Via Glenn Greenwald: Harvey Mansfield has written one of those articles in which the writer's elegance, erudition and stylistic flair make an abhorrent position sound halfway reasonable. One lovely sentence follows another, and if you aren't careful, they lull you into overlooking the fact that he is arguing against the rule of law. Glenn writes:
"Much of the intense dissatisfaction I have with the American media arises out of the fact that these extraordinary developments -- the dominant political movement advocating lawlessness and tyranny out in the open in The Wall St. Journal and Weekly Standard -- receive almost no attention.
While the Bush administration expressly adopts these theories to detain American citizens without charges, engage in domestic surveillance on Americans in clear violation of the laws we enacted to limit that power, and asserts a general right to disregard laws which interfere with the President's will, our media still barely discusses those issues.
They write about John Edwards' haircut and John Kerry's windsurfing and which political consultant has whispered what gossip to them about some painfully petty matter, but the extraordinary fact that our nation's dominant political movement is openly advocating the most radical theories of tyranny -- that "liberties are dangerous and law does not apply" -- is barely noticed by our most prestigious and self-loving national journalists. Merely to take note of that failure is to demonstrate how profoundly dysfunctional our political press is."
He's right. Since the article is behind the WSJ's subscription wall, I'll excerpt and comment on it below the fold. But nothing I have to say is more important than Glenn's point: that in this article, a prominent conservative intellectual is arguing for an idea that is profoundly opposed to everything this country stands for -- the idea that the President has the right to set aside the laws -- and while the media devote endless amounts of time to trivialities, they do not
seem to regard this as act as though this were worthy of notice.
Mansfield (emphasis added):
"Though I want to defend the strong executive, I mainly intend to step back from that defense to show why the debate between the strong executive and its adversary, the rule of law, is necessary, good and--under the Constitution--never-ending.
In other circumstances I could see myself defending the rule of law. Americans are fortunate to have a Constitution that accommodates different circumstances. Its flexibility keeps it in its original form and spirit a "living constitution," ready for change, and open to new necessities and opportunities. The "living constitution" conceived by the Progressives actually makes it a prisoner of ongoing events and perceived trends. To explain the constitutional debate between the strong executive and the rule of law I will concentrate on its sources in political philosophy and, for greater clarity, ignore the constitutional law emerging from it. (...)
America would not only make a republic for itself, but teach the world how to make a successful republic and thus improve republicanism and save the reputation of republics. For previous republics had suffered disastrous failure, alternating between anarchy and tyranny, seeming to force the conclusion that orderly government could come only from monarchy, the enemy of republics. Previous republics had put their faith in the rule of law as the best way to foil one-man rule. The rule of law would keep power in the hands of many, or at least a few, which was safer than in the hands of one. As the way to ensure the rule of law, Locke and Montesquieu fixed on the separation of powers. They were too realistic to put their faith in any sort of higher law; the rule of law would be maintained by a legislative process of institutions that both cooperated and competed.
Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by Aristotle in the well-known passage in his "Politics" where he considers "whether it is more advantageous to be ruled by the best man or the best laws."
The other defect is that the law does not know how to make itself obeyed. Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say. There must be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason. It is a delusion to believe that governments can have energy without ever resorting to the use of force.
The best source of energy turns out to be the same as the best source of reason--one man. One man, or, to use Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in apparently unguarded moments he called a tyrant.
The American Founders heeded both criticisms of the rule of law when they created the presidency. The president would be the source of energy in government, that is, in the administration of government, energy being a neutral term that might include Aristotle's discretionary virtue and Machiavelli's tyranny--in which only partisans could discern the difference. The founders of course accepted the principle of the rule of law, as being required by the republican genius of the American people. Under this principle, the wise man or prince becomes and is called an "executive," one who carries out the will and instruction of others, of the legislature that makes the law, of the people who instruct or inspire the legislature. In this weak sense, the dictionary definition of "executive," the executive forbears to rule in his own name as one man. This means that neither one-man wisdom nor tyranny is admitted into the Constitution as such; if there is need for either, the need is subordinated to, or if you will, covered over by, the republican principle of the rule of law.
Yet the executive subordinated to the rule of law is in danger of being subordinate to the legislature. This was the fault in previous republics. (...)
The American Constitution signifies that it has fortified the executive by vesting the president with "the executive power," complete and undiluted in Article II, as opposed to the Congress in Article I, which receives only certain delegated and enumerated legislative powers. The president takes an oath "to execute the Office of President" of which only one function is to "take care that the laws be faithfully executed." In addition, he is commander-in-chief of the military, makes treaties (with the Senate), and receives ambassadors. He has the power of pardon, a power with more than a whiff of prerogative for the sake of a public good that cannot be achieved, indeed that is endangered, by executing the laws. In the Federalist, as already noted, the executive represents the need for energy in government, energy to complement the need for stability, satisfied mainly in the Senate and the judiciary. (...)
The test of good government was what was necessary to all government. Necessity was put to the fore. In the first papers of the Federalist, necessity took the form of calling attention to the present crisis in America, caused by the incompetence of the republic established by the Articles of Confederation. The crisis was both foreign and domestic, and it was a crisis because it was urgent. The face of necessity, the manner in which it first appears and is most impressive, is urgency--in Machiavelli's words, la necessità che non da tempo (the necessity that allows no time). And what must be the character of a government's response to an urgent crisis? Energy. And where do we find energy in the government? In the executive. Actually, the Federalist introduces the need for energy in government considerably before it associates energy with the executive. To soothe republican partisans, the strong executive must be introduced by stages. (...)
The case for a strong executive begins from urgent necessity and extends to necessity in the sense of efficacy and even greatness. It is necessary not merely to respond to circumstances but also in a comprehensive way to seek to anticipate and form them. "Necessary to" the survival of a society expands to become "necessary for" the good life there, and indeed we look for signs in the way a government acts in emergencies for what it thinks to be good after the emergency has passed. A free government should show its respect for freedom even when it has to take it away. Yet despite the expansion inherent in necessity, the distinction between urgent crises and quiet times remains. Machiavelli called the latter tempi pacifici, and he thought that governments could not take them for granted. What works for quiet times is not appropriate in stormy times. John Locke and the American Founders showed a similar understanding to Machiavelli's when they argued for and fashioned a strong executive.
In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable. This means that the Constitution has the status of what was called in the 17th-century natural public law; it is an order as natural as the state of nature from which it emerges. In this view liberty has just one set of laws and institutions that must be kept inviolate, lest it be lost.
But Locke was a wiser liberal. His institutions were "constituted," less by creation than by modification of existing institutions in England, but not deduced as invariable consequences of disorder in the state of nature. He retained the difference, and so did the Americans, between natural liberties, inalienable but insecure, and civil liberties, more secure but changeable. Because civil liberties are subject to circumstances, a free constitution needs an institution responsive to circumstances, an executive able to be strong when necessary. (...)
The American Constitution is a formal law that establishes an actual contention among its three separated powers. Its formality represents the rule of law, and the actuality arises from which branch better promotes the common good in the event, or in the opinion of the people. In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong."
I hope that the idea that a "tension" between the rule of law and the "energy" of the Executive is somehow enshrined in the Constitution is too ludicrous to need refutation. The President is obliged, by Article II Sec. 3 of the Constitution, to "take Care that the Laws be faithfully executed"; and while, as Mansfield says, this is only one of his obligations, there is nothing in the Constitution about that obligation being limited to certain circumstances (e.g., Mansfield's "quiet times"), or to laws he thinks well-advised. There are no limits whatsoever on this obligation.
Mansfield is, of course, right to note that the Constitution "fortifies" the executive, in some sense. Certainly the framers of the Constitution were reacting against the Articles of Confederation, which were in force during the Revolution, and which had no independent executive at all. They believed that the country needed more "energy" than the Articles allowed for -- under the Articles, most Congressional actions required a two-thirds vote of the states, and the Congress had (for instance) no power of taxation; they simply got to bill the states, who sometimes declined to pay. A stronger executive than this is surely a good idea.
But he is absolutely wrong to argue that the Constitution provides for a "strong executive" in the sense he has in mind: an executive who can at times set aside the law. As I said earlier, there is no hint of this in the Constitution. On the contrary, the Constitution explicitly requires the President to execute the laws, without exception. In a section of his article that I did not quote, Mansfield claims that Alexander Hamilton supports his view. I don't think so. Hamilton lays out his view of the Executive in Federalist 69, and summarizes it by contrasting the President under the US Constitution to the King of England:
"The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism."
It's pretty clear that Mansfield is wrong, wrong, wrong about the Constitution. But the philosophy professor in me wants to add: he is also wrong, wrong, wrong about his supposed field, political philosophy and its history. For starters, he spends a lot of time quoting Machiavelli, and while he only actually says that Machiavelli is part of the backdrop against which the Constitution was written, he often seems to imply that he was one of the framers' sources or intellectual allies. (See, for instance, the two paragraphs beginning: "The best source of energy...") This is a sort of intellectual sleight-of-hand: noting that a work is part of the intellectual backdrop against which some document is written, and sliding to the completely different claim that the writers of the later document approved of, or sought to emulate, the earlier work. By the same sort of argument, one could claim that, say, Mein Kampf was part of the backdrop against which the Basic Laws of the State of Israel were written (which is surely true), and then proceed, on that basis, to use Mein Kampf as a guide to the terms used in those Basic Laws, or of their underlying philosophy.
In fact, there is not a lot of evidence that the framers were greatly influenced by Machiavelli. Apparently, Machiavelli's name appears three times in the collected writings of Madison (and of those, one is in "Madison's adolescent "commonplace" book", and one is a suggestion that the Continental Congress purchase his works), and twice (subscription req.) in Hamilton's (both are critical.) There's certainly nothing like enough evidence to justify using Machiavellian concepts to gloss the Constitution.
Locke and Montesquieu are, of course, a different story. Both of them were plainly among the major influences on the framers, and in the works of both, executives are quite powerful. However, this has a fairly obvious explanation: both Locke and Montesquieu were writing about political systems in which the executive was a king.
Montesquieu, for instance, would not have thought that the United States could possibly survive as a democratic republic. He believed that democratic republics absolutely required a wholly unnatural form of virtue, the creation of which required "the whole power of education", and in which all citizens completely identify their interests with the state's. "As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself." His examples of such virtue often involve Spartans: e.g., Spartan mothers rejoicing that their children have died fighting for their country.
Montesquieu's account of the separation of powers was not meant to be used in democracies at all, but in monarchies in which a king governed according to laws. In such a system, it is absolutely true that the power of the king is in constant tension with the rule of law; and one of Montesquieu's aims in writing The Spirit of Laws was to argue that monarchies were stronger, not weaker, to the extent that they allowed the power of the king to be checked by countervailing forces. (According to Montesquieu, absolute power is exercised not by monarchs but by despots, and the gulf that separates the two is one of Spirit's great themes.)
One of the things that makes our Constitution so original is this: while it is plainly inspired by Montesquieu's account of the separation of powers, the framers recognized that it was possible to take the mechanism he had described, whereby the executive, legislative, and judicial branches all have discrete roles and act to check one another's power, and (essentially) substitute a democratically elected President for a hereditary king. Montesquieu would not have thought that this was possible. Having made that imaginative leap, they could (and had to) dispense with many of the features that kings had historically had, like claims to absolute power. The powers of the executive the Constitution creates are limited by the Constitution itself, and they have no tendency to indefinite expansion.
To cite Montesquieu and Locke on the powers of the executive without noting that their executives were kings, and that the framers explicitly repudiated the idea of having kings rule over America, is not worthy of Harvey Mansfield. He surely knows his intellectual history better than that.