26 June 2004

I think I hit a nerve with those two items yesterday on the Cheney nondecision. Not only was my daily traffic about three times the median over the last three months, but I got both kinds of hate mail: reactionary and radicalish. In the end, what this tends to demonstrate is that the latter two ideological preferences (if I can be so bold as to claim that such even exist) are much closer together than they pretend. Neither reactionaries nor radicals brook dissent, and they are therefore opposed to proceduralist systems (like the rule of law) that tend to preserve and even encourage dissent.

One need only look at the history of Western politics since the fall of Constantinople to observe these strange bedfellows engaging in behavior that would certainly fall afoul of indecency regulations. The American, French, and 1917 Russian revolutions exemplify this. In all three cases, the revolutions adopted draconian methodologies to root out all opposition in the name of unity against an external foe. The distinction among them is a simple one: The Americans vanquished their external foe and were militarily secure enough to back away from the brink of totalitarianism; the French and Russians (Soviets) did not and could not. What this implies more than anything else is that a successful revolution is a short-horizon action; if a revolution takes long to create a self-sufficient successor, we'll end up back in Mr. Pilkington's parlour, because once it adopts the methods of its hated predecessor it cannot of its own strength dispose of them.

What proceduralist systems do is provide a control for an extraordinarily intrusive variable: unfettered individual discretion. One can say with some justice that the consolidation of power by those persons with both unfettered individual discretion and the ability to enforce that discretion eventually overwhelms just about anything that one might say about ideology or policy. Compare Stalin and Hitler. Regardless of the quirks of their policies and the particular expressions of their bloodthirty bigotry—"white" Russians for the one, Jews and Gypsies for the other—either one could have been dropped into the other's government with nary a bump. Strong procedural systems, though, do two things to personal discretion by decisionmakers. First, they make it explicit when such discretion is exercised. That allows one to judge the legitimacy of both the decision and its underlying policy on the one hand and the decisionmaker on the other. Second, and perhaps more importantly, in many instances the confines of procedure—by removing that independent variable—allow one to actually study the policy questions presented by the decision with little (or at least less) distraction by considerations of partisanship and personal aggrandizement.

That's why I believe that a liberal agenda is best served by a strong rule of law with a strong procedural basis. By providing a forum for the testing of ideas in as controlled an environment as possible, the ideas can stand (or fall) on their own merits, and not on the merits of those advancing or opposing them. That is, a strongly procedural system minimizes the ad hominem fallacy. Minimizes, but does not eliminate—as the controversy swirling around Cheney indicates, sometimes "minimizes" is indeed a very relative measure!

Politics is the art of the possible. As every serious thinker from Plato on has eventually conceded—if only by implication—perfect justice, all the time, for everyone, is impossible. The irony is that a strongly procedural system provides the greatest justice for the greatest number; and, by doing so, allows attention to be paid to those outside that result. Merely concentrating on maximizing total utility, however, does not. The means do shape the ends. And, thus, the nondecision in Cheney was correct; and, perhaps, the attorneys who did not anticipate the procedural difficulties undermined the substance of their clients' policy preferences, however unintentionally.