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Il y a dans le pouvoir quelque chose qui fausse plus ou moins le jugement. Les chances d’erreur de la force sont multipliées que celles de la faiblesse. La force trouve ses ressources en elle-même. La faiblesse a besoin de raison. Toutes choses égales, il est toujours vraisemblable que les gouvernants auront des opinions moins justes, moins saines, moines impartiales que les gouvernés.
There is something about power that distorts judgments more or less. The chances that a powerful person will make an error are much greater than those of a weak person. Power has recourse to its own resources. Weakness must draw on reason. All other things being equal, it is always true that those who govern have opinions which are less just, less sane, less impartial than those whom they govern.
–Benjamin Constant, Principes de politique applicables à tous les governements (1806-1810) in Étienne Hoffmann, Les «Principes de Politique» de Benjamin Constant (1997), p. 72 (S.H. transl.)(h/t Stephen Holmes)
Society assumes the validity of judgment of prosecutors and a presumption of guilt often comes to supplant in fact the presumption of innocence that the law formally charges. They wouldn’t have prosecuted this man if he weren’t guilty of something is a common jury-room supposition. But the institution of the jury and the presumption of innocence are valuable tools to offset the power given the state and the reasonable prospect that, left unbalanced, it will produce faulty judgments about guilt and innocence. In his important study based on the experiences of the French Revolution, Benjamin Constant drives this point home. The weak-minded assume that those who hold political power are equipped with tools that allow them to carefully measure the guilt or innocence of men and act in the protection of their fellows. The more penetrating and critical observer knows that those in positions of power are much more likely than their fellow citizens to exercise warped judgment, essentially, to turn the criminal justice system into a vehicle to protect themselves and their exercise of power. Raison d’état will excuse their own crimes and failings, but the great compendium of criminal law will always offer up a clause or two which their political foes have violated.
Constant musters many incidents from the history of the revolution to make his point, but few are more compelling than the trial of Georges Danton, Camille Desmoulins and a dozen others in 1794. They were the “indulgents” who had preached moderation in the face of Maximilien Robespierre’s bloody excesses, the delirium tremens of the revolution. And for Constant nothing was more essential than understanding the political manifestation of that frenzy—he saw in it the birth of a new era, and also a nightmare. Constant examines in detail how the tribunals were slowly denuded of the procedural balances once thought the fruit of the revolution—those charged were political enemies (ennemis du peuple), it was essential to silence them, degrade and humiliate them. The tribunals were to serve an essentially political function, as political theater. Constant offers the inevitable conclusion—those procedural niceties involving evidence, public access, the right of examination and the right to present an aggressive defense could not possibly be more essential. They can insure that the tribunals serve justice, and not the political whim of the powerful. Hence the emphasis on proper process and his juxtaposition of the Anglo-Saxon tradition of rights grounded in the rule of law and fair process as the alternative to the increasingly illusory “inalienable rights” of the Jacobins.
Barack Obama’s pledge to close Guantánamo rested on a recognition—shared by religious and political leaders around the globe—that a manifest injustice had been wrought there. The numerous and indefatigable efforts to undermine his pledge rest ultimately on much the same recognition—coupled with a sense of political vulnerability that goes with the exposure of gross injustice. Mass efforts are launched today to preclude meaningful trials in federal court—principally because of fears of the evidence likely to emerge in those trials, and to channel federal courts cases into a single appeals court notorious for its zealous and injudicious defense of the excesses of the politicians who appointed it. And enormous efforts are underway in Congress—in measures proposed by John McCain, Lindsey Graham and Joe Lieberman—to skew the entire process in favor of the prosecution, to put a muzzle on defense lawyers and to mark as radioactive evidence which would reflect poorly on the jailers (or more particularly, the shadowy political hacks who manipulated the process).
Just as in the era of Robespierre, the argument is advanced that these measures are essential to the national security. Then as now, this claim is credible to a population riven with unreasoned fear, and likely to appear hypocritical to those who assess it with a measure of objectivity. This does not mean that those facing charges are political martyrs like Georges Danton, however. Some are serious terrorists and criminals, whereas others are guilty simply of the “crime” of being in the wrong place at the wrong time. The point of the present exercise is simple: to credibly and correctly make a distinction between these two groups. Just as in the age of Robespierre, the cry for “special procedures” masks a fear that the weakness of the charges which are being brought will be revealed–are they charges likely to disintegrate when questioned, challenged and fairly exposed to the light of day? But what is the ultimate value of convictions secured using such disreputable tactics? They are unlikely to settle the question of guilt in the minds of most observers. But they will undermine confidence in America’s commitment to justice.
Listen to the Marche au supplice (March to the Gallows) from the fourth movement of Hector Berlioz’s Symphonie fantastique, op. 14 (1830):
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."