An Existential Threat to Democracy

A federal judge says that George W. Bush has broken the law:

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III;

The timing of this announcement couldn't be more convenient from my standpoint, as I've recently been advised that there is an "existential threat to Western democracy," and that it's name is Islam.

That may be true. The thing is, there are many existential threats to democracy. Human nature is an ever-present one, as the Founding Fathers recognized. And Carl Schmitt’s critique of democracy’s self-defeating tendency is, as I’ve mentioned elsewhere, a hard one to answer (even if his solution is appalling to anyone with a conscience).

Pandemic disease, if severe enough, certainly poses an existential threat to democracy (which you'd think would make public health a vital component of national defense). The influence of corporate money in elections and law-making can destroy democracy, too. So can demagoguery, and lying people into war.

But of all these threats, the arbitrary use of power is the worst, and - because recognizing it requires a country to look deeply at itself rather than superficially at an outside enemy - the hardest to face.

All this is old news, of course. Here's Benjamin Constant, writing way back in 1813:

When an individual suffers without having been found guilty, anyone who has some intelligence believes, with good reason, that he is threatened too, because all guarantees have been destroyed. People keep silent, because they are afraid; but all transactions are affected. The earth trembles and no-one walks without dread.

In our large societies, in the midst of relations which are so complicated, everything hangs together....A single barbarous law determines the character of the entire legislation. No just law can remain inviolable beside one single illegal measure. One cannot refuse liberty to some and accord it to others. Imagine a single punitive measure against men who have not been convicted of a crime, and all liberty becomes impossible. The freedom of the press? It could be used to move the people in favour of victims who are perhaps innocent. Individual liberty? Those whom you pursue could take advantage of it to escape you. The freedom of industry? It could offer resources to the proscribed. It will thus be necessary to hinder them all, to destroy them altogether.

Men would like to compromise with justice, to go beyond its bounds for one day, to tackle one obstacle, and afterwards to return to order. They would like both the guarantee of the rule and the success of the exception. Nature is opposed to this: its system is complete and regular. One single deviation destroys it, in the same way as, in an arithmetical calculation, an error of one or of a thousand falsifies the result equally.

Of course, that was then, and this is now. How was Constant to know that 9/11 would change everything?

UPDATE: From the decision:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

Pretty radical stuff, eh?