The first and most obvious irony is the amount of space devoted to attacking someone else for failing to grapple with the supposedly most important questions of executive power in warmaking. If Lewis’ perspective is trivializing, then what can we say about, first, a mere perspective on that perspective, and, second, a defensive perspective on a perspective on that perspective? Those really most important questions are by now fragmentary ideologems dimly visible on a horizon on a horizon on a horizon.
The blogger seems to want to pretend he has the answers, but his own performance suggests the opposite, since the other irony is that Lewis’s answer or kind of answer – right in the foreground, in plain sight – will turn out to be the only answer on those really most important questions that we will ever receive.
The question of the warmaking powers of the president in constitutional role as Commander in Chief has never been settled and probably cannot be settled in its entirety. Any attempt to settle the question would imply a three-way confrontation between the Supreme Court, the Congress, and the President – a constitutional crisis, in short, and not just as an abstract problem for legal philosophers, but as a catastrophe in waiting. That was the reasoning underlying Bush v Gore, another crisis of the system and its constitution of executive power. The infirmity of that decision was in the incapacity of the majority to frame its argument other than as a pure exception: The oracle of originary liberalism, the voice of the popular sovereign meant to speak the rule of law, instead spoke lawless necessity. Whether it was mere irony or the further working of that same necessity, it put in place a presidency that, under the pressures of only apparently unrelated events, became a presidency of the exception: all-encompassing military authorization, pre-emptive war, torture and extra-legal detention, emergency economic rescue.
The successor administration has at best only partly returned to an image of normalcy, but the internal processes of governance, the essential extra-legality and illiberalism of power, have been exposed to the light. We know, though some of us struggle to suppress the recognition, that we are hostages to the decision, including our own collective decision on one “decider” as opposed to another. Articles like Lewis’, if they reinforce our confidence in the existent rather than the ideal executive, help us to accommodate ourselves to a void in the law and its effects: The existence of this void can serve our needs; or it can be hemmed in politically – which is to say partially and provisionally; or it can be survived until the day it happens to kill us – but it cannot be legislated or reasoned way.
So we can further expand our general observation on liberalism – including the liberalism that advertises its libertarian purism or its republican virtues or its partisan conservatism, with or without the tri-corner hats and Minuteman costumes: As we know, it has nothing interesting to say about these issues. It does, however, very much like to pretend that it does.