Harvey Mansfield On The Rule Of Law

by hilzoy

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."

Right.

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.

Comments

[nabalzbbfr]

It is indeed true that under normal circumstances, as envisaged by the founding fathers, the rule of law, separation of powers, etc. are sacred principles, not to be toyed with lightly. But the current times, especially after last year's elections are hardly normal. For our system of government to work correctly, all the branches of government should share a common purpose in advancing the welfare of our nation. After the fall election, President Bush and the Congressional Republicans extended their hand in bipartisan friendship. And what was the response? After some hypocritical posturing, the Democrat leadership spat in the President's face. But more importantly they went hellbent on a spree to sabotage our entire system of government, with reckless abandon, ignoring the damage that they are inflicting. Most notable, of course, has been the unfathomable irresponsibility of defunding our troops in the middle of war. But this is only the latest outrage. The list could go on for many pages, but let me mention only a few. Removing the best UN ambassador we ever had. Endless "investigations" based on the flimsiest pretexts, with the intention of bringing executive departments to a grinding halt. Persecution of able and honorable administration officials out of sheer vindictiveness. Conspiring with foreign interests to drive our representatives out of international organizations. I could go on and on, but my heart would burst with outrage.

So if one of the branches of government willfully acts against our national interests, the normal constitutional processes can't work as intended. So what is the President to do? Lie down and play dead and hope that they will eventually come to their senses? I would hope not! There have been other democracies which faced similar challenges in the past and were blessed with capable leaders who did what they needed to in order to straighten things out. India under Indira Gandhi and Chile under Augusto Pinochet come to mind. After weathering the storms, these countries have come back as bigger and better democracies than ever.

[CharleyCarp]

while the media devote endless amounts of time to trivialities, they do not seem to regard this as worthy of notice

Good post, and I agree with nearly everything you say. The quoted excerpt above, though, strikes me as creeping bril-ism. We can't really draw an inference from stories not covered, except, of course, that the owners of the media conglomerates think that stories about haircuts will sell more soap. And who's to say they're wrong about that?

[CharleyCarp]

nabal, I'm not going to check to see if this is a verbatim quote of your comment to Unqualified Offerings -- if it is, it seems to me that it's fair to expect you to say so. Everyone else, the UO http://highclearing.com/index.php/archives/2007/05/02/6336#comments>thread, including comment 13 from nabal, is worth a look.

[mss]

Times are such that I can no longer tell whether nabalzbbfr's comment is parody or serious right-wing thought. And if it is the former, it will be the latter too, soon.

After all, I saw an earnest commenter yearning for an American Pinochet just yesterday on Free Republic.

[Joe Thomas]

Is everyone pretty good at recognizing trolls and ignoring them? Good. 'cause I'd hate to see this comment thread hijacked by a troll.
Speaking theoretically, of course.

[rilkefan]

"the owners of the media conglomerates think that stories about haircuts will sell more soap"

The pundit class is less influenced by this. (For all I know Herbert is all over civil liberties on the NYT op-ed page.) Plus there's probably a Pulitzer to be won - actually, wasn't there?

[rilkefan]

"Creeping bril-ism"

A phrase soon to be common in metal lyrics.

[mss]

It wouldn't be totally inappropriate to devote this thread to trolls, however, since Harvey Mansfield plays that role himself in the Harvard Government Department.

[hilzoy]

CharleyCarp: I dunno. I think that 'you didn't cover that!' arguments are stronger against a newspaper than a blogger: bloggers, after all, do not pretend that they are going to cover everything (thank God!), whereas newspapers have mottos like "all the news that's fit to print".

I do think you have a point about ascribing motives to them: I probably should have said something like: they don't act as though this is worthy of notice, rather than: they don't seem to regard it as worthy of notice.

On reflection, I'll update. Thanks.

[Gary Farber]

"After the fall election, President Bush and the Congressional Republicans extended their hand in bipartisan friendship. And what was the response? After some hypocritical posturing, the Democrat leadership spat in the President's face."

Just to note: this is yet another example of the general uselessness of talking in pure metaphor.

Whether someone did or did not metaphorically "spit" in someone's "face," or "extended their hand" isn't a question of fact, and can't be debated, and any attempt to engage in such a "debate" would be pointless and useless.

This is what makes this a much better level of troll than bril's, incidentally.

Facts can be debated. Metaphors can't be. It's a fool's game.

(Which is also another reason why I keep pressing for Charles to demetaphorize, and concretize, his "they have turned their backs" metaphor, which is otherwise naught but shadow and fog.)

Superb post, by the way, Hilzoy. The usual assertions of undying admiration and adoration go here.

[dmbeaster]

Shorter nabalzbbfr -- If I don't get my way, I am entitled to go postal on you. And that's democracy.

More fascist blather from nabalzbbfr.

[rilkefan]

Unfogged has outlawed all analogies - Gary says the metaphors must go - I guess along the lines of tell, don't show. Ok - but leave me my iambics, please.

[Gary Farber]

"Gary says the metaphors must go"

Metaphors are an absolute necessity in poetry, in fiction, and in a number of types of non-fiction.

And beautiful, besides, and necessary if only for that.

Just not so much in arguments.

[Katherine]

I think your update was entirely unnecessary. The press has an obligation to care about more than selling soap if they want to be worthy of the name, and they routinely act as though they do....It wasn't soap salesmanship that got freedom of the press specifically mentioned in the first amendment, and it's not soap salesmanship that justifies reporters' privilege. There is very little you can't excuse with "we're giving the public what it wants!", but actually: (1) it's hard to tell if you don't give the public the option of decent coverage; (2) the relationship between the public & the press is a lot more symbiotic than that.

[Gary Farber]

Besides, it seems to me (I'm prepared to be convinced I'm wrong) that metaphors in arguments are telling, rather than showing.

Facts show. They demonstrate facts.

Metaphors relay. They tell you what to think without showing facts.

But perhaps I'm wrong on that, which is, I hope it's understood, a complete digression from anything else I've said about the place of metaphor in arguments -- about which I've never said they had no place.

I'm unlikely to argue about metaphors, though. As ever, my own opinion is not, fortunately, universal law.

[Katherine]

Sorry, the line about reporters' privilege wasn't clear. I should have said, it's not soap salesmanship that justifies arguments that reporters should be able to protect their sources in court.

OT: for some reason nabalzbbfr's post is reading to me like a liberal impersonating a conservative. If I'm right about that--cut it out. It's annoying.

[dr ngo]

Don’t tell, don’t show, it’s all the same,
But leave me my iambics, please.
If metaphors are not the game (*)
Tetrameter is sure to please.

(*) Apologies for metaphorical slips:
Errata just leap from my virtual lips;
Dactylic delusions deprive me of rest
Pretending they’re nothing but weak anapests.

[rilkefan]

Why can't our arguments be poetry? The Chaits of the world will no doubt say that anything but fact and fact and fact is propaganda, but I don't agree. The brain I use to follow hilzoy's thought is also what I use to read Perec. And what a way to weed out all the trolls...

[dr ngo]

I should have made clear that the previous bit of doggerel (Leave Me My Iambics, Please) was inspired by, and is dedicated to, rilkefan, who is [conventional disclaimer] not responsible for what I've done with it [/conventional disclaimer]

[sidereal]

I'm sick of Straussians.

[rilkefan]

Tell all the Truth but tell it slant—
Success in Circuit lies
Too bright for our infirm Delight
The Truth's superb surprise

As Lightning to the Children eased
With explanation kind
The Truth must dazzle gradually
Or every man be blind—

[Pascal's bookie]

"After some hypocritical posturing, the Democrat leadership spat in the President's face."

Oh please, don't let this be a metaphor. I'd so love to see that. It's not on youtube though. :(

But then if there was footage of this it would surely be a pay per view fundraiser for the DNC. Even though I'm a dirty foreigner I'd pay ten of your shrinking dollars to watch that.

I know. dnftt.

[rilkefan]

"not responsible for what I've done with it"

"Responsible" in hilzoy's universe, not mine - I was a cause of what you did. I loosened - knowingly - the salsa lid; I put the racing tires on the hearse.

[Gary Farber]

"Why can't our arguments be poetry?"

Yours can be!

I tried to indicate that I wasn't issuing a ukase, but merely saying that I, myself, couldn't competently argue metaphorically very often -- that is a task best suited to those more talented than I am, if they are to succeed -- and that not so many other folks, other than those who are fine writers, are suited, either -- but, alas, as is so often the case, clearly I failed.

See, that's why I need to leave metaphor-as-argument alone.

Ditto Charles. A fine poet: that's a different person than him or I.

In my opinion.

Besides, I'm past my beddy-bye time now, and that's about as close as I will come, before sleep, to an apt metaphor: which is to say, not even close.

[hilzoy]

Eh. Good metaphors tend to be comprehensible. There's a type of metaphor that I wouldn't use in discursive prose (Juliet? Like the sun? in what respect?), but lots that I would.

[rilkefan]

I jeest, I jeest, of course - no frying-pan ukases flying Garywards from me. You're absolutely right that tools must fit the user's hand - and sharp tools most of all.

[Philip the Equal Opportunity Cynic]

OT: for some reason nabalzbbfr's post is reading to me like a liberal impersonating a conservative. If I'm right about that--cut it out. It's annoying.

Yeah, that's the thing these days. You really can't tell. When your followers' arguments are indistinguishable from everyone else's parodies (NOT JUST LIBERALS'!) then you're probably headed for electoral disaster. But we knew that.

Indeed, it is annoying.

[Gary Farber]

"nabal, I'm not going to check to see if this is a verbatim quote of your comment to Unqualified Offerings"

I didn't bother to check, but here it is.

Verily, the definition of spam: pasting in the same comment, regardless of content, over and over again.

Why on earth would people not regard that as an attempt at honest debate? What a fine way to discredit the conservative and Republican position; presumably, that was nabalzbbfr's goal, indeed.

[washerdreyer]

Machiavelli's relationship with the Rule of Law is pretty ambiguous too, he speaks in its favor in The Discoures. Part of this is that government will be better able to expropriate from the populace if it does so in lawful matter, but nevertheless.

[Anarch]

Strangely, I stopped reading at the beginning of the second paragraph. I've read enough honest fascism in my time, why waste my time on the fulsomely dishonest kind?

[Hartmut]

It is not Mansfield's first offense.
Here from the venerable http://www.weeklystandard.com/Content/Public/Articles/000/000/006/563mevpm.asp?pg=1>Weekly Standard from January last year:

To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force.
[...]
To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger.

[Gary Farber]

"To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger."

Also, I am Batman.

[Phil]

Now is it OK to call them fascists?

[cleek]

i think i'd feel less apprehensive about their claims that the executive is allowed "extra-legal" powers during wartime, if they weren't also doing their damnedest to keep us in perpetual war.

Bush really is the worst president, ever.

[G'Kar]

Who is the 'them' you would like to call fascists, Phil? Are you assembling an enemies list, or would you prefer to tar anyone whose beliefs disagree with yours?

[OutOfContext]

The "living constitution" conceived by the Progressives actually makes it a prisoner of ongoing events and perceived trends.
And...
Because civil liberties are subject to circumstances, a free constitution needs an institution responsive to circumstances, an executive able to be strong when necessary.
I am confused about the difference between a 'living constitution' and a 'free constitution' in Mansfield's interpretation. Also confusing is the premise that the executive is less susceptible to being 'a prisoner of ongoing events and perceived trends.'
Better a living strong-man than a living constitution agreed upon by the collective will of the governed?

[cleek]

Now is it OK to call them fascists?

definitely. it's also time to stop calling them "conservatives".

[zmulls]

The "rule of law" includes the provision that the Executive walk away from the job after four or eight years (or, before the Constitution was amended, when the electorate decided they wanted a change).

Could that rule of law be set aside in turbulent times by a strong Executive? If a wise and benevolent leader deems it necessary to stay in office longer to protect the country, could s/he simply announce it?

[G'Kar]

Could that rule of law be set aside in turbulent times by a strong Executive? If a wise and benevolent leader deems it necessary to stay in office longer to protect the country, could s/he simply announce it?

Let's hope not. I suspect that only an Executive who had developed a cult of personality a la Roosevelt could get away with it. I think we're pretty safe with the current Oval Office occupant.

[J Thomas]

I suspect that only an Executive who had developed a cult of personality a la Roosevelt could get away with it. I think we're pretty safe with the current Oval Office occupant.

You mean, because if he declared himself President For Life the military wouldn't support him in it?

[Jay C]

"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."

What struck me the most, and worst, about Mansfield's piece was just as emphasized in this extract: that he views the "strong executive" and the "rule of law" as adversaries - and indeed, seems to take it for granted that this should be so. I dunno, but my whole life long, I have always thought that the American system has viewed the Executive as the servant and protector of the "rule of law", not its enemy. Maybe this attitude, as
Prof. Mansfield would no doubt concur, is some sort of naive idealism unsuited for the authoritarianism-necessitating times we live in (though he doesn't provide much factual evidence for that "necessity"): but it is still, imo, a superior form of governance than the thinly-disguised Machiavellian quasi-monarchism the good Professor seems to be advocating.

And btw, G'Kar: the advocacy of this sort of unaccountable strongman rule may not quite be a pitch for "fascism" in the good-old-fashioned boots-uniforms-colored shirts massed-torchlight-parades-to-the-bookburning sense: but is certainly just as far outside the mainstream of American political philosophy to warrant whatever dismissive perjorative gets attached to it. If you find "fascism" to be inaccurate, please feel free to come up with another term: just so the "perjorative" sense is still unmistakable.

[Katherine]

I would like to think that even the Republicans would vote to impeach & convict if President Bush declared himself President-for-Life...Mansfield's argument is so STUPID as well being repellent:

--It is possible that the decisions of one wise man will be smarter than collective decisions.
--Therefore, one man rule is superior to the rule of law as a source of wise, reasoned, decisions!

[G'Kar]

I mean because almost nobody would support it. I don't have Bush's current approval ratings in front of me, but let's say for the sake of argument he's at 35% (which I suspect is well high of the mark). Of that 35%, it's hard for me to believe more than (at most) half of them would support a declaration that he was becoming President for Life. And while it's not impossible to run a country with only the support of a small minority, I think that the traditions of the U.S. and the number of people who would stand up to disagree with him would prevent it from occurring.

[G'Kar]

Jay,

I didn't question the use of the term 'fascism.' (Although I don't necessarily support it either, since fascism actually means something beyond 'something I don't like'.) I asked who 'they' were.

In other words, I'm curious who it is being labelled with the pejorative, not the pejorative itself

[john miller]

There is so much in this rant by Mansfield to object to, but I will focus on only two of them.

The first is the very last line: "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."

The problem with this is that, AFAICT, the person who makes the determination of what a stormy time is is, by Mansfield's thinking, the very executive who benefits the most from that determination. How is it to be determined that that determination is at all approrpiate?

Mansfield appears to assume that the executive is, almost by default, the personification of "the living intelligence of a wise man." That is an awful lot to assume.

Additionally, I wish he had described those republics which he percieves as " disastrous failure(s), alternating between anarchy and tyranny, seeming to force the conclusion that orderly government could come only from monarchy, the enemy of republics."

Those of which I am aware of, and I acknowledge up front that I am not an expert in the field, became tyrannies primarily through one person who decided that a stormy time had arrived and convinced enough people to abrogate their authorities to him.

The danger of any democracy (including the republican form) is, as Churchill pointed out, that it has a built in mechanism to destroy itself, and if a potential tyrant can convince enough people that a sufficiently stormy time has arrived and continues to exist, then that can be the result.

I think one issue that the major media has to examine itself on is whether or not it looked at the current world and attempted to determine if what exists is really that much of an existential threat to us that it requires that super strong executive.

I am sure that people such as Mansfield would be very aghast at having someone like FDR or any of the current crop of Democrats running for the Presidency declare that they were above the law because of the stormy time in which we find ourselves.

[john miller]

Oh, and BTW, I would also be aghast if any of them did so.

[cleek]

I asked who 'they' were.

to me, it seems obvious, that 'they' are the people who've been advocating for this expanded, Unitary, extra-legal executive for the past 6 years - the John Yoo, Cheney, Gonzales, Mansfield gang, as well as their dozens of supporters in the media.

maybe they aren't necessarily 'fascists'. but they are leaning in that direction:

Anti-individualistic, the fascist conception of life stresses the importance of the State and accepts the individual only in so far as his interests coincide with those of the State, which stands for the conscience and the universal will of man as a historic entity.... The fascist conception of the State is all-embracing; outside of it no human or spiritual values can exist, much less have value.... Fascism is therefore opposed to that form of democracy which equates a nation to the majority, lowering it to the level of the largest number.... We are free to believe that this is the century of authority, a century tending to the 'right', a Fascist century. If the nineteenth century was the century of the individual (liberalism implies individualism) we are free to believe that this is the 'collective' century, and therefore the century of the State. - Mussolini

not every bit fits, no question. but certain core elements are in place.

or, from Robert Paxton:

1. a sense of overwhelming crisis beyond reach of traditional solutions;
2. belief one’s group is the victim, justifying any action without legal or moral limits;
3. need for authority by a natural leader above the law, relying on the superiority of his instincts;
4. right of the chosen people to dominate others without legal or moral restraint;
5. fear of foreign `contamination.

nobody should have to work too hard to come up with examples of those.

(all from Wiki)

[zmulls]

I was tongue-in-cheek about a President declaring him/herself "President for Life" but only just so.

It's really a prime element of our government -- it's a caution to the Executive to be prudent in what s/he does, because at some point s/he will have to leave. And someone else will be "in charge." Power is, by definition, finite.

I wish I could envision a circumstance under which impeachment would be viable. I'll hope, but I don't think it will be possible by January 2009, for a host of reasons.

But the very notion of a President declaring that "I'll only execute the laws I like or agree with" is the very definition of an impeachable offense.....

[Fraser]

"To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force."

I can state for a fact that some of my local Republicans have no problem with the president being bound by law as long as it's applied to someone other than a Republican president. And I suspect the same is true of the national party leadership.
So by Mansfield's logic, can I meet them with extra-legal force?

[Praedor]

I am confused about the difference between a 'living constitution' and a 'free constitution' in Mansfield's interpretation.

I think it is quite clear. Given the source AND the rag it was printed in, we can 'living Constitution' to mean, "the Constitution says whatever der Fuhrur needs it to say at any given moment", and 'free Constitution' to mean that they didn't copywrite it nor did they trademark it so it is free (to copy, modify, shred, use as toilet paper advertisement, re-word, etc).

Quite clear.

[matttbastard]

Matthew Lyons:

There's no question that ugly changes are taking place, with serious implications for political activism and daily life now and in the future. But to call this a trend toward fascism doesn't help us understand what is going on in the United States, and it doesn't help us understand fascism.

[...]

IN CONTRAST TO FASCISM, the Bush administration represents a much more conventional form of capitalist authoritarianism. Bush has significantly eroded the liberal-pluralist political system by increasing state repression, claiming a presidential blank check to ignore the law, and promoting an atmosphere of political conformism and national siege mentality. Some pro-Bush factions promote populist hostility toward so-called liberal elites. But the Bush regime is in fact controlled by traditional political elites within established institutions -- it lacks fascism's totalitarian mass mobilization, promotion of a new outsider elite, and vision of sweeping cultural and political change. Even in the crisis atmosphere following the September 11th attacks, President Bush urged people to live their lives as normally as possible. And while fascism challenges capitalist control of the state and attacks bourgeois values such as individualism and consumerism, the Bush administration is solidly and unambiguously pro- capitalist.

The essay is worth reading in its entirety, although I don't agree with all of Lyons' conclusions - especially his contention that America lacks a "new outsider elite". (Wouldn't the religious right fit the description? Chris Hedges certainly thinks so.)

[Hartmut]

A fact not that well-known: Hitler did not abolish the Weimar constitution or replace it with a new one. His power officially rested in the union/combination of the offices of Reichs-Kanzler and Reichs-Präsident* and the Enabling Act. There were still elections etc.
It looks like Mansfield has some similar ideas and considers Article 2 of the US constitution as equal to Article 48** of the Weimar one.

*Also CIC of the armed forces (that swore their oaths to him).
**Allowing the Chancellor to rule by Emergency Edicts with the consent of the President

[OCSteve]

for some reason nabalzbbfr's post is reading to me like a liberal impersonating a conservative. If I'm right about that--cut it out. It's annoying.

Yeah – cut it out. It’s my job to impersonate a conservative.

[Paul]

feel free to come up with another term: just so the "perjorative" sense is still unmistakable

"Caudilloism" is a good enough description. I prefer that to "fascism," actually. Say what you want about fascism, at least it's an ethos. I don't give the current Administration even that much credit.

[Brett Bellmore]

I think it's actually somewhat refreshing, in a way, to encounter somebody who's both objective enough, and honest enough, to realize that they're opposed to the rule of law, and forthrightly state it.

Opposition to the rule of law is quite common. "Living" constitutionalism, where a Constitution which lays out formal procedures for amendment is 'changed' without using those procedures, for instance, is a gross violation of the rule of law. Which is why Mansfield also approves of it.

[cleek]

Opposition to the rule of law is quite common.

for example, when a law is changed by a president's "signing statement".

[Brett Bellmore]

Agreed. I just want it clear that the President isn't the only one shredding the rule of law these days. It's endemic.

[radish]

the John Yoo, Cheney, Gonzales, Mansfield gang, as well as their dozens of supporters in the media.

Notably the editorial board of the WSJ. Yes, G'Kar, I'm comfortable asserting that the editorial board of the WSJ are fascists (though to be honest I prefer either Il Duce's own "corporatists" or better yet James Maclean's "falangists").

Of course I'm saying that purely anecdotally. I wish I had time to collaborate on a little online research project... agree on some plausible definitions of fascism plus some other political philosophies, then compare a corpus of editorial essays published in the WSJ to each of those definitions. It wouldn't be scientific exactly, but it might be educational.

[katherine]

"Living" constitutionalism, where a Constitution which lays out formal procedures for amendment is 'changed' without using those procedures"

The text of the Constitution doesn't change without amendment; its interpretation and application does. Application of the law always takes account of both law and facts. That's all many (I'd argue most) advocates of the "living Constitution" really mean when they use that term.

[OCSteve]

OT: (Sorry, no recent open thread.) It’s not just Andrew. The Army is pretty much shutting down all blogging by active duty. Well, you can blog if you get every post approved by your superior officer. Even emails it appears. OPSEC is obviously important but this is just dumb.

[ThirdGorchBro]

Nice The Big Lebowski reference, Paul.

I'm curious to know if arguments like Mansfield's have been advanced before in American political thought. There have been Presidents who pushed the boundaries of their constitutional role before, but I wonder how many (if any) ever laid out theories like the "unitary executive" to back it up.

Any presidential or constitutional historians in the audience?

[Brett Bellmore]

Yeah, Katherine, that's all "many" living Constitutionalists will tell you they mean by it. As I said, Mansfield is refreshing for his objectivity about what he really believes, (No self delusion there!) and his honesty in stating it. He's not pretending, even to himself, that he really treasures the rule of law.

[Anarch]

Yeah, Katherine, that's all "many" living Constitutionalists will tell you they mean by it. As I said, Mansfield is refreshing for his objectivity about what he really believes, (No self delusion there!)...

Cute accusation but happily, no.

[JohnTh]

As pedantic point, the form of government outlined by Mansfield (a strong executive only voluntarily bound by law and custom) has a perfectly good name - and it isn't fascism, but dictatorship. Elective dictatorship in this case. The root of the word is quite instructive - in the republican Roman form of government the executive was formed by two Consuls, who had wide ranging executive authority but could be held to account for their breaches of law and custom after their 1-year term of office. A Dictator was essentially a single Consul who was completely indemnified against prosecution for breaking any law. The fact that he often tended to adhere to many of the laws was irrelevant - he did not HAVE to do so. Consuls did.

[john miller]

hilzoy, a further comment, this time about one of your statements at the beginning of this post: "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."

This is, of course, the beauty of the approach by the current power in the conservative/Republican movement.

For years they used their hit-men, such as Limbaugh to galvanize the base by demonizing Democrats, progressives, liberals, etc. Once they felt that base was secure, they moved on to a more intellectual approach. Of course, 9/11 gave them a significant opportunity to do so.

Their basic assumption is that most people, when presented with arguments like this one, will not be careful, and focus more on the danger in our times of relying too much on our legislature to protect us, and not enough on the executive who is the only one who can truly keep us safe, but only if his/her power is not checked by those pitiful people who place law above security.

This whole argument is merely a more sophistcated form of Cheney's and Guiliani's "A vote for a Democrat is a vote for al Qaeda" theme.

[Steve]

George Washington would be so proud, wouldn't he?

[Brett Bellmore]

"The text of the Constitution doesn't change without amendment; its interpretation and application does."

The only purpose of the text is to dictate interpretation and application. If they can be changed without changing the text, then the text becomes worthless.

After all, Bush with his signing statements is only changing "application and interpretation", not the text of the law.

[John Thullen]

When do metaphors become facts?

There seems to be a rash of yearning for authoritarian rule lately (Sowell, Mansfield, trollish commentators), which the non-literal among us view as passing metaphors cast into the increasingly poisoned atmosphere like so many noxious particles by those frustrated at the sorry turn of events for their Party, which they mistake for their Country.

At what point do conditions coalesce around the noxious particles to produce a 500-year storm of some kind with hailstones the size of tanks (you'll notice hailstones are never happy being facts unto themselves but must have their essential hailstoneness described in a simile) and cleansing torrents of martial anger flooding the streets?

Pat Robertson speaks literally and factually, and not as a poet, when he relishes the sinners of New Orleans being consumed by factual hurricanes in his weather predictions.

The rest of us treat his ravings as metaphor, so we can't prosecute him for siccing his God on an American city.

Who is right?

The yearning of a Chilean citizen sitting over tapas at the street cafe during the Allende era expressing the desire for a metaphorical Pinochet to step up and solve the guy's tax problems becomes fact as his tax problems have their bellies slit open and are fed to the fishes by a factual Pinochet. Then the factual Pinochet is resurrected as metaphor in this country for what might be needed to sooth various complaints.

Should I view my viscera as metaphorical fish food or take factual measures to avoid being disappeared?

Here's a primer on how to tell the difference between fact and metaphor:

Thomas Sowell, some months after a right-wing military coup, is named Chancellor of a major west-coast university and oversees the sacking and detainment in unknown locations of much of the faculty for unAmerican activities. He includes the following pronouncement in a major speech before the newly named General Ripper Institute:

"It is a Fact that draconian measures were necessary to restore the promise of the Founding Fathers for a moral and taxless America."

..... or......

Thomas Sowell, having been kidnapped by Leftist reactionary forces hidden in the Sierra Nevada two years after a right-wing military junta replaced representative government in the United States of America, is tied to a chair and has his nether regions hooked up to a car battery for interrogation.

He is asked by his captors: 'Is it a fact that you said in 2007 that "the only thing that can save this country is a military coup".'

Sowell: "For the love of God, and Milton Friedman, and my Mommy, who I wish would show up shortly, those words were meant as pure Metaphor."

[Anarch]

IN CONTRAST TO FASCISM, the Bush administration represents a much more conventional form of capitalist authoritarianism.

Perhaps, but since that's the core of Mussolini's syndicalism* -- not to mention having eerie similarities to the Fuhrerprinzip -- I'd be loath to say that somehow this disqualifies the phenomenon from being called fascism. Throw in...

1) The peculiar form of hypernationalism indigenous to America, which usually operates under the guise of American Exceptionalism but in fact is something much darker. It's the attitude that lets us seize citizens of other countries without benefit of charge or trial, and which prevents our citizens from being given serious penalties for their crimes against foreign citizens; the attitude that our democracy is so meritorious that it can, and should, be exported by force; the solipsistic belief that international rules apply to all countries except America; and so forth.

2) Its obverse, namely a fear (bordering on xenophobia) of a foreign Other who must be resisted at every turn in a neverending War whose pursuit justifies almost any action: violation of sovereignty, preventive invasions, lying to the public (cf Leo Strauss) in order to pursue these aims etc., and the belief that civil liberties exist only insofar as they don't conflict with this War.

3) The fetishization of the military and militaristic pursuits, especially by those who choose not to serve. Innumerable examples available on request if such are needed.

4) A burgeoning class-based system wherein those of the upper class(es) are granted rights not available to those of the lower classes premised on some kind of inherent moral authority. See the forgiveness of Limbaugh's drug addiction -- my personal favorite was that he needed to get hooked on Oxycontin because it was the only way he could cope with liberal criticism -- the forgiveness of Ted Haggard or Bill Bennett or, for that matter, a solid quarter of my graduating class. Late Night Shots is a good illustration of the latter attitude, though (thankfully) I went to a different school. It's often accompanied by a total failure to not just understand, but even envisage, the travails of the lower class(es).

[This is really an offshoot of certain aspects of capitalism, I suppose, but I think it's both widespread and distinct enough to merit inclusion here.]

5) Certain aspects of the religious right -- I'm thinking the Promise Keeper rallies, as well as the theological view that Bush was divinely ordained to become President, the perpetual "victimization" of Christianity, those sorts of things. Note the words "certain aspects" there; I am not by any means accusing all members of the religious right, though I am tarring many of the movement's leaders (e.g. Dobson) as such.

6) Obsession over a previous "golden age" and its idealized mores and virtues, with the intent of returning the country to its previous stature. PNAC's Cold Warrior view of American hegemony, the religious right's fetishization of the 1950s, the yearning towards the muscular expansionism of the nineteenth century, all of these fit the bill.

7) A river of demogoguery, whether by chance or design, to keep the populace in a state of ignorance, anger and fear. This covers everything from FOX News' sensationalism and propagandistic offerings to talk radio to the Terry Schiavo "Not dead yet!" debacle, the global warming skeptics, the anti-evolutionists, the creationists, and so forth.

...and all of a sudden you're looking at the beginnings of a homegrown fascist movement. It won't be the same as other fascist movements, true, but each movement is unique to the country which spawns it.** To that end, G'kar, I'd argue without a doubt that any of a number of people that I've cited are proto-fascist and some, such as the architects of unitary executive, are indeed fullblown fascists.

Thankfully, Bush's errant incompetence has stymied this confluence of proto-fascist leanings. It's not at all clear to me that this is a permanent setback, though, and we need to remain vigilant against its renewal. I realize that there's a taboo against calling fellow Americans "fascist" -- though ironically there's no such taboo against labelling people Socialist and Communist -- but it ill-serves our country to mince around the very real danger they represent because of some aberrant notion of "civility".

* As distinct from, say, the rest of Italian syndicalism or really much of Mussolini's rhetoric. The theory of a worker-inspired upending of capitalism never really matched the truth.

** As any hypernationalist movement must be.

[Katherine]

"The only purpose of the text is to dictate interpretation and application. If they can be changed without changing the text, then the text becomes worthless"

It's a cliche to trot out Brown v. Board of Ed and Loving v. Virginia at this point in the argument, but I am fascinated to know whether you can explain: 1) how they were NOT changes to the interpretation & application of the 14th Amendment, or 2) how they made the text of the 14th Amendment worthless. But basically I think you have has much basis for making claims about my intellectual honesty & commitment to the rule of law as I have for claiming you hate kittens and puppies. And I'm sorry for assisting in your efforts to drag every thread ever about this administrations violation of the Constitution, the rule of law, and liberty off topic through accusations of hypocrisy against bad faith against people who disagree with you about the second Amendment and the Commerce Clause. So I may not actually respond further on this one.

[Anarch]

Duh, forgot the other obvious "Golden Age" phenomenon: the fetishization of the Confederacy. Lost cause my ass.

[Anderson]

Brett, let's grant your assumption that the Supreme Court's "living Constitutionalism" does indeed *change* the law. Let's use Roe as the example.

There's still no comparison to what Mansfield calls for. The Court says "the Constitution creates or recognizes a right to abortion." If that REALLY struck most people as an outrageous imposition, the Congress could pass an amendment -- "Nothing in this Constitution shall be construed as creating or recognizing any right to an abortion" -- and the states could ratify it.

In other words, while the Court has a great deal of power, it's still bound by the rule of law.

Whereas Mansfield is making an argument that an Executive just is able to disregard any law. If an amendment were passed to hobble this supposed ability, the Executive could disregard that, too. Because, hey, disregarding laws is just what Presidents are supposed to do, according to Mansfield.

--Mansfeld's translation of The Prince is said to be a good one, but man, what a stupid article.

[Steve]

The only purpose of the text is to dictate interpretation and application. If they can be changed without changing the text, then the text becomes worthless.

The thing is, Brett, that the Constitution - as distinguished from a private contract - was deliberately drafted with many vague and open-ended terms, precisely because a supermajority had to be convinced that "don't worry, this document says what you want it to say!"

Compare the success of our Constitution with the recent EU constitution, which contained hundreds of pages of maddening detail and never had a chance in hell of being ratified.

Consider, for example, the Ninth Amendment - the one which says just because a right isn't specifically enumerated in this document, that doesn't mean it's not protected! This kind of language would never fly in the case of a private contract (imagine if your lease said "just because this contract doesn't grant the landlord a particular right, that doesn't mean he doesn't have it"!). But in the context of a constitution, it's a way of persuading a supermajority by saying "don't worry, all your personal sacred cows will still be protected, even though we didn't list them!"

In interpreting the Constitution, you have to deal with the empirical fact that the people who ratified it privately understood it, in some cases, to mean wildly different things. This was a feature, not a bug; if the Framers had written a lawyerly document with only one possible interpretation, it never would have been ratified by a supermajority.

Which all leads up to my conclusion that pure textualism is impossible when you're dealing with a constitution that was deliberately drafted to permit multiple interpretations. I don't care that you think textualism is the only valid way to interpret a document; maybe you're right. But it's simply impossible to apply textualism to every part of the Constitution, and anyone claiming to possess the one and only legitimate interpretation of the Constitution is just wrong.

[G'Kar]

to me, it seems obvious, that 'they' are the people who've been advocating for this expanded, Unitary, extra-legal executive for the past 6 years - the John Yoo, Cheney, Gonzales, Mansfield gang, as well as their dozens of supporters in the media.

'They' is always obvious when you're part of 'we'. When you're not in 'we', defining the term becomes a little more important. When people are being put up against the wall it's a little late to wonder if you're part of 'they'.

So by Mansfield's logic, can I meet them with extra-legal force?

An excellent illustration of the point.

But the very notion of a President declaring that "I'll only execute the laws I like or agree with" is the very definition of an impeachable offense.....

Absolutely right.

[dbomp]

Most bothersome to me is the subtext that this president should throw off the shackles of law because these are especially "stormy times". They're not. Take each of the last 220 years, throw them in a hat, and pull them out one by one and evaluate for storminess. Would "2007" be near the top of the stormy list? I doubt it. We've had way bigger wars than this (1812, 1848, 1917-18, 1941-45, 1950-53, 1898), far more dangerous external adversaries (1946-89), far more internal conflict (1861-65, 1968), and far worse economic conditions (1893-97, 1930-39).

What we have now is a pretty small war, foreign adversaries who can create spectactular disasters but who are no threat to the essence of our nation, and pretty typical political tensions. These are not special, stormy times deserving of dictatorship.

[Anderson]

These are not special, stormy times deserving of dictatorship.

Which of course brings to mind one of Hilzoy's classic posts, on Bush's assertion that "at least, my age, when I was going to college, I never dreamed that the United States of America could be attacked."

[cleek]

These are not special, stormy times deserving of dictatorship.

true. but, there are plenty of wingnuts who desperately want this to be one of those times. a typical VDH/Tacitus/Jules Crittenden screed is all about trying to put today's events in the league as all those Glorious Battles of Yore.

[Jackmormon]

This op-ed is dangerous nonsense.

[Brett Bellmore]

"If that REALLY struck most people as an outrageous imposition, the Congress could pass an amendment -- "Nothing in this Constitution shall be construed as creating or recognizing any right to an abortion" -- and the states could ratify it.

In other words, while the Court has a great deal of power, it's still bound by the rule of law."

I think you don't have the slightest idea what "the rule of law" means, if you think that's an example of the rule of law.

[Ara]

OT: Anyone wanna talk about the Obama-MySpace flap? I kinda do. It's kind of irritating me, and I'd love to hear if someone has a good justification for it.

[cleek]

Could that rule of law be set aside in turbulent times by a strong Executive? If a wise and benevolent leader deems it necessary to stay in office longer to protect the country, could s/he simply announce it?

Rudy G tried it as Mayor, in 2001.

[Ara]

Has anyone noticed how bizarre his two supposed defects are?

First there is the claim that law is "always imperfect" and "an average solution even in the best case".

First, how far from imperfect are these solutions? If laws are just slightly off some kind of ideal perfection, the complaint's neurotic and childish.

So let's say it is an SEC law that public corporations have to disclose quarterly reports. And let's say that there is some company for whom, for whatever reason, they really ought not disclose their filings. (I know, even setting up the assumptions sound far-fetched). Should we really ditch the whole SEC regulation because it inconveniences one company for one quarter, when it ought not? You can say I'm begging the question, since the perfect thing to do would be to honor the SEC regulatory system despite what that one company needs, but if I am, then what your hypothetical executive is doing is simply making principles and law, not deciding things on a one-off basis.

Besides, why would we think King George, bidding and unbidding would be any closer to perfection than the application of law would? After all, we make laws in part to make our decision procedures both more fair (by disclosing them) and more effective (by codifying them. Do we really have such little faith in reason that we'd give it all up and defer to the judgements of one person who wouldn't even need to adduce principles for his decisions? Really?? Mansfield's like the freshman philosophy student who points out a hard case and then uses it to conclude that there's just no such thing as truth or objectivity at all.

Really, I think what's beneath this is this view of the law as a mechanism towards efficient outcomes, rather than law as a groundwork to coordinate and incentivize people's actions.

The second defect is even more silly. The laws can't enforce themselves, but people can use force. What's the best way to use force? The President! "It is a delusion to believe that governments can have energy without ever resorting to the use of force." Yes, and no one believes it. I'm sorry, when I say I support the rule-of-law, I wasn't under the impression that the rule-of-law was an armada of 4 ton cyborgs that would patrol the skies mercilessly enforcing obedience. So we need human police. But: "The best source of energy turns out to be the same as the best source of reason--one man."

I have no idea why one man's authority is somehow the ideal form of law enforcement. Mind you, we have local, county, state, and federal law in this country. I guess Mansfield really thinks the Framers were all wrong to with a federalized system.

But is Mansield willing to accept that the President is the best source of reason? You know, I bet he's a free-marketeer. Would he be willing to accept that the President is the best source of price information?

In that case, I hope the next President decides that the opinions of authoritarian-bent sophists and the newspapers that print them aren't worth the paper they are printed on.

[cleek]

OT: CNN.com's reporting :

Democratic presidential candidate Barack Obama has been placed under the protection of the U.S. Secret Service, reportedly because of a threat against him, the Secret Service said Thursday.

no story yet.

[dmbeaster]

OCSteve:

OT: (Sorry, no recent open thread.) It’s not just Andrew. The Army is pretty much shutting down all blogging by active duty. Well, you can blog if you get every post approved by your superior officer. Even emails it appears. OPSEC is obviously important but this is just dumb.

If only it was just a dumb heavy hand. Unfortunately, there are way too many instances of opinions favorable to Bush positions from members of the military being actively aired by the administration. It's about message control, and using the power to censor negative or even just off-message comments from members of the military.

It's about using the military as a propaganda device.

[wonkie]

It will be a miracle if we can get through this election year without the assasination of one of the Deomcratic candidates.

The thing about the right wing extreme is that thhey absolutley cannot lose. They can't .

Like Sowell, if they can't get their way democratically (sort of), then they'll try through hhe subversion of government agencies and if that doesn't work....

Add to that the humilation of losing a war.

[Newport 9]

OPSEC is obviously important but this is just dumb sinister.

Fixed.

[Brett Bellmore]

"The thing about the right wing extreme is that they absolutley cannot lose. They can't."

Unlike the left wing extreme, which absolutely can't admit having lost? LOL!

[Gary Farber]

"just so the 'perjorative' sense is still unmistakable."

There's no "perjorative" sense; "perjorative" is not a word. It's "pejorative."

"The Army is pretty much shutting down all blogging by active duty."

I had the impression you were reading what I said in the Counter-insurgency, etc., thread. :-)

"But it's simply impossible to apply textualism to every part of the Constitution, and anyone claiming to possess the one and only legitimate interpretation of the Constitution is just wrong."

If it were otherwise, all Supreme Court decisions would be unanimous.

[Gary Farber]

"Unlike the left wing extreme, which absolutely can't admit having lost? LOL!"

To whom do you refer?

[spartikus]

To whom do you refer?

The Left-Wing Extreme is the one that comes with guacamole.

[OCSteve]

Gary: I had the impression you were reading what I said in the Counter-insurgency, etc., thread.

Missed that. I was too busy working on my comment to you :)

Dmbeaster: Unfortunately, there are way too many instances of opinions favorable to Bush positions from members of the military being actively aired by the administration.

Did you mean unfavorable? Maybe I’m not following you here.

BTW – I read elsewhere today that it was Dems complaining to the Army about all the grief they are taking from that corner… (Speculation, of course.)

[cleek]

Add to that the humilation of losing a war.

another war. Bush so doesn't want to be another Nixon.

[Brett Bellmore]

"To whom do you refer?"

The people who are convinced beyond a shadow of a doubt that both Gore and Kerry really won their respective Presidential elections.

With respect to the military bloggers, the army is, of course, concerned with possible leaks of militarily significant information to the enemy, who do, after all, have access to the internet. This isn't an irrational concern.

[Gary Farber]

"The people who are convinced beyond a shadow of a doubt that both Gore and Kerry really won their respective Presidential elections."

Thanks. If they are "the left wing extreme," what are Maoists and Trotskyites?

[Gary Farber]

"This isn't an irrational concern."

This is not the opinion of the milbloggers.

Specifically, here, here, and here. But if you like, you can check any other milblog you like, to see how much they think this is a wise, wise, decision, that should be supported.

But damn those crazy leftists like Hugh Hewitt and Glenn Reynolds for also denouncing the decision. These leftists just hate America, and their hatred is revealed by their contempt for our commander-in-chief's orders; don't they know that's treason? (And turning their back on the troops, besides, by undermining their confidence in the commander-in-chief!)

[Brett Bellmore]

Gary, did I say that they were right, or wise? I said that it wasn't irrational to think that military blogs could compromise operational security. I stand by that, they could. Doesn't mean that they aren't, on net, a good idea.

[G'Kar]

That link doesn't suggest that the milblogger in question considers the decision irrational, Gary. Unwise, yes, but many unwise decisions may still be rational.

[OCSteve]

Unwise, yes, but many unwise decisions may still be rational.

Eminently rational. I am still going with profoundly dumb.

[Barry]

"

OT: (Sorry, no recent open thread.) It’s not just Andrew. The Army is pretty much shutting down all blogging by active duty. Well, you can blog if you get every post approved by your superior officer. Even emails it appears. OPSEC is obviously important but this is just dumb."

Posted by: OCSteve

I think that it's just part of the brass recognizing that we are losing in Iraq. It's not just a matter of containing a few 'troublemakers', while helping more desired voices through. As this mess goes downhill at higher speeds over the next two years, more and more soldiers and officers are going to be increasingly disgusted with the President and the brass. They'll still be doing their duty, more or less, but the GOP is undoubtedly worried about the effects of truth on the American people. Which they've always been, of course, but the worry has got to be increasing.

[tzs]

Would somebody please explain to Mr. Mansfield that even under Roman law the aphorism "princeps legibus solutus est" only referred to a very tiny part of the law involving wills concerning the Imperial household? (Of course, it took a while until Jacques Cujas was able to prove this, meaning that the idea that "the prince is relased from the law(s)" had been making quite a lot of mischief.

And no one in his right mind in the 17th and 18th century would have ever used Machiavelli seriously as an authority. Everyone was always arguing against Machiavelli--even other Italians.

Why doesn't anyone ever realize that Il Principe was written in an attempt to wheedle his way back into the good graces of the Medici?