[070322casper]{.underline}

Librarian of Congress James Billington:

At the beginning of the 20th century, Congress commissioned the Library
of Congress (the Library) to assemble at the St. Louis World\'s Fair
great thinkers of the world to tell us where the life of the mind was
going to go in the 20th century. One of the stars of that performance
was Max Weber; universally, or I think pretty near universally regarded
as an extraordinary founding figure of sociology, and really of much
else. It's a great pleasure today to have again to the Library of
Congress Dr. Gerhard Casper, president emeritus of Stanford University.
During the fall of last year he was a resident scholar in the John W.
Kluge Center, where we now are, and where he held the Chair of American
Law and Governance.

The Library\'s Kluge Center, as I think most of you know, is a
residential research center that brings together outstanding thinkers
from around the world, and hopefully has them interact with both the
Library\'s collections and with Washington policymakers. This afternoon
we will hear the results of Dr. Casper\'s research and reflections
during his time here, as he discusses the subject "Caesarism in
Democratic Politics: Reflections on Max Weber." I could take up the
entire time reading his bio \[biography\], but let me just refresh your
minds. He\'s currently the Peter and Helen Bing Professor in
Undergraduate Education at Stanford; how great the former university
president goes back to undergraduate teaching. He\'s also professor of
Law and Political Science, senior fellow at the Freeman Spogli Institute
for International Studies. He was president of Stanford from '92 to the
year 2000.

While he was a resident here, he shared experiences about the life of a
university president with the staff of the Congressional Research
Service and Kluge Center scholars and fellows. He initially studied law
at the universities of Freiburg and Hamburg, and earned a master\'s
degree in law from Yale, a doctorate from Freiburg. He has taught in
departments of political science and law schools, served as dean at the
University of Chicago Law School, then as provost at the same
university. He's taught and written extensively in the fields of
constitutional law, history, comparative law and jurisprudence. From
1977 until '91 he was editor of the "Supreme Court Review." Actually,
when I told one of the members of the Supreme Court that he was going to
be here, that particular member was, I think, quite ecstatic.

His books include a monograph on legal realism in '67, an empirical
study of the Supreme Court\'s workload with Richard Posner in 1976,
"Separating Power" in 1977, and "Cares of the University" in 1997 about
his presidency at Stanford. So it is a great pleasure to present someone
who has a richness of experience and still a great vigor for innovative
thinking to share with us his thoughts about Caesarism and the
considerable importance of this concept to Max Weber, and its continuing
importance as we look continuously at the process of our own law and
governance \-- to use the title of the chair that he held here. We\'re
all very pleased and honored to have him. He\'s been willing to come
back from his busy schedule for this presentation, and it\'s my pleasure
to turn the podium over to Dr. Casper.

\[applause\]

Gerhard Casper:

Thank you Mr. Billington. As you just heard, I occupied the Kluge Chair
in American Law and Governance, and that is what the Librarian \[of
Congress James H. Billington\] appointed me to. And so I thought he was
entitled to a lecture on that very subject. He got what he asked for,
though probably not what he hoped for.

\[laughter\]

But we will see. Maybe. Maybe I\'m lucky. My stay at the Kluge Center
was a completely out of the ordinary experience, thanks to the Librarian
\[of Congress James H. Billington\] who issued the invitation, and
thanks to Carolyn Brown and her dedicated and exceptionally friendly
staff. Now, ladies and gentlemen, my lecture will be a bit on the long
side. Therefore, it would be best for you to just relax.

\[laughter\]

There will be moments, there will be moments when you will ask yourself,
"What is Casper up to?" Just trust me, and lose yourselves in the arcane
I shall start out with. Max Weber was born in 1864, and died in 1920 at
age 56. In little more than 30 years, the lawyer turned social scientist
and humanist produced a gigantic scholarly oeuvre that in the words of
Edward Shils, "touched on the deepest elements of the existence of human
societies." Weber was also an extraordinarily engaged citizen and public
intellectual who in letters, lectures and newspaper articles contributed
to the elucidation of contemporary issues. His views can be
controversial, even grating; his political world is not our world. And
in any event, the world we inhabit has greatly changed from his.
Nevertheless, his ideas have continuing utility as we think about our
own historical situation.

In a long and revealing political essay that Weber wrote in 1917, and
about which he said that it could not claim the protective authority of
any science because it dealt with ultimate commitments, Weber made use
of the concept "Caesarism" to characterize the chancellorship of Otto
Von Bismarck after the soberly entitled , I'm sorry. " To characterize
the chancellorship of Otto Von Bismarck after t founding of the German
Empire in 1871. It is this 1917 essay, soberly entitled "parliament and
Government in a Reconstructed Germany" that has led me to my subject.
Why my choice of Caesarism as a topic? The concept was of importance to
Weber, and in reading Weber one cannot help but be struck by the
relevance to our own historical situation of his reflections on
leadership in mass democracies.

His views were complex; had both descriptive and prescriptive elements,
and in part relied on one of Weber\'s most significant contributions to
political sociology \-- the concept of charisma. His arguments about
what nowadays we would call governance are anything but theoretical, as
we encounter Caesarist tendencies and claims in contemporary
presidential politics. Weber\'s views of the concept provides fresh,
primarily sociological perspectives that go beyond the connotations of
the contemporary term "imperial presidency," though of course there is
much overlap. As we shall see, Weber\'s emphasis was on the
plebiscitarian aspects of Caesarism. His motto might have been three
words from Suetonius about the historical Caesar \-- *Conciliato populi
favore*; having won the favor of the masses, Caesar went on.

Weber\'s 1917 essay first appeared in a series of articles for the
"Frankfurter Zeitung" earlier that year. Its reissue Weber prefaced with
remarks about himself. The author who voted Conservative almost three
decades ago, and last voted Democratic is neither an active politician,
nor will he be one. For caution's sake it may be added that he does not
have connections of any kind to any German statesman. What Weber did
have were strong political views about the statesman, political
machinery and constitutional setup of the Wilhelmine Empire as it had
emerged from the unification of Germany in 1871. They focused on
Bismarck, the spiritus rector and first chancellor of the Reich who had
been dismissed by Emperor Wilhelm II in 1890, after the latter had
ascended to the throne and wanted a personal role in determining the
policies, especially foreign policies, of the Reich. In his essay, Weber
concentrated on what he called Bismarck\'s Caesarism, on Wilhelm II's
personal rule, on the rule of bureaucracy and on the role of parliament.

Caesarism is hardly a self-defining term. In the 19^th^ century, first
in France, the neologism became a shorthand for the new plebiscitarian
mass politics, as exemplified by Napoleon III. Theodore Mommsen, the
great historian of Rome, found himself forced to distinguish between the
unsurpassed greatness of the master worker, i.e., Julius Caesar, and its
caricature, Caesarism in the Bonapartism of Napoleon III. The concept
was employed fairly widely in the 19th and early 20th century. One of
its best, best-known invocations is of course by Oswald Spengler in the
"Decline of the West," a book that first came out in 1918 that is more
or less contemporaneous with Weber\'s essay.

In the world history table on political epochs that accompanied the
"Decline of the West," Spengler identified the period from 1800 to 2000
as the period where in the West economic power permeates the political
forms of democracy \-- a word he placed in quotes \-- to be followed in
the year 2000, to be followed in the years 2000 to 2100 by the formation
of Caesarism. The Caesarism that Spengler predicted for the 21^st^
century he described in \[unintelligible\] as increasing primitiveness
of political forms, inward decline of the nations into a formless
population and constitution thereof as an *imperium* of gradually
increasing crudity of despotism.

Since the 21^st^ century is only in its very beginnings, we happily may
forego assessing the accuracy of Spengler\'s prediction. Most
present-day dictionaries too reductively identify Caesarism as
imperialism, dictatorship, absolutism or one-man rule. Weber himself did
not give a tight definition. What he meant by Bismarck\'s Caesarism has
to be mostly gathered from the attributes Weber employed. The first
section of the 1917 essay is entitled "Bismarck\'s Legacy." After a
reference to the greatness of Bismarck\'s sophisticated and commanding
intellect, Weber emphasized that Bismarck had not tolerated any
autonomous power, and he underlined the chancellor\'s failure to attract
or suffer independent political minds, not to speak of strong political
personalities.

Weber stressed the chancellor\'s disdain for parliament, his tendency to
seek cover behind the legitimacy of the monarchy and his preference for
governing with the help of emergency legislation. Bismarck's support of
one man, one vote at the founding of the Reich \-- literally one man,
one vote; of course it was men who were given the vote \-- but everybody
was, every citizen, universally franchised for the first time.
Bismarck's support of one man, one vote at the founding of the Reich, in
contrast to the Prussian class-based electoral system, Weber attributed
to Bismarck\'s demagoguery and his preference for plebiscitarian,
Caesarist solutions.

Initially, we shall think of the following six characteristics as
defining Weber\'s use of Caesarism: plebiscitary elections, disdain for
parliament, relying on the legitimacy of the monarchy for cover,
preference for governing with the help of emergency legislation,
nontoleration of any autonomous power within the government and failure
to attract or suffer independent political minds. As is apparent, Weber
was especially concerned about the atrophy of parliament. A completely
powerless parliament was "the purely negative result of Bismarck\'s
tremendous political prestige," he wrote. This powerlessness of
parliament also meant that its intellectual level was greatly depressed.
The level of parliament depends on whether it does not merely discuss
great issues, but decisively influences them. In other words, its
quality depends on whether what happens there matters, or whether
parliament is nothing but the unwillingly tolerated rubber stamp of a
ruling bureaucracy.

Weber thought that Bismarck had left behind a nation with a political
education far below the level it had achieved earlier, accustomed to the
idea that the great statesman at the helm would make the necessary
political decisions. One of the worst legacies of Bismarck\'s rule had
been the fact that he considered it necessary to seek cover for his
Caesarist regime behind the legitimacy of the monarch. His successors,
who were no Caesars but sober bureaucrats, imitated him faithfully. In
short, Weber accused Bismarck of disguising realities with legal
fictions, of using the monarchy as a cover for his power interests, and
of leaving behind an emasculated parliament and nation that could not
deal effectively with either the kaiser or the bureaucracy.

As far as I can tell, Weber never employed the epithets "Caesar" or
"Caesarist" to Wilhelm II and his personal rule. To the extent that
Weber may have thought a sophisticated and commanding intellect
indispensable, the kaiser simply was no Caesar. Weber took an especially
dim view of the emperor\'s foreign policy pronouncements, after the
latter in 1890 had forced Bismarck\'s resignation. In the 1917 essay,
Weber dealt at length and intensely with the emperor\'s aggressive
statements about foreign affairs, and took Bismarck\'s successor and
their administration, their administrations to task for their failure to
curb these harmful monarchic pronouncements.

Weber\'s most acerbic assessments of Wilhelm II, however, are found in
private letters rather than in published essays. He referred to the
kaiser as a dilettante and a shadow emperor. In a letter to
\[unintelligible\], written at the end of 1906, Weber commented, and I
quote, "The amount of contempt that our nation and \[unintelligible\]
rightfully encounters abroad in Italy, America, everywhere, because we
put up with this régime of this man has in itself become a factor of
first-rate worldwide political importance for us. Anybody who reads the
foreign press for a few months must recognize this. We become isolated
because this man woos us in this manner, and we suffer it and make
excuses for it,\" end quote.

Basically, Weber had concluded that in the modern state the monarch
cannot be a counterforce to the pervasive power of the bureaucrats. And
yet, the monarch may be tempted to govern by himself if he is confronted
only by bureaucrats; that means, if parliament is powerless, as Weber
asserted the German parliament was. The monarch believes that he himself
rules, whereas in fact behind the screen the bureaucracy enjoys the
privilege of operating without controls and without being accountable to
anybody. Flatterers surround the monarch with a romantic halo of power.

Weber thought that the Wilhelmine Empire was characterized by the
interactions of Bismarck\'s Caesarism, a weak parliament, a vain
dilettantish deluded monarch and an ultimately very powerful
bureaucracy. What was missing were responsible leaders who have been
prepared for the task of national leadership in the cause of
parliamentary political struggles. Weber\'s analysis in economy and
society of the essential characteristics of modern bureaucracy in
government and business is among the best-known aspects of his work.
Even people who have never read a word of Weber\'s associate with him
the notion of rational bureaucracy and its rational organization.

The ideal type comprises general rules, jurisdictional areas \-- that
is, functional division of labor \-- training in a field of
specialization, formal employment, hierarchy, written procedures,
efficiency. While Weber considered this European type of bureaucracy an
essential part of the modernization of the state, and therefore
irresistible, he predicted correctly that even the United States would
eventually succumb to it. Weber at the same time saw bureaucracy as a
great danger for political life in general, and for democracy in
particular.

In a modern state the actual ruler is necessarily and unavoidably the
bureaucracy, since power is exercised neither through parliamentary
speeches nor monarchical annunciations, but through the routines of
administration. It is the civil servants who decide on all our everyday
needs and problems. In contemplating future forms of political
organization, Weber asked how any remnants of individualist freedom can
be saved. "After all," he wrote, "it is a gross self-deception to
believe that without the achievement of the age of the rights of men,
any one of us, including the most conservative, can go on living his
life. How will democracy be possible? How will any powers remain that
can check and effectively control the tremendous influence of
bureaucracy?"

For Weber, the most important question of all, however, was raised by
the inherent limitations of bureaucracy. The directing mind, the moving
spirit \-- that of the entrepreneur here, and of the politician there
\-- differs in substance from the civil service mentality of the
official. Or, as Anthony Kronman summarizes, "the threat of domination
by the bureaucratic spirit to the disadvantage of real leaders; leaders
with political ambition and the will to power and responsibility."
Weber\'s views of the powers of the bureaucracies have in many ways been
borne out. However, they are also somewhat overstated, perhaps even for
his own time and his own place. Edward Shils, for instance, has argued
that what Weber had to say about bureaucracy does not present an
adequate account of the growth, vicissitudes, triumphs and failures of
bureaucracy.

Shils saw the considerable expansion of bureaucracy since Weber\'s death
\-- the increase in its size, complexity and the number of its tasks,
and the multiplicity of the interconnections of those tasks \-- as
frequently standing in the way of bureaucracy acting successfully. Be
this as it may, as the Wilhelmine Empire crumbled and the constitutional
monarchy that Weber had originally favored was not any longer feasible,
he became preoccupied with the issue of leadership in mass democracies.
Paradoxically, as Wolfgang Mommsen has pointed out, after 1917 Weber
preached what he had condemned in Bismarck; rule by a responsible
politician on a Caesarist, plebiscitary basis. He concluded that the
only way to establish a counterweight to bureaucracies and organize
political interests was rule by a charismatic plebiscitary politician.

Charisma \-- about which Weber had said that the term must be used in a
completely value-free sense \-- turned out to be highly valued by Weber
after he had, as it were, secularized the concept by freeing it from the
originally religious context, in which charisma signified personal
authority based on actual revelation or grace. The Weberian employment
refers to domination by a concrete individual who enjoys the trust of
the masses. For Weber, charisma was as little alien to modern democratic
suffrage as it had been to the domination of the demagogues in Periclean
democracy. Active mass democratization means that the political leader
must gain the trust and faith of the masses by means of demagogy. "Every
democracy," he writes, "tends in the direction of the Caesarist model of
selection."

In economy and society, Weber singles the United States out as having
gone all the way. Acclimation by the ruled may develop into a regular
electoral system with standardized suffrage. It is a long way to such a
system. As far as the election of the supreme ruler is concerned, only
the United States went all the way. And there of course, the nominating
campaign within each of the two parties is one of the most important
parts of the election business. In the 1917 essay, Weber put it even
more strongly. Every kind of direct popular election of the supreme
ruler \-- and beyond that; every kind of political power that rests on
the confidence of the masses, and not of parliament \-- lies on the road
to these pure forms of Caesarist acclimation. In particular, this is
true for the position of the president of the United States, whose
superiority over parliament derives from his formerly democratic
nomination and election.

In the fall of 1904, Weber had participated in the Congress of Arts and
Science in St. Louis, and had made use of this opportunity to travel
around the United States for more than two months. He probably arrived
in America with a general understanding of its political system, though
his overall views of the importance of political parties and party
machines as key institutional ingredients of plebiscitary democracy were
influenced by what he saw that year. While Weber placed his emphasis on
party machines and the presidency, he paid scant attention to the
separation of powers, and especially the roles of Congress and the
courts. A hundred years later this choice seems more perceptive than may
have been justified at the time, as does his stress on the inevitability
of demagoguery in elections.

I\'m tempted to see more than a mere coincidence between Weber\'s
emphasis on the plebiscitary aspects of American political life, and the
fact that the year of Weber\'s travels in the United States was an out
of the ordinary presidential election year. He did not return to Germany
before December 1904. In June the Republican convention in Chicago had
by acclamation chosen Theodore Roosevelt as the Republican candidate for
president, and Roosevelt was subsequently elected by a sweep of all
northern states. Weber\'s references to the United States, Weber\'s
references to the United States read frequently like references to the
issues and transformations of the Progressive Era. While I\'m not aware
of any express mention of the 1904 election, Weber does refer in
"Economy and Society" to Roosevelt\'s independent 1912 campaign, after
he had failed to gain the Republican nomination, in terms of "a conflict
between the charismatic hero and the mundane power of party
organization."

What the present day official biography of Theodore Roosevelt on the
homepage of the White House considers significant about Roosevelt is
quite intriguing in this Weberian context; you probably don\'t know that
for every president there\'s a short biography on the homepage of the
White House. Now, I have no idea whether these biographies, once they
were invented, stay there forever, or whether they are rewritten by
every administration; a possibility. Just listen to what they have to
say about Theodore Roosevelt these days: "Theodore Roosevelt brought new
excitement and power to the presidency, as he vigorously led Congress
and the American public towards progressive reforms and a strong foreign
policy. He took the view that the president, as a steward of the people,
should take whatever action necessary for the public good, unless
expressly forbidden by law or the Constitution. 'I did not usurp power,'
he wrote, 'but I did greatly broaden the use of executive power.'" End
of this little vignette.

Concerning the respective powers of a plebiscitary leader in the
legislature, Weber in the 1917 essay had embraced the control functions
of the British Parliament as a counterpart to the prime ministerial,
Caesarist, plebiscitary element in the British government; he saw Lloyd
George as a Caesarist leader. In a description that does not any longer
mesh with today\'s British realities, he said, "Vis-à-vis the factually
Caesarist representative of the masses, parliament safeguards in England
the continuity and the supervision of his power position, the
preservation of civil rights, a suitable political proving ground of the
politicians wooing the confidence of the masses and the peaceful
elimination of the Caesarist dictator once he had lost the trust of the
masses."

When Weber\'s opinion was solicited in the debates over the role and
position of the German president during the formation of the Weimar
Constitution in 1918, 1919, he did not propose what he understood the
American solution to be. Ultimately, Weber turned out to be more
ambivalent about the extent of presidential power in the American system
than his desire for a counterweight to bureaucracy and organized
interests would suggest. On the one hand he believed charismatic
plebiscitary leadership was unavoidable, and indeed desirable; on the
other hand he worried about accountability and liberty.

Weber did propose the direct election of the German president to make
him a steward of the masses \-- *vertrauensmann der massen* \-- who
could consult the people directly. But at the same time, Weber preferred
that the government itself, Chancellor and Cabinet, be dependent on
parliamentary confidence. The solution, nowadays called a
semi-presidential system, was perceived to combine the best elements of
the American and the French Constitutions \-- the French Constitution as
it existed at that time; not, of course, that of the fifth republic.

Ed, there is a seat for you here somewhere.

Of course, in 1933 this particular conjunction of constitutional devices
turned out to be irrelevant in the face of presidential emergency powers
that led to Hitler\'s appointment to the chancellorship, and his
subsequent seizure of power. Equally irrelevant were the removal
mechanisms the Weimar Constitution had envisaged for chancellor and
president. The removal of a charismatic Caesarist leader who loses the
confidence of the masses concerned Weber in many of his analyses of the
foundations of charismatic authority.

There is a fascinating passage in "Economy and Society" that concerns
the instability of even religious charismatic authority: "The
charismatic hero gains his authority solely by proving his powers in
practice. He must work miracles if he wants to be a prophet. He must
perform heroic deeds if he wants to be a warlord. Most of all, his
divine mission must prove itself by bringing well-being to his faithful
followers; if they do not fare well, he obviously is not the God-sent
master. This is the concrete meaning," I continue to quote, "of
Meng-tse's statement concerning the power of the Chinese emperor \--
that the people\'s voice is God\'s voice; according to him, the only way
in which God speaks. If the people withdraw their recognition, the
master becomes a mere private person" \-- this is explicitly stated \--
"and if he claims to be more, a usurper deserving of punishment."

Overall, though, Weber spent little time worrying about the precise
mechanisms for eliminating bad leaders in a democracy. He clearly
understood the need for such mechanisms, he vaguely invoked parliaments
as agents for this purpose, but he never really focused on the
practicalities. In an article from February 1919 in which he advocated
the popular election of the German president, as envisaged by the Weimar
Constitution draft, he wrote, "One, take care as to any attempt on the
part of the president to infringe the laws or to govern autocratically;
that the gallows and the rope be always before his eyes." The gallows
and the rope.

The reference to the gallows makes a reappearance a couple of months
later in an exchange with Eric Ludendorff, the dictatorial general
largely responsible for the German conduct of World War I, in which
Weber supposedly said, in response to Ludendorff's question how we
understood democracy: "In a democracy the people elect a leader in whom
they have trust. The elected then says, 'Now shut up and obey.' The
people and parties have no further right to interfere. Afterwards, the
people can judge. If the leader made mistakes, off he goes to the
gallows." On the one hand, these grating and indeed obnoxious remarks
should probably be taken with a grain of salt. They were made during a
tense exchange in which Weber sought to establish some common ground
with Gen. Ludendorff. The exchange was part of a peculiar, perhaps even
bizarre effort on Weber\'s part to persuade the general to surrender to
the Allies and take the responsibility off of his head for the conduct
of the war.

On the other hand, it is also true that the statement concerning the
democratic leader's demand for obedience is very similar to what Weber
had stated in "Economy and Society" as an empirical proposition about
charismatic leaders. "The bearer of charisma seizes the task for which
he is destined, and demands that others obey and follow him by virtue of
his mission. He is their master as long as he proves himself." Put this
together with Weber\'s account of leadership in his famous 1919 lecture
"Politics as a Vocation," and you hear, as Kronman has argued,
Nietzsche. In his account of political leadership, Weber stresses the
same personal qualities that Nietzsche does; courage, passion,
self-discipline, a heightened sense of responsibility, a distance from
oneself and the world, and emphasizes, again as Nietzsche does, the
rarity of these qualities and the anti-Democratic consequences of
treating their possession as a justification for the exercise of
authority.

Accepting Kronman\'s views, we should nevertheless not lose sight of the
complex tangle of descriptive and prescriptive elements in Weber\'s
thinking about governance, nor of his ultimate commitments. While Weber
was much concerned with the need for genuine political leadership, and
displayed somewhat romantic elitist tendencies, his parliamentarianism
and his emphasis on accountability remain all-important counterweights.
Furthermore, Weber was a political realist. And it was, in my view, his
political realism as much as Nietzsche that led him to downplay the
people\'s role in governance. In a 1908 letter he wrote, "Concepts such
as the will of the people, the true will of the people, et cetera, for
me do not exist. They are fictions."

Anachronistically, one might characterize Weber\'s views about
democratic politics as Schumpeterian. I say anachronistically, because
of course Weber came first. And although Schumpeter never credited
Weber, there\'s a serious case to be made that Schumpeter was influenced
by Weber\'s emphasis on the selection and elimination of leaders.
Nowadays we associate this Weberian position primarily with Schumpeter.

I quote a characteristic passage from "Capitalism, Socialism and
Democracy": "It should be observed that in making it the primary
function of the electorate to produce a government directly, or through
an intermediate body, I intended in this phrase also the function of
evicting it. The one means simply the acceptance of a leader to, or a
group of leaders. The other means simply the withdrawal of this
acceptance. This takes care of an element the reader may have missed. He
may have thought that the elected controls as well as installs. But
since electorates, electorates normally do not control their political
leaders in any way, except by refusing to re-elect them, all the
parliamentary majorities that support them, it seems well to reduce our
ideas about this control in the way indicated by our definition.
Occasionally, spontaneous revulsions occur which upset a government or
an individual minister directly, or else enforce a certain course of
action" \-- something we have just seen, I think.

Let me summarize so far. By 1919, Weber had developed a concept of
governance in mass democracies; one might say an ideal type that
consists of a complex, complex mixture of descriptive and prescriptive
notions. Here are what I consider the five most important elements of
Weber\'s conception. One, every mass democracy tends in the direction of
the Caesarist model of selection. The specifically Caesarist technique
is a plebiscite. Two, the Caesar\'s power derives from his charisma that
responds to psychic, physical, economic, ethical, religious or political
needs, and that by its own internal logic sets its own limits, and knows
no supervisory or appeals body; no technical jurisdiction. Three, the
leader should have a superior intellect, rhetorical abilities and the
three qualities that Weber discusses in "Politics as a Vocation" passion
for a cause, a sense of responsibility, and a sense of proportion \--
the capacity to estimate, to judge. As a means of checks and balances,
parliamentary oversight is indispensable, especially for the protection
of rights. And finally, five \-- furthermore, there needs to be a
peaceful mechanism for eliminating the Caesarist ruler who has made
mistakes.

Was Max Weber right when he said that every mass democracy tends in the
direction of the Caesarist mode of selection? At one level, even before
present-day modes of campaigning, before present-day modes of political
fundraising, before present-day primaries, before television advertising
and before the other electronic media, Weber obviously captured a
tendency.

In many democracies nowadays, including those with stronger political
parties then the American ones, elections most of the time have a
personalized and plebiscitary character. They focus on choosing leaders;
Bush or Kerry, Merkel or Schröder, Prodi or Berlusconi. While vague,
substantive policy goals also play a role, modern elections
predominantly are about choosing leaders, not about mostly futile
attempts to aggregate voter preferences. What is remarkable about Weber
is how clear eyed his perception was, even 100 years ago; especially as
concerns the United States.

What we encounter here is a tendency, in the sense in which John Stuart
Mill used the concept. Whatever the validity of Mill\'s view for the
natural sciences may be, in the social sciences, as Weber understood,
Mill provides a useful way of describing certain phenomena, quote, "To
accommodate the expression of the law to the real phenomena, we must say
not that the object moves, but that it tends to move unless prevented,
or except insofar as prevented by some counteracting cause. All laws of
causation, in consequence of their liability to be counteracted require
to be stated in words affirmative of tendencies only, and not of actual
results," end of quote.

In the United States, on which in conclusion I shall focus exclusively,
Mill's formulation is especially valuable because America\'s relative
political openness and its associational pluralism much of the time tend
to bring forces into play that counteract Caesarist tendencies. These
forces may be political, but they may also include \-- as Weber would
have recognized \-- the bureaucracy. The congressional impeachment
proceedings that led to Richard Nixon\'s resignation provide a vivid
example for political counteraction. To use Weber\'s colorful metaphor,
the gallows and the rope remained before Nixon\'s eyes. If the Nixon
case illustrates situational gallows, then Lyndon Johnson\'s 1968
decision not to run for reelection represents a kind of imagined
gallows. And the constitutional term limit for presidents constitutes
mandatory gallows.

What Weber focused on in American presidential politics arguably had its
beginnings with Andrew Jackson. Of course, some predicted a tendency
toward Caesarism at the outset, although then they called it monarchy.
Thus in the Constitutional Convention, Benjamin Franklin said, "When
speaking against an absolute negative for the executive, the first man
put at the helm will be a good one. Nobody knows what sort may come
afterwards. The executive will always be increasing here, 'til it ends
in a monarchy."

Robert Dahl, in "How Democratic is the American Constitution?" made the
point that none of the presidents before Jackson publicly challenged the
standard view that the only legitimate representative of the popular
will was the Congress. "Jackson insisted that he alone could claim to
represent all the people. Thus, Jackson began what I, Dahl, have called
the myth of the presidential mandate; that by winning a majority of the
popular votes, the president has gained a mandate to carry out whatever
he had proposed during the campaign. Although he was bitterly attacked
for his audacious assertions which not all later presidents supported,
it gained credibility from its reassertion by Lincoln, Cleveland,
Theodore Roosevelt and Wilson, and was finally nailed firmly in place by
Franklin Roosevelt."

In addition to alleged mandates, charisma has become an attribute
invoked in relation to many presidents or presidential candidates. In
ordinary political language, charisma often refers to no more than the
capacity to inspire enthusiasm. However, if we widen the focus to those
aspects of the Weberian concept that describes the Caesarist charismatic
leader as somebody who is firmly committed to a cause, who wants to set
his own limits, who does not consider himself confined by technical
jurisdiction, a fair number of presidents qualify as charismatic. This
is also true for George W. Bush. While his invasion and occupation of
Iraq to my mind has been a misjudgment of tragic proportions, he was at
least partially driven by convictions about rooting out evil and
spreading freedom and democracy, that he understood or understands as
causes which should not be subject to the vagaries of opinion polls.

The Bush administration has also been characterized by the Caesarist
belief that the president should to the greatest possible extent not be
subject to other jurisdictions; that he needs to set his own limits. In
the case of the present administration, this conviction has been
justified in terms of an emergency, the global War on Terror, which has
led to claims of unreviewable powers to detain alleged noncitizen enemy
combatants ad infinitum, to detain even citizens as enemy combatants, or
immediately after Sept.11, to be justified in rounding up hundreds of
aliens on immigration charges, holding them incommunicado and proceeding
against them in closed, essentially secret hearings. In a democracy that
believes in the rule of law, it is hard not to characterize such claims
as Caesarist.

A weak Congress, mostly without an independent political will, has lent
support most recently by removing habeas corpus jurisdiction with
respect to alien enemy combatants, and by more generally severely
limiting federal court jurisdiction in cases involving detainees. The
Supreme Court itself has on the whole spoken less than forcefully on
these issues. More than four years have passed without the court
providing clear guidance on what process is due the detainees.

Not a single detainee has been released as a direct result of a court
order.

Congress has let more than a year go by without addressing the conflict
between the National Security Agency\'s presidentially authorized
wiretap program, and the Federal Foreign, and the Foreign Federal
Intelligence Surveillance Act (FISA), about which a Justice Department
memorandum simply says that, if interpreted the way I think it must be
interpreted \-- that is I think FISA must be interpreted, the Justice
Department says if interpreted the way I think it must be interpreted
FISA would "impermissibly interfere with the president\'s most solemn
constitutional obligation to defend the United States against foreign
attack."

Collecting, summarizing and expanding diverse, limited and sometimes
petty constitutional authorities into undifferentiated executive powers
has for many decades now been the technique for denying the
constitutional primacy of Congress, and limiting the role of the courts.
Would-be Caesars rule with the aid of such abstractions as the executive
power, the inherent powers of the commander-in-chief, the war power, the
foreign affairs power, the emergency power. Sweeping congressional
resolutions such as the authorization for use of military force are also
invoked, but only as a backup for the fainthearted, since the alleged
constitutional powers are generally considered as sufficient authority.

Who can claim to know the boundaries and the exact locus of something
like the war power? All the power claimed by McGeorge Bundy on behalf of
Lyndon Johnson as mankind\'s chief executive for peace. Honing in on
Bundy, the National Security Strategy of 2002 declared that it must be
our goal to provide the president with a wider range of military options
to discourage, discourage aggression or any form of coercion against the
United States, our allies and our friends. The war in Iraq was
structured as one of those presidential military options, including a
congressional authorization for the use of military force that had
become stale by the time the war was begun.

Unilateralism can be both an international and domestic phenomenon. In
the 2002 National Security Strategy, Congress was mentioned once in 34
pages of text, and then only in connection with trade promotion
authority. The president views himself as the decider not only within
the executive branch \-- an awesome power to begin with \-- but
generally in determining what is good for the country. The present Bush
administration has made executive power claims more systematically, I
believe, than any postwar administration, including those of presidents
Johnson and perhaps even Nixon. Nevertheless, its claims are no more
than crystallization of a long-term, if intermittent tendency that Weber
discerned as early as the beginning of the 20th century.

A depressing aspect of the present-day arguments over the scope of
executive power is the fact that we had the same debate about 30 years
ago. And all sides to the present reiteration are doing little else than
reinventing the wheel. And when we had the debate 30 years ago, it was
not for the first time either. There\'s one new twist, however. Apart
from speeches, government memoranda and government briefs, the Bush
administration lawyers have put forward their views on the matter most
clearly in presidential signing statements that have raised hundreds of
constitutional objections to various statutory provisions. The
objections are couched in constitutional terms, and thus raise the
question of the president\'s authority to disregard laws that he deems
to be unconstitutional; actually a serious question. In our context, my
concern is exclusively with the language that is employed to signal and
justify the possible noncompliance with unvetoed acts, acts of Congress.

The first point to note is that the signing statements tend to consist
of circumlocutions. They ordinarily do not say that the president will
not comply with particular provisions of an act, but that the executive
branch will construe provisions in a manner consistent with the
president\'s constitutional authorities. For instance, concerning a
statutory title creating an inspector general for the coalition
provisional authority in Iraq, the signing statement said that the title
"shall be construed in a manner consistent with the president\'s
constitutional authorities to conduct the nation\'s foreign affairs, to
supervise the unitary executive branch, and as commander-in-chief of the
armed forces."

It then specifically lists certain investigations the inspector general
shall refrain from undertaking, and continues by stating that
"provisions of the act requiring disclosure of information shall be
construed in a manner consistent with the president\'s constitutional
authority to withhold information that could impair foreign relations,
national security, the deliberative process of the executive, or the
performance of the executive\'s constitutional duties." It is hard to
conceive of anything more sweeping or, for that matter, vaguer. The
formulation unitary executive branch is used with great frequency to
ward off congressional intrusions, but also, I suppose, to dispose of
long-standing constitutional disputes about congressional power under
the necessary and proper clause.

The clause provides that Congress shall have power to make all laws
necessary and proper for carrying into execution all powers vested by
the Constitution in the government, or in any department or officer
thereof. At times, the signing statements create Orwellian specters. For
instance, the Detainee Treatment Act of 2005 that prohibits cruel,
inhuman or degrading treatment or punishment brought forth the following
signing statement: "The executive branch shall construe Title X,
relating to detainees in a manner consistent with the constitutional
authority of the president to supervise the unitary executive branch and
as commander-in-chief, and consistent with the constitutional
limitations on the judicial power, on the judicial power which will
assist in achieving the shared objective of the Congress and the
president, evidenced in Title X, of protecting the American people from
further terrorist attacks."

This new speak has been widely interpreted as implying that the
president reserves the right to act contrary to the letter and the
spirit of the legislation. Torture is the elephant in the room. The most
famous formulation that justifies concerns about the meaning of a
signing statement like the one just quoted is of course President
Nixon\'s response to a question by David Frost, in a television
interview that took place after Nixon had resigned. I quote.

Frost: "So, what you\'re saying is that there are certain situations
where the president can decide that it\'s in the best interest of the
nation or something, and do something illegal?" Nixon: "Well, when the
president does it, that means that it is not illegal."

\[laughter\]

Frost: "By definition?"

Nixon: "Exactly, exactly. If the president, for example, approved
something because of the national security, or in this case because of a
threat to internal peace and order of significant magnitude, then the
president\'s decision in that instance is one that enables those who
carry it out to carry it out without violating the law."

I\'m almost done, as you will be happy to realize. Weber thought that
legislatures are essential for purposes of accountability, and for the
protection of rights. However, Congress, with its uninterrupted
electioneering and the resulting dominance of opinion surveys, with its
disregard for the rights of legislative minorities, with its politicized
ways of oversight, with its rush to judgment on matters small and large,
including war, with its disregard for germaneness in legislating, with
its dependence on money raising machines, lobbyists and earmarks, can
hardly be viewed with much confidence or optimism. The role Congress
plays in relation to the executive reminds one of Weber\'s
characterization of Bismarck's Caesarism as both the result and the
cause of parliamentary weakness.

It also reminds us of Weber\'s emphasis on the quality of legislative
bodies. The level of parliament depends on whether it does not merely
discuss great issues, but decisively influences them. In other words,
its quality depends on whether what happens there matters. There is, I
believe, another parallel to Weber\'s world. Weber said that Bismarck
sought cover for his Caesarist régime behind the legitimacy of the
monarchy. In the United States, plebiscitary Caesarism is pushed by
elevating discrete executive authorities to ever higher constitutional
levels, seeking cover behind the legitimacy of the Constitution. In my
view, Weber\'s Caesarism provides a conceptual focus for analyzing
tendencies toward ever more accretion of executive power, and the
personalization of politics.

Weber also reminds us of two important points. One, in a democracy, the
choice of leaders deserves even more attention than it presently
receives. As difficult as it may appear, their passion, their judgment,
their sense of responsibility, their respect for the rule of law have to
be probed with an eye towards how they might deal not only with the
ordinary, but also with the unexpected. Of exceptional importance is a
leader's ability to do what, according to Weber, Bismarck and the kaiser
were incapable of doing: attract independent political minds. I do
indeed believe that one of the worst aspects of American politics has
been the gradual emergence of the White House as a court.

And secondly, since judges play at best a secondary, or even tertiary
role, much more attention needs to be paid what Congress does and does
not do. That, ladies and gentlemen, seems to me a particularly important
point. We in the United States generally believe in the efficacy of the
courts, and have tremendous confidence in the Supreme Court and the
lower courts. I think that is ill advised. Not that we shouldn\'t have
some confidence in them \-- that is not my point \-- but all the
important issues about privacy, constitutional rights and so on are
effectively settled by the Congress.

Take for instance privacy \-- the right to privacy, which is incredibly
weakly supported in the United States, both against government and in
business situations. This right to privacy is so weakly supported
because Congress has been so weak in legislating in this area. And
again, coming back to the basic issues of my paper, I think the
protection of civil and political rights, if Congress is willing to play
with them, is simply not guaranteed. The courts will not do under those
circumstances. And I repeat the fact that four years have passed without
the Supreme Court saying anything definitive about the due process
rights of detainees. It has rendered one decision after another, but it
has basically always pushed the issue to another day. In constitutional
law we call that "engaged in avoidance techniques."

And if you think of the various levels at which courts, federal courts
\-- from the district court through the Court of Appeals to the Supreme
Court \-- can engage in avoidance in referring and bringing matters back
and postponing them to another day, I think years can pass and not much
will happen. I do really believe that Weber\'s insight, mostly taken
from the British example that parliament is essential for the protection
of rights, is something that we have to consider much more than we
ordinarily do. Weber began his 1917 essay by saying that it could not
claim the protective authority of any science, because it dealt with
ultimate commitments. And of course I do not claim the protective
authority of any science. Later in the essay, Weber referred to the
proud traditions of peoples who are politically mature, and keep their
nerves and a cool head. Keeping our nerves and a cool head, as a people,
would be one good ultimate commitment to make in deeply troubled times.

An editorial in the "Wall Street Journal" recently stated that there is
no bigger question, campaign issue than the proper role of the
presidency. Rather amazingly, its author seemed to be worried about the
erosion of presidential authority. It would be most welcome indeed if
the proper role of the president were to become an issue in presidential
campaigns. Alas, I\'m not holding my breath. Thank you very much.

\[applause\]

Librarian of Congress James Billington:

Thank you very much. He's professed willingness \-- I think we all thank
you for the thoroughness and the extent and the range and the depth of
what you had to say. Let me ask the first question, because it seems to
me that if I identify the two \-- going back a little bit to the origins
of this tendency that you analyzed so brilliantly \-- at the time of
Jackson, which seemed to be the first milestone, there was of course
plenty of resistance to Jackson. And it\'s not accidental that it was in
that time that we had the great congressional figures, who \-- at least
when I studied in the public schools of the Philadelphia area we studied
history, we studied about people like Calhoun and Webster, and names
that are lost in history books. And if you take Teddy Roosevelt as the
next big milestone \-- of course, Woodrow Wilson argued that we should
have a parliamentary system in effect.

Do you think that that\'s a counter tendency that has some continuing
vitality? And above all, do you think that perhaps \-- since we\'re in a
scholarly center here \-- that the scholarly community, including my
profession of history, hasn\'t been all that helpful, because we talk
about the age of presidents as if it was the age of the Tudors and the
Stewarts. And David McCullough, when he spoke to the joint session of
Congress on the 200th anniversary of the Congress, pointed out that
there been \-- I don't know what \-- there had been, by then, 15 or 20
biographies of Joe McCarthy, and only one or two of any major speakers
of the Congress.

And you sort of wonder whether there\'s enough, been enough attention
paid to the workings of the government as a whole, as distinguished from
a certain tendency, a certain courtier to the royal, to the line \-- a
tendency among the historical profession itself. Plus, other people
write not about the other figures of the political dialogue, but rather
about impersonal forces at work, so that that tends to treat the
populace as a sort of amorphous mass without personality and without the
capacity to make serious intellectual argument or moral decisions. So I
wonder if there\'s another tendency that you would point to, and how you
would balance that all out? Then we'll open it up for other questions.

Gerhard Casper:

Jim, thank you.

Librarian of Congress James Billington:

\[Inaudible\].

Gerhard Casper:

Yes, okay, thank you for the question. It is of course the case that to
the extent to which politics is about drama, about individualization,
and for that matter entertainment \-- so much of politics has become
sheer entertainment. The focus on the presidency is infinitely easier
than the focus on an institution made up of several hundred people such
as Congress. And if you were a historian \-- I mean, I know I shouldn\'t
say anything about historians. I will not. Forget it.

\[laughter\]

If one were inclined to write history as a layperson, writing it about
presidents is infinitely easier, and writing it in the dramatic terms of
presidential successions is infinitely easier than writing about the
actual governmental situation in the United States. And actually, there
are some historians who have done that. My former colleague at the
University of Chicago, Barry Karl, in the '70s wrote a very elegant
little book called "The Uneasy State" that goes much beyond presidential
drama.

But I would like to say \-- and I know, I implied that in my remarks \--
if I had time, if I had attention to devote to any American governmental
institution now, I would devote it to the Congress, and then of course
also to the control of the bureaucracy. I mean, the bureaucracy is a
very delicate and interesting subject here, because it does have a power
of its own. Remember, President Nixon wasn\'t frustrated so much
initially by the Congress; President Nixon was frustrated by the
bureaucrats. He issued orders from the White House and nobody executed
them, and he complained about it. There was this counteraction to the
tendencies, Nixonian tendencies that was very clear and very visible.

But I do think, given \-- and the congressmen will excuse me for having
done that, given what I said in terms of negative attributes of present
congressional electioneering and everything connected with that \-- I
think all of us as citizens, as scholars, as historians should devote
time to the accomplishments and to the shortcomings of Congress; not
just to the shortcomings. There are also accomplishments. And as all of
you know who interact with individual members of the Congress. But I
think this is a subject that has been neglected, and will continue to be
neglected on the whole, because for the media the entertainment value of
the presidency cannot be beat, in particular if you add sex and things
like that. Yes.

Male Speaker:

First of all, thank you for a very thorough presentation, which I will
find very useful in a book that I\'m writing. But I\'d like to observe
that there are good Caesarites, obviously; thank God for Lincoln, and
thank God for Franklin Roosevelt. Part of the reason they were good
Caesarites is because they had a clear mission. To save the Union was a
clear, desirable mission. To save the world from totalitarian
dictatorship, I think, was Roosevelt's clear, desirable mission. And
those presidents have an easier time, I think. But as we move forward
and the population becomes larger, the parliamentary bodies become
larger, the Congress \-- congressmen now represent 650,000 people, each
one \-- and the complexity of government becomes larger, is there any
hope if charisma is going to be the defining quality? Charisma, star
power, you know -- charisma, the media controls how charisma is handled
usually, whether it\'s really \-- access to media determines whether or
not your charisma is exposed.

And just as there can be excesses with one person in the presidency,
it\'s now 435; 435 members of Congress pursue that charisma perch, that
charisma position, and it\'s charisma that\'s going to determine whether
they get elected or not. I\'m oversimplifying it, of course. Is there no
hope that some other factor can be introduced here? I think if ever
alluded to it; like you said, the parliament is a hope. But how? The
parliament\'s now being as big as they are, and pursuing the same
electioneering techniques as the executive. How does it happen? Is it,
is there need for political organizations? And the parliament, the
people in the parliament are the ones most likely to be able to form
political organizations which will begin to have missions, platforms,
philosophies; a moralistic approach to where they want the nation to go
and what the world will be like.

And they will, in turn, help to educate the general public, which in the
final analysis \-- and this was not discussed at all \-- is the culprit
if you\'re going to fall victim to charisma. And you're right back to
where the cavemen were, where the tallest guy and the guy with the
largest voice was elected as the chief, you know. We\'re back there. Is
there no way we can avoid that? We have to deal with some
anti-intellectualism here. You know, people, anti-intellectuals, and
deal with our own bowing to the media. We have to come forward and
challenge stardom as we now define it. There are a number of things
there which I think show that this is going to be very difficult. Is it
so hard and so difficult that we should give up? Or should we try to
form political organizations with the independent minds you were talking
about, who have a base in parliament, some authority? Is that the route
that maybe we can take to get out of this bind?

Gerhard Casper:

Well, let me, let me respond, first of all, to a point that I think you
made that I had not made, but that I think is very valid and important
not to forget, and that is that this whole notion of charisma has now
invaded congressional elections just as much as the presidential
elections. You are quite right; it is not so much any more about the
particular program a candidate for office has, or how he would aggregate
political public preferences, but rather it is about personality. And
whether that can be undone or not is in a way the crucial question, and
it\'s very hard. My own view is that to the extent to which we had
political parties in the United States \-- and we had them more than we
have today \-- today, every member of Congress is more or less his or
her own political party. But when we still had political parties,
actually political parties performed the function of aggregating better
than we now do, and also performed, more importantly, a role in the
selection of leaders.

I think the single development that has done more damage to American
party politics than any other are the primary decisions of the Supreme
Court. I don\'t mean, of course, the ones dealing with racial primaries;
I mean the later ones. Basically we have more or less open primaries due
to Supreme Court decisions. The political machines that Weber worried
about play no role, really, essentially, any more, whatsoever. And we
have no political parties therefore. In California, until the parties
did actually get overthrown. In California, for a short time a few years
ago, we had the opportunity to vote in elections absolutely regardless
of party affiliation in primaries; absolutely regardless of party
affiliation. You didn't have, you could choose, for one candidate you
could vote in the Republican primary, for another candidate you could
vote in the Democratic primary. You had to make no choices. Now, in a
very peculiar way \-- I don\'t really like Spengler at all, and I quoted
him only as an extreme example. But in a peculiar way, Spengler may have
been onto something when he talked about the kind of amorphous masses
that were emerging in our democratic societies. We have become much more
amorphous.

Now, it is not only in the United States. For instance, I think
parliamentary government is not a real counterweight, I mean in the
technical sense, in part for the reason that we see the same tendencies
there that we have. A friend of mine who is a member of the House of
Lords, a very distinguished sociologist, Dahrendorf, recently wrote a
paper in which he said the British parliament was completely irrelevant
to everything. And that may have been an overstatement, but you see it
because Blair \-- Weber would clearly have declared Blair to be a
Caesarist ruler in a sense. And from there come all the controls that
normally are issued, are brought into place to make it impossible for
members of parliament to deviate. I think on the continent, the French
case is too complex. We\'ll talk about the French case after the
election, but on the continent I think the parties are still somewhat
more important.

But of course you often have a tremendous pluralism of parties that then
forces you to form very complex coalitions, as we have seen most
recently in the Italian case, most dramatically. And whether we could
live that way, I do not know. Let me perhaps come to one other point
that is not related in any way, really, to this, but one very important
aspect of the American political system. And that is, it is really
scandalous to have the kind of gerrymandering of electoral districts
that characterizes American elections. It is scandalous. What happened
in Texas under Democrats first, then under Republicans should be
completely unthinkable in a country that believes it is a democracy. It
should be completely beyond the pale what they do to us, for instance,
in California. And I think, now, if I had one reform in this area that I
could advocate, it would be yes, we need to go to electoral commissions
like they use in Britain, like they use in any continental countries.

I hear never any complaints based on fairness by political parties or
anybody else, except in marginal instances about commission districting
done in the mature European democracies. That we cannot get ourselves to
that point is scandalous, really. Now, why did I bring this up? I
brought it up because, yeah, so people get completely disenchanted. If
people believe their vote is totally meaningless because bipartisan
districts \-- by the way, the problem isn\'t so much abuse of the
district any longer, abuse of the district authority by one party or the
other, but the two parties get together to assure the reelection of the
incumbents. And I, as a voter, where am I left? I have no say
whatsoever. I have no chance to influence the outcome, because my
representative has been, is in a district so engineered that we make
absolutely sure she will get re-elected.

These are issues that have to do with our political commitments, and the
potential of citizens to be involved, which we need to resolve if we do
not want to have ever more power claimed by the one person who at times
can say he was popularly elected. But I also remind you that no
president in recent memory had more than 24 or 25 percent of the voters
behind them. If you take the low participation rate in elections, 50
percent, and then the fact that they barely get 51 percent or so of
those voters, you end up with 25, 22 percent. That has been true for
Clinton, that has been true for Bush. And so I would also believe that
basic issues of legitimacy of government are at stake, and that we do
need to do more about increasing the voter roles and voter
participation. But you know as well as I do that\'s up against political
difficulties. And I could go on and on about that. That\'s enough.

Librarian of Congress James Billington:

One more question.

Gerhard Casper:

Yes.

Male Speaker:

Mr. Casper, good to see you again.

Gerhard Casper:

Nice to see you. I had the great privilege of having this able
Georgetown student as my research assistant here at the Library of
Congress. He sorted out all of those presidential signing statements for
me.

Male Speaker:

Speaking of which, I followed up on those presidential signing
statements and did some research and wrote a paper. But I wanted to ask
you \--

Gerhard Casper:

You have not sent me your paper.

Male Speaker:

I\'m sorry. I\'ll send it to you.

Gerhard Casper:

Please.

Male Speaker:

The question I had, actually, something I came across, was, what is more
dangerous or what is more troubling, or what should be more troubling to
us? Is it the claims that exist in these signing statements, or is it
the fact that we don\'t know if action is taken upon these claims?
Because it seems to me the claim has the danger of precedential
significance. And the action, or lack thereof, has the danger of not
fulfilling the execution clause for the president. So I wanted to know
what you think is worse off, in terms of the signing statements.

Dr. Gerhard Casper:

Wonderful question; very appropriate. My answer is you should equally
worry about both of these at all times, and have sleepless nights if you
can.

\[laughter\]

The first is of course that indeed, we must not forget, these statements
were not written by Bush. They were written by lawyers; pretty mindless
lawyers, not lawyers like Jim Hamilton and I like. But they were written
by lawyers, and they make legal claims. Now, will they have a
precedential effect? Yeah, of course they do, because every president
has always made these claims, and they always build on one another. And
indeed, in the whole discussion we have been reminded that other
presidents have used signing statements, though none to the extent to
which President Bush has done so. So I would worry, because \-- and this
goes back to the basic issue, and I apologize again for having gotten to
my subject in such a indirect way. It was very intricately woven, but I
didn\'t want to go into the subject directly. I wanted to show you all
that depends on it, and therefore this route through Weber.

But the fact of the matter is that these signing statements repeated,
invoked by the next administration and so on, will always be a claim to
legitimacy that simply has no basis anywhere. I mean, all of the things
they invoke these days \-- for instance, executive privilege. There is
no word about executive privilege in here. It nowhere appears. But it is
taken simply for granted, because administration after administration,
Democratic and Republican, has claimed executive privilege. Now, there
are some circumstances in which I think such claims can be justified.
That\'s not my point. What was amazing this week was, for instance, that
the president, in his statement about the matter \-- not his lawyers \--
said that he would invoke privilege for the members of the White House
staff to be subpoenaed, that have now or will be subpoenaed by the
House, to save them from the embarrassment of being torn to pieces in
front of a congressional committee.

Now, that is certainly embarrassing; I have no question. But that is
indeed what parliamentary control is all about. And so, you could argue
the president should be able to have the privilege of being advised in a
confidential manner, and if everything will be known, he can never hope
to get that advice. I\'m very sympathetic to that, even in the small
world of a university president; much smaller than that of the U.S.
president. Yeah, I needed advice, and I would not always have been happy
if the "Stanford Daily" had reported about the advice I received. Let me
assure you, I\'m very sympathetic to that. But that is not even the case
here anymore, because we have learned so much by now in part because the
White House released all those e-mails. People shouldn\'t write e-mails.
I am always amazed what people put in e-mails; it is fantastic
\[laughs\]. I mean, great. Should not, the invocation may not any longer
be legitimate, because already so much has been surrendered. And anyway,
it does not actually involve confidential advice to the president, or in
any direct way.

But now I come to your second point. I actually believe that most of
these signing statements so far have been in effect pretty harmless.
I\'m not aware of many in the executive branch who have acted upon them;
your second point. Though also it may just be the fact that we haven't
been told. You still need to lose sleep over it, because it is a culture
that is being created. That is, the signing statements say to members of
the executive branch, "Don\'t take what Congress has said too seriously.
We don\'t actually agree with it, and just ignore it." Well, if you put
that together with Weber\'s theories about the power of bureaucracy, you
end up in a pretty uncomfortable position. And you certainly do not want
to encourage in the vast government apparatus anything like an attitude,
"We can be cavalier about this."

Librarian of Congress James H. Billington:

Well, I'm sure we all \[inaudible\].

\[applause\]

\[end of transcript\]