Opinion: Daily Journal

An Abundance of Discretion

RALEIGH – Two seemingly unrelated events happened Monday: Attorney General Alberto Gonzales defended the Bush administration’s use of wiretapping al Qaeda suspects without a warrant and a new analysis of North Carolina’s law on eminent domain concluded that it threatens private property rights.

The common dominator is discretion – too much discretion, in some people’s minds, exercised by government officials.

It does not take a conspiratorial or panicky nature to fear government discretion. In theory, it might make sense to entrust politicians with enough leeway in their formal powers to adjust to changing circumstances or emergencies. After all, in a representative form of government, the voters have a recourse if their elected officials use excessive force to accomplish a legitimate end – or, worse, use governmental force to pursue an illegitimate end.

But in practice – by which I mean not just recent experience in North Carolina, or the United States, but also centuries of prior experience in polities around the world – it is quite evident that elections alone are not sufficient guarantors of government restraint or respect for individual rights. Constitutions, both written and unwritten, serve to set parameters on governmental power. Even if a majority of elected officials at a particular point in time believe that individual rights must yield to some shared version of the common good, constitutional principle may call for restraint.

It’s been said many, many times, but is worth repeating here: effective constitutions are not written to made government more streamlined and quick to act. They are written to ensure that separate branches and levels of government collide, and that most decisions are made deliberately, if at all. Paralysis isn’t the goal. But restraint is.

Restraint can, of course, be dangerous in some situations. That’s why the idea of giving political leaders some discretion in the use of government power is undeniably attractive in those situations. Our system gives elected chief executives the ability to deploy and retain authority over military units. In true emergencies, they have other powers. And governments at all levels can use force to overcome the objections of individuals when there is no other way to accomplish a legitimate public interest. Few people doubt the wisdom of this, though they disagree about the situations to which these discretionary powers apply.

In the domestic-spying case, I tend to side with the Bush administration, albeit warily. As I understand it, no one doubts that the president has the inherent right as commander-in-chief to assign personnel to spy on the nation’s enemies abroad without obtaining a court’s permission. It would be absurd to suggest that the president can order a terrorist killed but can’t order his phone tapped. The difficulty lies when a suspect communicates with someone within the United States. I think the world of modern communication makes it impractical to operate as if Sarah were still operating the switchboard in Mayberry.

In the eminent-domain case, however, the case for discretion is far weaker. As JLF Policy Analyst Daren Bakst explains, the statutory authority for North Carolina localities to take “blighted” land is capable of being abused in the aftermath of the Kelo decision. “North Carolina law needs a narrow definition of blight, or it will be open season on private property,” he said. “Right now its laws are so vague they are open to all kinds of interpretation.”

The risks of discretion seems to adhere more to issues of economic development than they do to our very survival.

Hood is president of the John Locke Foundation.

Update: Welcome, left-leaning readers. I understand from your emails that this piece has been bouncing around the blogosphere, for which I am always grateful. I welcome challenge, of course, but one point you might want to avoid repeating is that regardless of the wisdom of the NSA spying program, President Bush should have sought congressional action to change the FISA statute. I wasn’t commenting on the specific way that Bush went about getting the policy in place, which deserves a column by itself (and about which I am critical, at least of the administration’s clumsiness) but I will say that no statute can trump the constitution. If you believe being commander-in-chief under the constitution means being able to spy on enemies during wartime without having to seek a court’s permission, as I do, then no statute enacted by Congress can take away that power. It was not legally required, in my view (and according to a number of constitutional scholars, conservative and liberal), to seek a revision of the FISA statute. But it would probably have been wiser even given some risk of disclosing information to terrorists about our methods and practices.