Blog: On Dershowitz's Argument

On Dershowitz's Argument
On Dershowitz's Argument
Date: 2018-Feb-11 04:01:03 EST

In these interesting times, we've had a lot of discussions on things that are pretty bad markers for the political health of our nation; we've had to look into what is impeachable, how much breach of decor is acceptable, why we have decor in the first place, and a number of other things. I've chatted on the first point with a few people who have a stronger legal background than I (I've read law books for fun, but mostly out of an interest in political philosophy and engineering), and I've come to see an interesting discussion on some points Alan Dershowitz has tried to make that when a particular topic is within presidential discretion, that discretion is absolute. The opposing view being that there are a number of reasonable implicit constraints in our system.

On first glance, this is both a large chasm in how different people might think about things and a difficult to judge debate. However, after chewing on it for awhile, I've come to believe that Dershowitz is wrong on this. The reason being that were we to consistently apply his line of reasoning on it, it would both be bad public policy and that the principal reason it's bad is it effectively neuters the idea of misuse of authority. It may be that a governor has broad discretion over a topic and can generally do what they like, and it may also be that people can generally accept payment for all sorts of things, but it does not follow that a governor can accept personal funds to grant people exemptions for laws. And it is undesirable for the law to need to spell out the endless permutations of similar kinds of corruption for it to consider them illegal. Our common law system is built on the idea that legal challenges, common sense, and debate are reasonable ways to deal with novel challenges to our institution, rather than explicit codification of wrongs. And while Dershowitz's concern about criminalising Trump's politics is valid, it doesn't work to apply that concern so broadly that challenges based on reasonable (if implicit, as per our traditions) limits to broad authority are prevented.