The Bush administration is a case study in how a small elite representing minority interests can seize power and then use fear and nationalism in a political mobilisation to achieve authoritarian goals. When he came to power in 2000 Bush had no democratic legitimacy. He had lost the popular vote to Al Gore and had been given the presidency by a questionable Supreme Court decision to stop a vote recount in Florida. For manyconstitutional scholars, the Bush victory amounted to a “constitutional coup, an unlawful accession to power” (1).

Although Al Gore conceded to Bush to avoid a constitutional crisis, the presidency was tainted by illegitimacy. Given the balance of forces – the Republicans lost control of the Senate in July 2001 – many analysts expected political paralysis, hence a modest presidency in domestic and international policy.

 

The opposite happened. From the start the Bush White House strove to remove constraints on its sovereign action. In the domestic sphere, rather than governing from the centre as expected, it engaged in adversarial politics designed to polarise society, and launched a sustained effort to reduce the rights secured by women and minorities during the 1960s and 1970s. Karl Rove, Bush’s political adviser who has now resigned, invented this strategy to mobilise and unify conservatives, fracture the Democrats and create a permanent Republican majority.

 

Internationally, the Bush administration began the methodical deconstruction of the rules-based order and of the institutions of global governance. In the months before 9/11 it announced its intention to withdraw from the 1972 Anti Ballistic Missile Treaty, refused to sign the Comprehensive Test Ban Treaty, arranged the failure of the additional Protocol on Biological Weapons that was due to be signed in July 2001, and sought to block the creation of the International Criminal Court.

 

There is continuity between these early actions and the attack on the United Nations, international humanitarian law and domestic civil rights after 9/11. The double agenda of the ultranationalist right was much amplified after the attacks, which lifted usual domestic constraints and opened the way for an extraordinary concentration of power and the drive for empire. Soon after 9/11 the former defence secretary, Donald Rumsfeld, said that it had created the “kind of opportunity offered by World War II to refashion the world” (2).

 

Since the attacks, the administration has claimed limitless powers to overturn international law and domestic constitutionalism. Attorney General Alberto Gonzales – who, like Rove, was forced to resign this September – was a key figure making the case for unbounded executive power. As White House Counsel from 2001 to 2005, Gonzales wrote the infamous torture memos, arguing that the president had the inherent authority to override international law.

 

The domestic and international dimensions of the authoritarian effort are inseparable: the war in Iraq, framed as part of a timeless and boundless global war on terror, sustained the White House claim for permanent emergency powers at home.

 

The departure of these figures highlights the weakening of the administration, which since November 2006 has lost control of both houses of Congress. Yet the White House still holds critical levers of foreign and security policy. It has suggested that the US will remain in Iraq for 50 years and has recently succeeded, yet again, in having Congress pass a bill that violates basic freedoms (3). ________________________________________________________

 

(1) Jack Balkin, “The die is cast”, Balkinization, 17 March 2003, balkin.blogspot.com/2003_03_16_balkin_archive.html. See also Jack Balkin and Sanford Levinson, “Understanding the Constitutional Revolution”, Virginia Law Review, vol 87, no 6, October 2001; and Bruce Ackerman, “Anatomy of a Constitutional Coup”, London Review of Books, vol 23, no 3, 8 February 2001.

 

(2) Interview in The New York Times, 12 October 2001.

 

(3) The Protect America Act 2007 was passed by both houses of Congress this summer; it gives the government wide powers of surveillance of information and terrorism without judicial control.

 

 

 

Original text in English

 

 

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