Saturday, January 07, 2006

Understanding the Wisdom of the Constitution or How to Avoid a Bad Conscience

In his latest Weekly Standard piece, Harvey Mansfield invites us to have a greater appreciation for the Constitution, which allows us to deal with necessity in a legal and moral way.

Mansfield reminds us that the "American Constitution made the first republic with a strong executive," and a strong executive is not an errand boy, executing laws made by Congress, despite the republican wish to make him so. A strong executive commands the military, makes treaties, pardons the convicted, and vetoes legislation. Moreover, Mansfield notes, the Constitution requires the executive to take an oath of office "not to execute the laws but to execute the office of president which is larger." It would seem that the laws, which are not self-executing, especially when dealing with enemies isntead of criminals, depend on executive power.

Therefore, our Constitution overcame the criticisms of President Bush for spying on enemies, when it constructed a strong executive that recognized that "the rule of law is not enough to run a government." The rule of law or ordinary power requires the supplement of discretion when confronted by necessity, and the Constitution gives that supplement to the president. As Mansfield says, "We need both the rule of law and the power to escape it--and that twofold need is just what the Constitution provides for."

So executive power is the means by which we deal with necessities and emergencies that the laws cannot anticipate. It represents the limitations of foresight and the imperfections of laws. The Constitution does not try to teach everything to everyone. The legislature will still be partial to the rule of law, for example. The Constitution attaches each principle, choice and necessity, to different branches that will remain in perennial tension, guaranteeing the survival of each principle and serving as our acknowledgement of both the need for laws and the need for a supplement overcoming their imperfection or deficiency in the face of necessity.

The Framers improved separation of powers with a powerful executive, seeking to overcome the weaknesses of previous republics that perilously ignored necessity and the advantages that monarchies offered in contending with it. Therefore, the president can be made to assume responsibility, but he cannot be "checked in the sense of stopped," because then "the Constitution would lack any sure means of emergency action."

In fact, Mansfield reminds us that responsibility requires independence. Consequently, holding our republican government responsible ultimately means holding the president responsible. And responsibility is compatible with secrecy, one of the characteristics facilitated by "unity," because secrecy cannot obfuscate "the secret springs of the transaction" accomplished by one.

Mansfield concludes by asking that we consider emergencies more and perfection less, for emphasizing perfection leads to "admitting the truth with a bad conscience" and forgetting about how our Constitution allows us to deal with emergencies by legalizing a supplement to the law, executive power.

Mansfield provides a fuller discussion of executive power in Taming the Prince. There, he begins by wondering why we call our president an "executive" and surmises that the word acknowledges that we need rule but, as liberals, view all direct rule (someone ruling in his own name) as unjust. Executive power allows for someone to rule without completely claiming to rule; it is simultaneously a claim and a disclaimer to rule. In other words, executive power reflects a certain "ambivalence" about rule in liberalism -- we need it, but can't tolerate anyone exercising it in his own name or making a claim as to why he deserves to do it. After a discussion of the defects of popular scholarly books on the American Presidency, the book moves through the "pre-history" of the executive (denoted by his almost complete absence in Aristotle's Politics, where the purpose is to evaluate different claims to rule) to the emergence of the full-blown executive in Machiavelli and his subsequent domestication in the students of Machiavelli -- Hobbes, Locke, Montesquieu, and the Federalist. Moreover, the domestication or taming does not represent a return to Aristotle, but variations on Machiavelli's break with Aristotle and the modern idea of "indirect government" (where nobody rules in his own name). This may sound boring, but it's really one of the most thrilling inquiries you'll ever come across in political science.


Blogger Ed said...


This is a good-hearted and honest attempt to defend something which is increasingly undebatable, especially given Mansfield's stated desire to distance himself from the “rule of law.” If that is the case, then there might not be much need to engage him on what are probably, in his sights, frivolities and simplicities. At some point, this passes beyond the realm of political discourse and into something else.

Nevertheless, while we still have time, I address below his comments -- not yours -- but would be willing, time permitting, to take up further your own view on the matter.

Historically, he knows better:

“That is why, under our republican Constitution, the people, when they want to hold the whole government responsible, end up holding the president responsible.”

This hardly needs rehearsing again, not after the last two elections. The president is elected by the states, not the people. The president is not the embodiment of a national will, nor is he the representative of the Volk. There is no national referendum, vote of confidence, or plebiscite on the executive branch. Perhaps Mansfield is referring to polls or newspaper editorials –- otherwise, it is very difficult to find any real-world, punitive enactment of “responsibility” (unless one is talking about jail time following a conviction, which Nixon probably faced) being applied to the president by other branches of government or by the people.

Additionally, I find it hard to see how (say, theoretically) a minority vote in a presidential election might constitute actual responsibility -- certainly not if the man were to hold on to the office following a vote in which he was ostensibly held “responsible.” I think this tells us something important about our system which his statement completely misses: responsibility is not inflicted through the ballot box, but by the laws.

Thirdly: the specter of necessity -- always haunting these debates -- and unforeseen circumstances is a red herring. With the wiretaps, “necessity” had already been provided for explicitly in FISA and the 72-hour window in which the president is free to conduct searches without warrant.

Furthermore -- as is usually the case in these matters -- there is no failure or absence of legislative foresight which compels the prince to prove himself more than a mere water-carrier in defense of the state.

Rather, it is the executive explicitly defying legislative and/or judicial instruction which has proven to be the heart of this struggle. (One thinks of the Boland Amendments, for instance.) It is not –- as Mansfield would have us believe –- inaction or silence from the other branches of government which provokes the suspension of the rule of law (as if the law, by inaction, had failed us –- though that is the story being told). Continued misrepresentation of the nature of the struggle between the branches of government as one of necessity in the absence of authorization, as Mansfield describes it, does no justice to the stakes, which I refer to in my final paragraph.

The oath of office argument is particularly specious. Below is the oath of office which all federal employees take. You will see that it, too, swears the employee to discharge the duties of the office which they are about to assume. Does this oath bestow “extra-legal” powers upon letter-carriers or IRS clerks? How does one derive “extra-legal” powers from a simple oath of office which swears one to carry out the laws, not suspend them?

“I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” (5 U.S.C. §3331)

As for “supplements” and “emergencies”: I think it would be far more honest and worthy of respect if the folks behind this simply proclaimed the permanent state of exception and got on with it.

In that state, there would be, then, no need to return to the “inflexibility of the rule of law” (Mansfield) once one’s enemies were dispensed with. In that time, in that place, liberties would no longer be so dangerous, and the president could, finally, be held responsible by someone or something.

I leave it up to Mansfield to concoct that fabulous, fictitious creature of responsibility, given that the ones extant seem so wanting of respect.

9:27 PM  
Blogger John Coumarianos said...


Does Mansfield wish to distance himself and the executive from the rule of law, or does Article II already provide for that? I think there is strong evidence for his case that the founders wished to provide for instances where the law was inadequate in ways that no republic had done previously. Mansfield's reading, similar to Hamilton's when he argued against Madison about Washington's ability to ignore our treaty with France, seems pretty clean to me.

Your desire to deny that the president is a representative of the Volk is perfectly in accord with the founders, but I don't see how Mansfield urges that. Your use of "Volk" is a trope designed to frighten us and distract us from the matter at hand. The idea of the president as a representative of all the people comes from progressivism more than the founders, it's true; but it can't be used to deny that the founders wanted a powerful executive, able to accomplish "arduous and extensive enterprises."

Also, the states don't elect a president, as you say, the electoral college does. And although the system has never functioned completely the way the founders wanted, it's clear that they intended to get a "national figure" out of the process. There are too many points to make about this here, but the important thing is that the founders devised a very different mechanism for electing a president than they did for electing senators. Why didn't they provide for the states to elect the president, as you suggest? After all, that's the mechanism they used for senators. Why did they devise the mechanism of the electoral college? Your error here is telling and reflects that you misunderstand the founders and their intentions regarding the executive.

Also "holding the government responsible" is important to the founders and betrays how badly the progressives misunderstood and mangled the concept of separation of powers. Separation of powers wasn't to construct weak branches hindering each other and hiding the locus of power and decisions (both the anti-federalists and the progrssives argued that). Instead the mechanism was supposed to create strong and effective branches, with each one predominating in certain areas of government. Federalist 51, for example, is all about responsibility, tying ambition to offices and using it as a kind of lever for virtue; but that doesn't make Publius Herbert Croly.

Federalist 51, with its discussion of ambition, asserts in its own way that responsibility is inflicted through the ballot box, contrary to what you argue. How else to tie ambitious men to the public good? (That's why Publius doesn't argue for a term limit also.) So I think you've missed Publius' point about human ambition and its relation to politics in a big way. Nothing is as important to an ambitious man as the ability to regain office -- that's what Federalist 51 asserts. The reliance in that paper is on ambition, not law. Perhaps you disagree with it, but then, I suppose, you disagree with the founders as much as you do with Mansfield.

You misunderstand how the founders wanted to elect a president and also how the founders wanted to manipulate the ambition of office-holders. These two misunderstandings lead to another one about the character of executive power.

Regarding the "extraordinary" circumstance becoming "ordinary," sure that danger always exists. However, it doesn't seem that the founders were willing to let that danger discourage them from scrapping the Articles of Confederation and creating a new government with a powerful executive.

Finally, is your desire to "tame the prince," apparently more than Publius does, reflective of a certain kind of Machivellianism too, seeking to further Machiavelli's project of indirect government? I wonder....

10:48 PM  

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