The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Saturday, July 4, 2009

Is Obama's following Bush Yet Again?
Mike Rappaport

Barack Obama's actions in response to the ouster of Honduran President Manuel Zelaya seem very peculiar for the reasons I have already noted, but they are interesting in another way. 

It seems clear that the President Zelaya was attempting to establish a new constitution so that he could remain in the office of the presidency.  The existing constitution had a firm one term limit for the President, which could not be amended.  In fact, it also provided that anyone who proposed its reform "will immediately cease in their functions and will be unable to hold any public office for a period of 10 years."  In South and Central America, such a limit makes perfect sense, where strong Presidents had often usurped power, and continue to do so in the model of Hugo Chavez.  In that part of the world, the Napoleonic system of a dictatorial president, established through a referendum of the people, has been used much to the detriment of the liberties of the people.  Instead, the Honduran Constitution seems to have eschewed this radical form of democracy in favor of a republican system.   

Obama's statement that the ouster was an illegal coup is therefore interesting.  I am not aware of any analysis issued by the State Department explaining why it was illegal.  It may be, but even if it was illegal, it was clearly in response to an apparent presidential illegality that was threatening the republic.

Based on the statements of the Obama Administration, it seems that Obama simply views the ouster as illegal because the President was elected and he was ousted without an impeachment (even though the military was acting at the orders of the Supreme Court).  The view seems to be that an election is key and that other limitations on the elected government are to be viewed as secondary, even if they are necessary to preserve freedom.  Lets call this the "freedom and democracy are simply about elections" view.    

In many ways, one might also believe that George Bush held a variant of this view of freedom and democracy.  His attempts to establish democracy throughout the world were flawed in part because they did not realize the preconditions for democratic freedom -- preconditions that exist in places where democracy is successful.  Successful democracies generally emerge in countries with some tradition of the rule of law and where there are operating markets.  I was always (and continue to be) skeptical that one would get functioning democracies in the Palestinian territories or in Afghanistan  I judged Iraq to be capable of growing some kind of democracy, but the Bush people did not sufficiently attempt to produce the preconditions for democracy there, including federalism and limitations on simple majorities.  To some extent, the Sunni awakening solved those problems in spite of Bush's apparent intentions.  

Thus, it seems to me that both Bush and Obama have simplistic and unrealistic approaches to democracy.  Neither President sufficiently appreciates that democracy is an accomplishment that requires much more than elections to support it. 

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Mike Rappaport
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Comments

It is a distinct possibility that the Effendi and his people had not been aware of the ins and outs of the Honduran Constitution. This sounds far-fetched, I know, but just recall the Russian reset button and the British DVD's and all their other petty fiascos, gaffs, blunders and missteps.

The more we learn about the Honduran constitution, the more it appears that Obama is dead wrong about the "coup" business. The self-executing clause is what does it. In Honduras, a President who tries to get himself retained in office is automatically out of office, by virtue on his own act, just as a Roman Catholic who participates in a baby-murder is excommunicated on the spot, without having to wait for the bishop to say it.

I'm still looking at this from a JAG point of view. If my C.O. calls me in and asks me what he is supposed to do, I'm going to reach into my camoflage litigation bag, pull out my copy of the constitution and tell him that Zelaya isn't president any more.

The only possible way Obama or anyone else could say otherwise, is to hold that the Honduran constitution is abrogated, and that, not the enforcement of the constitution would be a coup d'Etat.

Again, from a JAG perspective, the restoration of constitutional government in Iraq and Afghanistan is unrelated to what has happened in Honduras. Iraq and Afghanistan were conquered, occupied countries. The Baathist and Taliban regimes had gone the way of the Hitler and Hirohito regimes, and democratic governments were set up under the supervision of the occupation power. In Honduras, a functioning constitutional government had been in place before Zelaya's atempted coup, and it remains in place to this day.

Posted by: Lou Gots | Jul 4, 2009 10:17:39 AM

Why would Obama assert (in essence) that he knows Honduran law better than the Hondurans do? One possible answer is that he really does know Honduran law better. Another possibility is that he sides with Chavez and Castro, and his legal argument is merely a rationalization that he uses to avoid stating his real preferences, which most Americans would find abhorrent. I think the second explanation is most likely, given Obama's hostile response to the Honduran government. Why all of a sudden does he care about Honduras, when he had to be prodded to express the mildest condemnation of the Iranian mullahs' atrocities? Obama's treatment of Honduras is also consistent with his hostility toward Israel. He sides with the anti-American dictators. Bush may have been naive in promoting democracy, but Obama appears to be hostile to democracy.

Posted by: Jonathan | Jul 4, 2009 12:51:58 PM

I agree that Obama's idea of "democracy" is deeply flawed. It is the '60s radical "power to the people" acting in mob assembly, or the Chicago-style one party machine, or as Mike says the SA model. Gone are the great mediating institutions of rule of law, republican layers of representation, checks and balances, diverse government sovereignties each drawing legitimacy directly from different electorates, free markets, property rights, and other troublesome checks on the will of the caudillo.

Combine this with electoral fraud, census rigging, and a publicly-supported Acorn, and things will deteriorate very rapidly indeed.

Posted by: James DeLong | Jul 6, 2009 6:02:47 AM

ADDENDUM: The more I consider it, the more I like the South American analogy for the Obamaniac's views. These are certainly not European -- Europe delegates everything to the mediating institutions and little to the people.

If one wants to be really scared, consider the possibility that Obama is deliberately letting Congress ravage the U.S. economy like a horde of barbarians sacking a city because the most likely result will be a Peronist regime.

Posted by: James DeLong | Jul 6, 2009 6:15:10 AM

I used to think the Bush-haters were about as paranoid as anyone could get in this country. But man, you people need a reality check. Purposefully ravaging the economy to consolidate his own power? Its just like the last 8 years, only in reverse. Everything bad or wrong that happens in thw world will become an opportunity to bash Obama. I think you're giving Obama too much credit, and probably watching way too much Glen Beck.

Posted by: Johnny | Jul 6, 2009 11:47:03 AM