitutional provision. At moments such as this, deference to the political branches constitutes dereliction of judicial duty. ....

A bemused [then-Secretary of the Treasury] Henry Paulson, who was present at the creation of Bailout Nation with TARP funds, said while still in office: "Even if you don't have the authorities -- and frankly I didn't have the authorities for anything -- if you take charge, people will follow." This would not be happening were Congress awake, or were the courts properly active.

Much could be said, including the obvious point that almost no one is a down-the-line "judicial restraint" buff. Everyone wants a decidedly activist court with regard to his/her own favorite readings of the Constitution. Some of us, for example, might believe that courts have "no nobler function" than protecting the rights of the truly vulnerable in our society, including, of course, victims of illegal torture and other depredations during our so-called "Global War on Terror." But that's not really my main point.

Rather, the final paragraph is in many ways what's especiallly interesting, for Paulson is basically saying that Carl Schmitt got it right, that political leaders will freely g0 beyond any notion of limited authority when they believe that they are confronting truly "exceptional" situations. Paulson is describing exactly what a Schmittian "sovereign" does: make a decision, with or without "authority" in the presumption that a scared public will follow. And, of course, this also underscores another one of my hobbyhorses--I actually have several, of which "our deficient Constituiton" is only one--which is that we may well have multiple "constitutional dictators" depending on the particular issue provoking the perception of the "state of exception." Nobody would have taken George W. Bush seriously, but, presumably, it's different when former Princeton Professor of Economics Ben Bernanke or former head of Goldman Sachs (at a final salary of $38 million/year) Henry Paulson says that something really must be done.

I am truly curious, though, how many people would want the judiciary to get actively involved in such decisions. Recall, for example, the Gold Clause Cases, when the Supreme Court (shades of Marbury) said both that FDR had probably acted unconstitutionally, but, alas, that they were without authority to enjoin him from doing so. For himself, FDR had already apparently prepared a speech explaining his intended defiance of the Court had it in effect wrecked his plan to restore the economy.

Full post as published by Balkinization on June 14, 2009 (boomark / email).