The idea of a unitary executive is rooted in the thinking of German legal scholar and political philosopher Carl Schmitt, who held that all executive power — even in a democracy — is essentially dictatorial. Presidents, he argued, should recognize a spade is a spade and dig in, seizing the powers they need to get their jobs done.
“If the constitution of a state is democratic,” Schmitt held, “then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.”
For Schmitt, the power of the executive to decide what constitutional provisions to ignore was the essence of leadership. The power to rule is the power to make exceptions to the law.
Schmitt, who served the Nazi Party as a lawyer and theoretician, defended in court and developed for the Nazi intellectual classes the rationale for Adolf Hitler’s seizure of power and subsequent civil terror tactics.
After the end of World War II, Schmitt was detained, questioned, and subject to house arrest by American forces. He served a year in an internment camp, but was spared harsher retribution, probably because the more extreme elements of the S.S. found him insufficiently anti-Semitic and opportunistic. Schmitt’s belief that German law should be cleansed of “Jewish spirit,” and his brief that the Nazi political massacres were “administrative law of the highest order,” apparently did not qualify him for true Aryan brotherhood.
Schmitt lived until 1985, and in his dotage became something of a guru to thinkers of both the hard right and the new left who shared his distain for liberal-style democracy.
The purest expression of Schmitt’s thinking as channeled by the Bush administration is to be found in former Bush advisor and attorney John Yoo’s defense of the presidential right to imprison without trial and torture political detainees in the name of the so-called war on terror.
Yoo is the brains behind that plan, developing an elaborate justification for torture, something explicitly forbidden by the constitutional prohibition of “cruel and unusual punishment.”
When asked if the presidential power to torture would extend to crushing the testicles of a prisoner’s child in order to get the information sought from the prisoner, Yoo responded: “I think it depends.”
Much depends on the outcome of this national election: the future of our wars in Iraq and Afghanistan; the future of foreign policy with Iran, Russia, and China; the new-term future of the economy at home and abroad.
But the most important and least discussed aspect of this presidential election is the future of constitutional government in the United States. A McCain election would keep this nation on its current path to a presidential dictatorship. Democrat Barack Obama would reverse that direction. Nothing could be simpler or more important.
