Levinson expresses the belief that Alito was nominated because:
The answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the “Commander-in-Chief” Clause of Article II of the Constitution.
Levinson sees the basic contours of the challenge. But using the narrow, technical prism of legal analysis limits understanding. The so-called 'internal' reasoning of law and the legal Academy is distinct from the 'external' or systemic prism of political science or philosophy.
The 'internal' view misses the dimensions of the challenge because such an internal legal analysis can not encompass ideological agendas that transcend legal norms. And the Stiftung believes this Administration the most radical and ideological in American political experience.
Alito and Carl Schmitt
Carl Schmitt, the NSA issue and Alito are linked. Beyond aggressive assertions of Article II power, what is the underlying philosophy and limits of Executive power? To what extent can the hearings on January 7th explore whether, where and how Alito has elements of Schmittean thought in his legal decisions, memos and philosophy?
Readers of this blog know our thesis: fundamentally, the Cheney/Addington radical views of Executive Power are part of the Administration's roll back of the liberal democratic experiment - the Counter Enlightenment 2001-08.
Alito, as Levinson notes, is merely a tool in that overall drive. But for more than Levinson suspects.
The Administraiton's radical nature remained cloaked for some time. And observers tended to notice only the elements that were exposed — such as the neocon embrace of the Iraq War. The EOVP's obsession with torture exposed more dimensions. But the overall tapesty has not been united into a full narrative of what is underway.
And the Administration has been good at using traditional American lexicon and discourse to describe their objectives. After all, asserting Executive Power — even in extreme form — is a familiar political meme to Americans.
What is not familiar are the goal and purpose of such assertions. Steve Chapman's recent bewilderment as a conservative pundit is revealing. He asked (cited in earlier post), “What is the reason for this extreme assertion of Executive Power?” Dear Reader, we submit the answer is Carl Schmitt.
Ira Straus in his comments below on the Schmitt post makes valid qualifiers. Not everyone caught up in this debate is a Schmittean — directly or indirectly. An inquiry into the applicability of Carl Schmitt to the current American context will help draw bright lines and force the issue into the open. Exposing these questions and ideas to open discourse, we can set some clear parameters. A Schmittean agenda in the U.S., to be successful, must still be furtive. The majority of the American people are still largely not radicalized.
Exploring these issues with Alito beginning Janaury 7th would be a good place to start taking a stand.
Tags: Counter Enlightenment, Carl Schmitt, Neocons, Iran