Worshipping the Law While Denying Its Spirit

The English scholar C. S. Lewis is best known for his Narnia fantasy series, but it’s one of his works of popular theology, The Screwtape Letters, that weighs heavily on my mind these days.

Screwtape is written as a set of letters from a senior demon to an ordinary tempter, who is seeking to reap a human soul for his master below.

In Letter VII, Screwtape, the senior demon, reveals hell’s long-term strategy for the modern world: to produce people who do not believe in God but do believe, in some vague way, in magic: “If once we can produce our perfect work—the Materialist Magician, the man, not using, but veritably worshipping, what he vaguely calls ‘Forces’ while denying the existence of ‘spirits’—then the end of the war [against God] will be in sight.”

That image—of those who worship force while denying spirit—has haunted me ever since; it epitomizes the dilemma of a human society in moral free fall because it has, without knowing it, abandoned belief in its own pretended first principles.

In the age of Donald Trump, we are seeing a legal incarnation of Screwtape—the lawless legalist who worships the law as force but denies the existence of its spirit.

Donald Ayer: Why Bill Barr is so dangerous

All of which brings me to Attorney General William Barr and his recent address to the Federalist Society’s annual meeting, on November 15. Most press coverage of these remarks has concentrated on their snarling partisanship—on the degree to which Barr is willing to attribute the derangements of our society to a “left” that is “engaged in the systematic shredding of norms and the undermining of the rule of law.”

The speech is a useful outline of a legal doctrine developed by some on the legal right in the years after the ascent of Ronald Reagan. As Barr explains it, the argument begins with the idea that “more than any other branch,” the presidency “has fulfilled the expectations of the Framers” of the Constitution. These wise Framers, Barr contends, uniformly desired a powerful presidency that could “handle essential sovereign functions—such as the conduct of foreign relations and the prosecution of war—which by their very nature cannot be directed by a preexisting legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment.”

But in the 21st century, he contends, “the deck has become stacked against the executive … More and more, the president’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.” Congress has begun to “drown the executive branch with ‘oversight’ demands for testimony and documents,” which are “plainly designed to incapacitate the executive branch.” Congress does not defer to claims of “executive privilege” as it should; instead, it is “increasingly quick to dismiss good-faith attempts to protect executive-branch equities, labeling such efforts ‘obstruction of Congress’ and holding Cabinet secretaries in contempt.”

Barr finds it equally appalling that “Congress has happily created a regime that allows the public to seek whatever documents it wants from the executive branch at the same time that individual congressional committees spend their days trying to publicize the executive’s internal decisional process.” Barr is referring to the Freedom of Information Act, passed by Congress in 1967, which has become a settled feature of our system, allowing citizens to determine what information is held on them and also to monitor how the executive branch is following the law and its own rules. No conservative so far has proposed repealing this foundation of our current system, but Barr’s speech suggests that may be a matter for a second Trump term.

Congress is far from the only offender, Barr says. His ire is also directed at impudent federal judges:

First, the Judiciary has appointed itself the ultimate arbiter of separation-of-powers disputes between Congress and [the] executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. Second, the Judiciary has usurped presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the executive’s in areas committed to the president’s discretion, or (b) by assuming direct control over realms of decision making that heretofore have been considered at the core of presidential power.

Adam Serwer: The dangerous ideas of Bill Barr

The first indictment attacks constitutional judicial review by independent courts, which on occasion have held that the executive branch has usurped power assigned by the Constitution to Congress. These disputes should be settled between Congress and the executive without any judicial interference, he says. (Bear in mind that he has already sought to disable congressional oversight.)

The second transgression is in courts’ independent exposition of statutes, or, as Barr puts it, “expanding both the scope and intensity of judicial review.” This is a settled practice by which courts measure executive actions against the statutes giving the president authority to take them. Presidents have very little “inherent” authority, and not very much direct textual authority, either. Most of what they do is “execute” statutes, using powers assigned by Congress.

That is what was at stake in Trump v. Hawaii, the “travel ban” case, in which the courts examined whether the president had followed the Immigration and Nationality Act by proclaiming a bar on entry into the U.S. by nationals of mostly Muslim nations. Trump eventually prevailed in the Supreme Court, but Barr is not a gracious winner. There should have been no case at all, he argues. Judges are out of bounds in even thinking of measuring executive claims against the statutes executive officials seek to employ: “Courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the president’s constitutional prerogatives.”

Let’s assemble the picture Barr claims the Framers drew. At its center is one individual, the president. Congress cannot call a president to account by effective oversight, nor can it require a president’s subordinates to explain their decisions. The public must have no statutory right to examine executive documents—even under a statute that, like the Freedom of Information Act, provides exemptions for many categories of internal documents. The courts cannot step in when the president uses his authority to circumvent or negate the constitutional authority of Congress. And the courts cannot examine whether his actions comport with statutes—statutes he is bound by oath to “faithfully execute.”

What this means, in practical terms, is that the president not accountable to anyone at all. There are not three co-equal branches; there is a president who is the source of authority and two subsidiary agencies, called “Congress” and “the courts,” which exist to facilitate presidential decisions. The president is not above the law; the president is the law.

This vision is a recent invention, a version of the so-called unitary-executive theory. Unitary theorists seize on the anodyne notion that in the U.S. government, voters elect only the president and vice president in the executive branch (unlike in many states, where the attorney general, the secretary of state, and various officials such as the land commissioner are elected as well). From that simple fact, two generations of able minds and agile pens have spun the fable that the Framers intended a president to be the kind of dictator Barr describes.

That ideological cohort by no means includes the entire American right—many parts of it remain faithful to a genuine vision of law. On Thursday, the conservative group Checks & Balances issued a powerful statement signed by a dozen prominent conservatives. It said, “Barr’s view of history, including his claim that the Founders shared in any respect his vision of an unchecked president, and his assertion that this view was dominant until it came under attack from courts and congress a few decades ago, has no factual basis.”

James Madison would not recognize this vision, but Screwtape would. Its triumph would mark the end of any “American exceptionalism,” replacing the U.S. experiment with the garden-variety authoritarianism that has been tried repeatedly in Buenos Aires and Bishkek, Madrid and Manila.

Like Screwtape’s materialist magician, Barr, the lawless legalist, embodies force without spirit; constitutionalism without liberty; democratic form without self-government. For two generations, he and people like him have been working to bring this vision to reality. They are on the verge of victory.