MACHIAVELLI IN ROBES?
THE COURT IN THE ELECTION
“The republic's debates cannot be half secret and half free.” Thus not Lincoln but Linde—Oregon Supreme Court Justice and noted legal scholar Hans Linde, lecturing in 1988 under the title, “A Republic…If You Can Keep It.” 1 Events such as Iran-Contra, in which dissimulation or secrecy itself becomes a component of government policy, were making Linde wonder whether we had kept our Republic, or could.
“To whom, ” Linde demanded to know, “is a government accountable for acts that are meant to be disowned?” 2 He asked his audience to consider which of our constitutional institutions finally must carry the burden of “safeguard[ing] the republic” against subversion by officials taking hidden liberties with the laws. 3 Linde himself thought the “chief burden” must rest with Congress. 4 He also granted the courts an important role, on the ground, among others, that a court has the reputation of always “explain [ing] its conclusions publicly, not advis[ing] in secret.” 5 Courts also supposedly are well positioned to provide the “objectivity, ” the “calm, ” and the “long-range view” that the country is said most urgently to need in “periods of…emergency.” 6 Justice Linde, reading the record, expressed his doubt that the courts in fact always had lived up to their theoretical capability of rising above the pressures of the moment, or always would. 7 He did not suggest, as Machiavelli might, that perhaps a saintly judicial detachment from worldly pressures would not always be in the country's interest.
I raise again Linde's question: How far, if at all, may a country's rulers take liberties with that country's laws without undermining the country's republican character? Now let me begin to define my terms. I suppose I need not specify that I mean lowercase republican. 8 I will in due course