All human relationships depend on trust. Yet paradoxically, I start with this premise: perhaps the single most dangerous—subtly dangerous—words in the English language are “trust me.” Trust has to be earned. It cannot be demanded. Too often, especially in politics, those who demand our trust do so to quiet opposition or to stifle cross-examination. So beware: those who ask for trust can betray trust. Unsupervised, they can act in their own self-interest, while mouthing pieties of the greater good they claim to serve.
Harnessing, and constraining, self-interest in the public sphere poses a never-ending challenge to lawyers of all political stripes and persuasions. The poet Juvenal hit the nail on the head when he asked this question: “Quis custodiet custodies?” Who guards the guardians? It is one of those great questions of human life that are easy to pose but very hard to answer.
Some 20 years ago, I spoke at the plenary session of the annual meeting of the American Association of Law Schools. Time was short; more than a thousand people had to leave on time to make way for another scheduled event. The panel moderator impressed on us the importance of the time constraint: twelve minutes per person. His daughter would hold up cards to remind us that time was winding down. Sure enough, with a bit of grumbling, we all obeyed his stern injunction. But when the moderator rose to speak, lo and behold, his daughter’s cards were nowhere to be seen.
Countless incidents like this remind us that it is imperative to develop a system of political arrangements that gives no one person the final say. Indeed, the one feature of the United States Constitution that most accounts for its success is its commitment to the twin principles of separation of powers, and checks and balances. Two examples: a court may strike down a piece of legislation as inconsistent with some structural or substantive provision of the Constitution. But it cannot enact its own law. The president may veto particular legislative acts, but the veto is subject to congressional override.
One conspicuous feature of the modern administrative state is its dismissive attitude toward this system of separated powers. This position resonated strongly with the Progressives: Woodrow Wilson regarded that separation as a “grievous mistake” that dampened the ability of the government to do good. And so it does—but by the same token it dampens its ability to create mischief.
On domestic matters, I take issue with Wilson’s condemnation of the separation principle and the move to bigger government. It’s not because I think that private parties are always trustworthy. Trust me, they’re not. I do so because I think that the easiest way not to have to trust people is to have someone else to turn to.
The hardest questions of domestic policy often turn on the regulation of legal or natural monopolies. In that setting, the option to go elsewhere comes at a very high price—doing without some essential service altogether. But even here we divide powers: Congress or the states can regulate rates to see that the monopoly does not exploit its customers. But, at their best, the courts step in to see that Congress does not expropriate the invested capital of the regulated party.
The question of trust and political power plays out more dramatically on matters of national security, domestic and foreign. Now the stakes are higher. Government is defined as a monopoly of force. There are no competitive solutions waiting in the wings. And this state monopolist has more than the power to raise prices that reduce consumer welfare—this monopolist has direct control over the lives, liberty, and fortunes of millions of individuals.
On this score, I am pleased that many Progressives who have extolled unitary government power on domestic issues have had a change of heart. They have returned to our constitutional roots by stressing the importance of checks and balances in all matters of national security.
I do not wish here to comment on basic foreign policy challenges. These leave much room for passionate disagreement. But I would like to take this occasion to say how troubled I was at the ramshackle procedures that the president, with either the acquiescence or the cooperation of Congress, put in place to deal with the surveillance of electronic communications. I am even more distressed with the restrictions on the right of individuals in government custody to challenge their confinement by writ of habeas corpus.
In both contexts, the response “trust me in times of peril” should be rejected. I am therefore pleased to see that the Bush administration, under pressure, is backing off from asserting an unreviewable, independent power to wiretap. It now seems to acknowledge the procedures that Congress articulated in the Foreign Intelligence Surveillance Act of 1978. And I am equally pleased that new legislation is working its way through Congress to undo the damage to our nation that was wrought by the Military Commissions Act of 2006, on which I have been privileged to weigh in. As of now, Congress has removed all semblance of independent review to persons confined, often for questionable reasons, in Guantánamo and elsewhere. With bipartisan support, we may be able to restore the traditional protections. And if the political solution does not work, my hope is that the Supreme Court will decide, as I think it will, that incarceration without end requires some hearing before a neutral party.
I hope that the tradition of distrust that helped make this nation safe and free will renew itself in these and other areas. And I hope that all our graduates from this great law school will take this lesson from our recent history. Individual liberties and government power are in constant tension. It is the responsibility of us all to think hard and act boldly on matters that have such a strong impact on the common good.
