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 19th 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 21st 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 21st 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 rgime 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--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 Schrder, 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 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 rgime 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 ]
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