Arguments are Soldiers

January 13, 2010

Is there a t-shirt that says “Everything I hate is unconstitutional”? I would buy that t-shirt.

-Will Wilkinson, via Twitter

Watching this interview between Jon Stewart and “torture memo” author John Yoo, I am reminded once again of the favorite pastime of Republicans, Libertarians, and Democrats: claiming that everything we don’t like is illegal or unconstitutional.

I am reminded of this fact because the commentary on the interview has titles like When Jon Stewart Fails. In the interview, Stewart “fails” because he doesn’t prove that John Yoo was professionally negligent in writing his famous memo, and because he doesn’t prove that the Bush administration committed a prosecutable crime.

The main, really the only, obstacle here is understanding that something can be legal and wrong at the same time. Stewart and Yoo go over the examples of Lincoln’s suspension of habeas corpus and FDR’s internment of Japanese-Americans without mentioning the obvious point that, although putting Japanese-Americans in internment camps was very bad, it was not a crime.

By failing to make this simple distinction, Stewart is frustrated throughout the interview. He’s trying to argue about whether the interrogation techniques used under Bush were right. Yoo only makes statements about whether they are (or were) legal. In a way, I think Stewart succeeded in the interview, if only by demonstrating that the current powers of the government are such that the President can pursue unjust and immoral policies which are nonetheless legal.

I don’t at all buy the argument that these lawyers didn’t understand what the Bush administration was trying to do. Whatever John Yoo is, he’s not an idiot. The reason Bush asked for a legal opinion in the first place was that he was trying to go as far as possible in interrogation without being subject to prosecution for violation of the torture statute. Given that this was his goal, I don’t see why we should believe that he failed at it.

I don’t want to make it seem like I have a well-developed opinion on this case. It’s possible that Bush actually did break the law. But it’s also possible that he didn’t. And, importantly, it’s possible that what he did was wrong, but he still didn’t break the law.

Libertarians always insist that the Department of Education or federal laws on marijuana are unconstitutional. Recently I even got in a brief discussion about whether health care reform is constitutional. As far as I’m concerned, libertarians are correct and all of these violate a normal reading of the constitution. But honestly, it doesn’t matter. The Supreme Court isn’t going to overturn any of these laws and everybody knows it. And the fact that “everybody knows it” is what is supposed to make it effective law. As Robin Hanson said, “this game has to have rules.”

From the Cato Institute to the New York Times, there is this shared notion that on any issue, all arguments, legal, moral, practical, and otherwise, have to point to the same conclusion. That would be very convenient, but it’s just not true.


One Response to “Arguments are Soldiers”

  1. Rrrobert! Says:

    Two related frustrations of mine:

    1. “Somebody is suing to achieve an outcome I want; therefore the case has merit and I want it to succeed, regardless of the precedent it would set.” Legal cases have consequences outside their immediate contexts, people!

    2. “The System isn’t giving me my preferred outcome; therefore, we should change the System.” Maybe, maybe not, but I really want an argument beyond “then I would get what I want.” Particularly irksome with “we should get rid of the filibuster” so soon after the Bush years.

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