Comments on: The Pure Types of Legitimate Authority http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/ Out of the crooked timber of humanity, no straight thing was ever made Sun, 27 May 2012 06:29:47 +0000 hourly 1 http://wordpress.org/?v=3.3.2 By: jay bee http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203700 jay bee Fri, 13 Jul 2007 07:56:01 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203700 This started as an interesting strand but British constitutional law is such an incoherent mess that its no place to begin a discussion - was it Churchill that said there was nothing to stop Parliament passing a law that every first born male child be put to death? That's the "according to law" bit. 19: If Parliament had lost the Civil War there would have been no statutes in 1688. Just as no state may secede from the Union not because of anything in the US Constitution or any decision of its Supreme Court but because of the decision in the great case of Grant (& others) -v- Lee (& others). This started as an interesting strand but British constitutional law is such an incoherent mess that its no place to begin a discussion – was it Churchill that said there was nothing to stop Parliament passing a law that every first born male child be put to death? That’s the “according to law” bit.

19: If Parliament had lost the Civil War there would have been no statutes in 1688. Just as no state may secede from the Union not because of anything in the US Constitution or any decision of its Supreme Court but because of the decision in the great case of Grant (& others) v Lee (& others).

]]> By: Mike http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203689 Mike Fri, 13 Jul 2007 05:56:00 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203689 <i>Howsabout we just rent “Johnny English” and let John Malkovich explain to us just what the Queen can and cannot do?</i> I don't remember that bit, but <i>To Play the King</i> provides a good object lesson. Howsabout we just rent “Johnny English” and let John Malkovich explain to us just what the Queen can and cannot do?

I don’t remember that bit, but To Play the King provides a good object lesson.

]]> By: Dan Kervick http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203664 Dan Kervick Fri, 13 Jul 2007 00:59:08 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203664 The thrust of most of the comments I've read on this issue is that, as a fanatical Bush loyalist, Ms. Taylor is just intellectually or emotionally confused on some level about the content of her oath of office. Nobody seems to be considering the possibility that, in addition to her oath of office, Ms. Taylor might actually have required to sign a loyalty oath of some kind. I seem to recall some controversy in Bush's first term about Janet Rehnquist attempting to force HHS staffers to sign a loyalty oath. The thrust of most of the comments I’ve read on this issue is that, as a fanatical Bush loyalist, Ms. Taylor is just intellectually or emotionally confused on some level about the content of her oath of office.

Nobody seems to be considering the possibility that, in addition to her oath of office, Ms. Taylor might actually have required to sign a loyalty oath of some kind. I seem to recall some controversy in Bush’s first term about Janet Rehnquist attempting to force HHS staffers to sign a loyalty oath.

]]> By: fardels bear http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203618 fardels bear Thu, 12 Jul 2007 21:09:06 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203618 Howsabout we just rent "Johnny English" and let John Malkovich explain to us just what the Queen can and cannot do? Howsabout we just rent “Johnny English” and let John Malkovich explain to us just what the Queen can and cannot do?

]]> By: X. Trapnel http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203614 X. Trapnel Thu, 12 Jul 2007 20:14:40 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203614 Actually, forget it, I'm not even going to try to defend a hypothetical Razian Taylor at this point, not when the real Taylor pretty clearly has no commitment to constitutionalism. My apologies, folks. Actually, forget it, I’m not even going to try to defend a hypothetical Razian Taylor at this point, not when the real Taylor pretty clearly has no commitment to constitutionalism. My apologies, folks.

]]> By: Mike http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203613 Mike Thu, 12 Jul 2007 20:12:09 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203613 Well, that 'according to law' bit may be what MPs and other government officials have to say, but your Tommie owes his allegiance to Her Majesty, viz: <i>I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors and that I will as in duty bound honestly and faithfully defend Her Majesty, her heirs and successors in person, crown and dignity against all enemies and will observe and obey all orders of Her Majesty, her heirs and successors and of the generals and officers set over me.</i> The Royal Navy, having been created by royal perogative, is assumed to be loyal to the monarch, and its members don't have to swear this oath. Well, that ‘according to law’ bit may be what MPs and other government officials have to say, but your Tommie owes his allegiance to Her Majesty, viz:

I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors and that I will as in duty bound honestly and faithfully defend Her Majesty, her heirs and successors in person, crown and dignity against all enemies and will observe and obey all orders of Her Majesty, her heirs and successors and of the generals and officers set over me.

The Royal Navy, having been created by royal perogative, is assumed to be loyal to the monarch, and its members don’t have to swear this oath.

]]> By: X. Trapnel http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203612 X. Trapnel Thu, 12 Jul 2007 20:10:09 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203612 Jr: from Taylor-prime's perspective, executive privilege could well exist even if the executive is unwilling, for whatever reasons, to demand court enforcement, just as a contract could be legally binding even if I announce that I'm not going to take you to court over it because I don't want the publicity or something. From this perspective, Bush is being doubly-awful: telling Taylor that the matter is privileged, so that congress' questioning is unlawful, and hence she has a constitutional responsibility to stay silent, BUT that the administration is unwilling to interpose itself between her and Congress in any helpful way. Again, I think she would be wrong to attribute such interpretive authority to the president, it's at least plausible. Her theory of authority is the *least* of her mistakes in philosophical judgment at this point in her career. Jr: from Taylor-prime’s perspective, executive privilege could well exist even if the executive is unwilling, for whatever reasons, to demand court enforcement, just as a contract could be legally binding even if I announce that I’m not going to take you to court over it because I don’t want the publicity or something. From this perspective, Bush is being doubly-awful: telling Taylor that the matter is privileged, so that congress’ questioning is unlawful, and hence she has a constitutional responsibility to stay silent, BUT that the administration is unwilling to interpose itself between her and Congress in any helpful way.

Again, I think she would be wrong to attribute such interpretive authority to the president, it’s at least plausible. Her theory of authority is the least of her mistakes in philosophical judgment at this point in her career.

]]> By: JR http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203611 JR Thu, 12 Jul 2007 20:01:46 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203611 X trapnel - the privilege is the executive's, and it is for the executive to protect. If the president has failed to seek a judicial order barring enforcement of the subpoena, then Taylor has a legal duty to testify. She has no right to refuse to testify based solely on a lawyer's letter. X trapnel – the privilege is the executive’s, and it is for the executive to protect. If the president has failed to seek a judicial order barring enforcement of the subpoena, then Taylor has a legal duty to testify. She has no right to refuse to testify based solely on a lawyer’s letter.

]]> By: engels http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203610 engels Thu, 12 Jul 2007 19:59:04 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203610 Anderson - Fair enough, I shouldn't have expressed it like that. But the point is just that while Bush possesses effective power the Queen only possesses theoretical power, so swearing an oath to Bush, while formally the same as swearing an oath to the Queen, seems likely to have a different meaning. Anderson – Fair enough, I shouldn’t have expressed it like that. But the point is just that while Bush possesses effective power the Queen only possesses theoretical power, so swearing an oath to Bush, while formally the same as swearing an oath to the Queen, seems likely to have a different meaning.

]]> By: Jacob Christensen http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203609 Jacob Christensen Thu, 12 Jul 2007 19:57:44 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203609 Ms. Taylor just remembered what that other guy said: <blockquote>Well, when the President does it, that means that it is not illegal.</blockquote> Or to put it in a slightly more formal way: <blockquote>ii. The President of the United States is hereafter and should by all subjects be held and revered as the pre-eminent and highest head here on earth above all human laws and as one that no other head or judge feel above in either spiritual or temporal matters except God. iii. Thus the President alone should have the highest power to decide acts and regulations after his own good will and pleasure, to declare, change, expand, reduce or even annul previous acts given by him or his ancestors, with the exception of this Constitution which as the true foundation of this Commonwealth shall stay unchanged. iv. The President alone shall have the highest power and authority to appoint and dismiss all civil servants, no matter their position, name or title, after his own will and pleasure, so that all offices, whatever their authority, derive from the sovereign power of the President.</blockquote> Okay - that was actually my (amended as necessary) translation of sections ii-iv of the Danish Royal Act which regulated the power of the Danish King between 1665 and 1848. The point is that legally legitimacy could go together with the claim of absolute power. (And yes: To me Bush43 and Cheney appear very pre-1789.) <a href="http://bjoerna.dk/DanskeLov/Kongeloven.htm#Kongelovens-indhold" rel="nofollow">The Royal Act (in outdated Danish)</a> Ms. Taylor just remembered what that other guy said:

Well, when the President does it, that means that it is not illegal.

Or to put it in a slightly more formal way:

ii. The President of the United States is hereafter and should by all subjects be held and revered as the pre-eminent and highest head here on earth above all human laws and as one that no other head or judge feel above in either spiritual or temporal matters except God.

iii. Thus the President alone should have the highest power to decide acts and regulations after his own good will and pleasure, to declare, change, expand, reduce or even annul previous acts given by him or his ancestors, with the exception of this Constitution which as the true foundation of this Commonwealth shall stay unchanged.

iv. The President alone shall have the highest power and authority to appoint and dismiss all civil servants, no matter their position, name or title, after his own will and pleasure, so that all offices, whatever their authority, derive from the sovereign power of the President.

Okay – that was actually my (amended as necessary) translation of sections ii-iv of the Danish Royal Act which regulated the power of the Danish King between 1665 and 1848. The point is that legally legitimacy could go together with the claim of absolute power.

(And yes: To me Bush43 and Cheney appear very pre-1789.)

The Royal Act (in outdated Danish)

]]> By: abb1 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203607 abb1 Thu, 12 Jul 2007 19:39:59 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203607 The logic behind this thing is simple: president has the power to 1. declare anyone 'illegal combatant' and jail him/her indefinitely and 2. pardon anyone convicted of any crime (contempt of congress, for example). Stick with the president (or, as they say, 'never go against the family'), it's a no-brainer. The logic behind this thing is simple: president has the power to
1. declare anyone ‘illegal combatant’ and jail him/her indefinitely and
2. pardon anyone convicted of any crime (contempt of congress, for example).

Stick with the president (or, as they say, ‘never go against the family’), it’s a no-brainer.

]]> By: X. Trapnel http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203606 X. Trapnel Thu, 12 Jul 2007 19:22:36 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203606 I'm obviously not going to ask Ms. Taylor for a review article of <i>The Morality of Freedom</i> or anything, but it's really not hard to give her position a philosophically respectable formulation. She believes the constitution to lay down authoritative directives. But sometimes these directives are unclear. So she also believes federal courts have either legal authority to command obedience to directives even if contrary to her understanding of the constitutional norms [within limits, no doubt] or epistemic authority over the proper articulation of those norms [again within limits], or some combination of both. But, crucially, she does not believe this of the Senate. Or, if she does, she believes it to be trumped by the authority of the president. Now, it would be hard to sustain a claim of presidential legal authority to go against clear constitutional directives, even in a limited sense, as one might allow to courts, but it's not hard at all to imagine accepting Presidential epistemic authority in interpreting ambiguous norms, especially over certain 'political question' areas. So, Taylor-prime says "my oath is to the constitution, but that constitution might confer an executive privilege that nullifies your legal right to my testimony in these matters. It's plausible enough that I feel I must defer to the president's epistemic/interpretive authority about his constitutional powers, until this matter comes before a federal court, whose judgment I will then accept without question." I think even Taylor-prime would be wrong, but she would hardly be guilty of straightforwardly misunderstanding legal authority. I’m obviously not going to ask Ms. Taylor for a review article of The Morality of Freedom or anything, but it’s really not hard to give her position a philosophically respectable formulation. She believes the constitution to lay down authoritative directives. But sometimes these directives are unclear. So she also believes federal courts have either legal authority to command obedience to directives even if contrary to her understanding of the constitutional norms [within limits, no doubt] or epistemic authority over the proper articulation of those norms [again within limits], or some combination of both. But, crucially, she does not believe this of the Senate. Or, if she does, she believes it to be trumped by the authority of the president. Now, it would be hard to sustain a claim of presidential legal authority to go against clear constitutional directives, even in a limited sense, as one might allow to courts, but it’s not hard at all to imagine accepting Presidential epistemic authority in interpreting ambiguous norms, especially over certain ‘political question’ areas.

So, Taylor-prime says “my oath is to the constitution, but that constitution might confer an executive privilege that nullifies your legal right to my testimony in these matters. It’s plausible enough that I feel I must defer to the president’s epistemic/interpretive authority about his constitutional powers, until this matter comes before a federal court, whose judgment I will then accept without question.”

I think even Taylor-prime would be wrong, but she would hardly be guilty of straightforwardly misunderstanding legal authority.

]]> By: dearieme http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203601 dearieme Thu, 12 Jul 2007 19:04:31 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203601 rea, yes, most of us know that our monarch is not appointed by Divine Right, but by an algorithm defined by an Act of Parliament. Though, come to think of it, the youngsters may need instruction on this since they went to school after The Progressives buggered the schools up. rea, yes, most of us know that our monarch is not appointed by Divine Right, but by an algorithm defined by an Act of Parliament. Though, come to think of it, the youngsters may need instruction on this since they went to school after The Progressives buggered the schools up.

]]> By: Adam Kotsko http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203591 Adam Kotsko Thu, 12 Jul 2007 18:31:08 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203591 Bush might have one, but Cheney has <i>at least</i> two. Bush might have one, but Cheney has at least two.

]]> By: ~~~~ http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/comment-page-1/#comment-203576 ~~~~ Thu, 12 Jul 2007 18:06:12 +0000 http://crookedtimber.org/2007/07/12/the-pure-types-of-legitimate-authority/#comment-203576 Isn't the difference that Elizabeth has two bodies and George W. Bush only one? Isn’t the difference that Elizabeth has two bodies and George W. Bush only one?

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