jack balkin/eric posner the heads du blogging

Great Bloggingheads here between the two legal theorists on the executive/executive power.

Also check out this post by Balkin at his blog (Balkinization)  arguing that George W. Bush will likely not leave the executive in a weakened position.  Very sharp.

What Balkin consistently gets I think is the macro-scale structural changes/trends in government and law.  He gets pushback in the comments for not paying enough attention to the specific activities of the parties, but others deal better with that.  I appreciate his wide-scale lens, so often lacking in political discourse.

His larger point is that bureaucracies are growing–surveillance, defense, welfare state–through a mixture of business/government (either party) driven by technology.  The executive is aggregating power unto itself as head of these bureaucracies while simultaneously the presidential elections become increasingly plebeian (i.e. popularity) contests.  [Hmmm, maybe I miss Mitt now that he’s gone?  Mitt the Manager that is, not Mitt the fake social conservative.]

The key for Balkin (and here I agree with him on the larger point though not always on specifics) is that the way forward is to find institutional safeguards for rule of law, protection of liberty, from within these growing sectors.   (i.e. In the diavlog I’m with Balkin not Posner on this point).

That is, while in a lotta ways I’m sympathetic to a libertarian point of view of reduced government, I don’t see electorally or systematically the place whereby such a movement gains leverage.  In light of that, I would rather focus practically on institutional safeguards within this framework.

Though I’ve never seen Balkin write on this, I think the same thing is on the way in health care.  I tried to make such a point in a comment (way at the bottom) on this post from C4, which generated some vociferous (and not always civil) debate on national health care policy.  My basic point was that if an individual wants to stand for small government conservatism on principle, by all means.  I respect that choice.  But in the meantime don’t label anyone who disagrees (or thinks practically a different set of reduced options must be fought for) a socialist, liberal fascist, or soft totalitarian.

The libertarian response to such an outlook is that no such institutional safeguards could be established as governments by hook or crook (self-legitimated included) take power unto themselves.  The give an inch, she’ll take 9,000 miles argument.

The counter-argument from this position I’m advocating is that no doubt that is and can  be true and requires constant vigilance and for sure not every battle is going to be won.  On the other hand, absenting from the debate (which like it or not is going to be about methods, techniques, reach and not a yes/no on say war powers, surveillance issues,  etc.) leaves open the possibility that the system not only continues unabated but becomes indeed a dangerous one.

The only real totalitarianism I believe the US need fear is not Stalinism or Nazism come to the US nor liberal fascism/totalitarianism, but bureaucracies increasingly outside the purview of the citizenry becoming information “gluttons and hoarders” as Balkin would say.  That is in the new information-gathering based “predictive” form of government Balkin outlines, the government does not make transparent how it collects the information on citizens that it does, how it is vetting/collating that information, and so forth.  That crosses pet left/right policy issues (i.e. Right is for the National Security and Defense Industry-Governmental Matrix while the Left is for the Health Care/Welfare State Governmental-Industry Matrix).

For an outlook of what a median position on health care could be (between government totally run and current US system) here from Radical Middle theorist Mark Satin. It won’t please a 100% libertarian viewpoint for sure, but I think it is better than either the current system or say a Hillary-Care model.

Published in: on February 9, 2008 at 2:23 pm  Leave a Comment  

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