Damoclean Democracy and the Executive


Cross posted from Ascend of Asheville.

As of 2005 there were 737 US military bases in other countries around the world. Every two years the Executive branch of the US government submits about 4000 civilian, and about 65,000 military appointments to Congress for positions within the government. Most of these positions are within the Executive branch. Essentially, the vast majority of the Executive is military in it’s origin, purpose and/or personnel.

This represents, to borrow a phrase from a famous General turned Executive, a vast military/executive complex, with power that arises in many ways from a single admonishment in the Constitution that the President “take care that the laws be faithfully executed”.

The framers of the Constitution wished to avoid a capricious government that was subject to the whims of the population (too much Democracy) or prone to abuse by dictators (too little Democracy). By aiming for “just right” as they understood it, they created a system approaching genius, but they also created a Damoclean situation that has deteriorated over time.

Today in a speech at the Northwestern University Law School, Attorney General Eric Holder inflicted serious damage to the single hair holding the sword over our Democracy. He made a graceful, intelligent intellectual leap in doing so. Unfortunately he was leaping towards, not away from, existential peril when he said:

“Due process and judicial process are not one and the same, particularly when it comes to national security,” … “The Constitution guarantees due process, not judicial process.”

Now, if we go over to our good buddy Wikipedia, we can see the extent to which this offends the traditional definition by simply checking the definition:

“Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person. Due process balances the power of law of the land and protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law

Inasmuch as the interpretation of law and the redress of legal claims is the purview of the Judiciary, it would seem that prior to today the two terms were not separable. This speech marks the departure from that view.

It is a common belief that we live in precarious times, with threats to Democracy coming from every angle. Responding to genuine existential threats is completely valid, and it is true that extreme measures are sometimes necessary. But with this radical redefinition of terms, the Executive branch under Obama has gone much farther than even George Bush and Alberto Gonzales did to push the power of the Executive beyond the reach of Democratic processes, and subject America to the whims of our future’s now more probable tyrants. It is not necessary to re-write or destroy the Constitution if one is capable of redefining it’s terms.

By carving out a conceptual separation between “Due” process and “Judicial” process, and logically separating the two, while still maintaining that the former is legal, they have laid out the basis for the absurdly undemocratic proposition that all law is conditional, and that the faithful execution of the law is open to Executive interpretation. Conditional ethics, conditional terms, and variable procedures based on the personalities involved in the decisions of the day. There need be no oversight, no court of final appeal, no judge, no jury, in essence no limits.

When this happens the sword falls and Democracy is dead. Emergency powers become standard operating procedure, and it is only a matter of time before the immense soft gray porous line between Democracy and Tyranny is irreversibly crossed.

I suggest you go and read the speech. I did. It will come in handy as a reference point when we try to reason with our grandchildren that the sorry state of the world is not really our fault.


  1. Ascend of Asheville says:

    For more analysis of the speech and it’s bad no-goodness, go check out Attackerman: