When the constitution was written the founders were wisely concerned about giving an emotional and uninformed electorate the unguided power to elect national officials. This concern (and desire to protect small state power) lead them to adopt the electoral college as an intermediate body that could temper the people’s preferences with knowledge and wisdom. While that formal system is mostly still in place over the last two hundred some years more and more political power has been devolved to the people without any serious debate about how letting a public only casually familiar with the issues and swayed by strong emotions would affect our nation. I don’t know what a better system would look like but I am becoming more and more convinced that the people at large simply do not have the time, inclination, knowledge or temperament to decide complex issues of law or scientific policy.

The nature of partisan identification prevents most people from even bringing their rational faculties into play. It is no more reasonable to expect most people (not me of course) to objectively evaluate the wisdom, danger, morality, or lawfulness of Clinton’s or Bush’s actions then it is to expect them to objectively rate the intelligence or social worth of their own children. We all know liberals who are willing to excuse Clinton’s obvious deception under oath but claim Alito’s apparently honest mistake in the Vanguard recusal is an unforgivable moral lapse or conservatives who were willing to impeach Clinton for a minor deception in a private case but somehow fail to be outraged at Bush’s deception or Gonzales’s lies under oath about the spying program. We might optimistically try and dismiss these sort of biased evaluations as merely Machiavellian tactics undertaken to further one’s views or party but a recent study employing fMRIs suggests that people evaluate statements by partisan figures without even engaging the critical rational parts of their brain (this is a simplification read the link).

This situation is bad enough when the public is asked to make decisions about simple topics it (mostly) understands, e.g., did Kerry change his position on Iraq. When faced with issues requiring technical knowledge, subtle distinctions, or abstract analysis the situation is basically hopeless. Nothing illustrates this problem as clearly as the public reaction to Bush’s domestic spying program. Despite the belief by an apparently strong majority of independent constitutional experts that the domestic spying program is unconstitutional recent polls reveal that something like 50% of the populace does not believe Bush acted wrongly. Though the arguments Bush offers in his defense are astonishingly weak and often deeply misleading if one is emotionally predisposed to look for a justification they provide an easy excuse that lets people stop looking and thinking and feel indignant about ‘democratic’ criticism.

I am currently listening to Gonzales’s testimony before congress. Though Senator Specter oddly refused to put him under oath he is being amazingly disingenuous and coming up with ridiculous reasons to avoid answering questions. I particularly liked when he said that the reason the revelation of the NSA program endangered national security was that it reminded terrorists we were listening to them. Also good was when he said that his claim during his nomination hearings that the administration would not pursue wiretapping in violation of criminal statute only meant that the administration would not pursue wiretapping in violation of constitutionally valid criminal statute, i.e., he was stating only the trivial fact that the administration would claim to have constitutional authority to do whatever wiretapping it actually undertook. However, what was particularly egregious was his continued invocation of Clinton’s search of the Ames residence.

This claim has been a key plank of the republican defense. However, this situation has been repeatedly documented as NOT HAVING BEEN ILLEGAL AT THE TIME. For the first time I was actually quite impressed with Feinstein in these hearings for demolishing this fallacious argument as well as the related claim that Clinton’s attorney general argued for the same authority as Bush is claiming. Clinton’s administration simply claimed the right to conduct foreign intelligence searches in absence of congressional regulation not in violation of it. In fact I have actually been positively impressed by most of the congressmen in this hearing. Sure the republicans have been helping the administration throw up smoke screens but even they have been demanding to know (though Gonzales evades the questions) how there can be any limit to presidential authority under the administrations argument. All the congressmen, republican or democrat, seem to find the AUMF argument just laughable.

I’m just at a complete loss as to what could be done about this issue. It doesn’t seem to matter that Gonzales’s arguments are totally without merit and most of them are just laughable or simply misleading. No amount of legal experts weighing in on the other side seem to make the slightest difference. The citizens at large are either blinded by partisan support or simply not willing/able to evaluate the arguments in detail. Many people just don’t seem to understand the difference between the legality of the president’s action and the wisdom of allowing this sort of wiretap. I, like many congressional leaders, think this sort of surveillance may be justified but this sort of distinction seems lost on much of the public. If they couldn’t understand Kerry’s position that the president should have had the power to wage war on Iraq (so he could compel compliance) but he was wrong to use it I don’t see how we can hope they will deal sensibly with this sort of issue.

I simply don’t think our form of government is able to deal with this sort of situation. When Andrew Jackson ignored the supreme court order and moved the indians our institutions were unable to stop him and I see little reason to think things will be different in this situation. I would like to believe that some form of structural reform is possible to remedy this defect but frankly I don’t see how.