[Marxism] Harvey Hamilton, er, Mansfield on Executive Power
hooverm at scc-fl.edu
Sat Jan 28 08:39:59 MST 2006
[[weekly standard is billy kristol's (irving's son) rag, harvey mansfield has
essentially been at harvard ever since he stepped foot on campus over
50 years ago, he considers himself to be one of the beleaguered
conservatives in academia and fancies identifying himself as the only
conservative poli sci guy at liberal harvard (the institution from where
which both his undergrad and grad degrees are from and where he has
been poli sci faculty member since early '60s, check out his reference to/
use of hamilton's federalist #70]]... mh
The Law and the President
In a national emergency, who you gonna call?
by Harvey Mansfield
Weekly Standard 01/16/2006
EMERGENCY POWER FOR SUCH UNDERHANDED activities as spying makes
Americans uncomfortable and upset. Even those who do not suffer from
squeamish distaste for self-defense, and do not mind getting tough when
necessary, feel uneasy. A republic like ours is always more at ease in
dealing with criminals than with enemies. Criminals violate the law, and
the law can be vindicated with police, prosecutors, juries, and judges who
stay within the law: At least for the most part, the law vindicates itself.
Enemies, however, not merely violate but oppose the law. They oppose
our law and want to replace it with theirs. 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.
This home truth gets little recognition from critics of the Bush administration's
surveillance activities in the war on terror. Some of its defenders, too, seem
unaware of the full extent to which the Constitution addresses the problems
we face today and how useful and relevant its principles prove to be.
One can begin from the fact that the American Constitution made the first
republic with a strong executive. A strong executive is one that is not
confined to executing the laws but has extra-legal powers such as commanding
the military, making treaties (and carrying on foreign policy), and pardoning
the convicted, not to mention a veto of legislation. 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.
Thus it is wrong to accuse President Bush of acting illegally in the surveillance of
possible enemies, as if that were a crime and legality is all that matters. This is
simplistic, small-r republican thinking of the kind that our Constitution surpassed
when it constructed a strong executive. The Constitution took seriously a
difficulty in the rule of law that the republican tradition before 1787 had slighted.
The difficulty is obvious enough, but republicans tend to overlook it or minimize it
because they believe, as republicans, that power is safer in the hands of many than
in those of one or a few. Power is more surely in the hands of many when exercised
in the form of law--"standing rules," as opposed to arbitrary decree. Republics tend to
believe in the rule of law and hence to favor legislative power over executive.
Yet the rule of law is not enough to run a government. Any set of standing rules is
liable to encounter an emergency requiring an exception from the rule or an
improvised response when no rule exists. In Machiavelli's terms, ordinary power
needs to be supplemented or corrected by the extraordinary power of a prince,
using wise discretion. "Necessity knows no law" is a maxim everyone admits, and
takes advantage of, when in need. Small-r republicans especially are reluctant to
accept it because they see that wise discretion opens the door to unwise discretion.
But there is no way to draw a line between the wise and the unwise without making
a law (or something like it) and thus returning to the inflexibility of the rule of law.
We need both the rule of law and the power to escape it--and that twofold need is
just what the Constitution provides for.
In the Constitution executive power represents necessity in the form of response to
emergencies. It anticipates that events will occur or situations will arise that we
cannot anticipate through our laws; it anticipates what we cannot anticipate. The
legislative and the judicial powers (and the executive insofar as it merely executes
laws) represent our choices as they have been fixed in law, our foresight as far as it
goes. The Constitution mixes choice and necessity, reflecting our desire for self-
government (which takes effect in our legislation) and our recognition of the
limitations of human foresight and the imperfection of human laws. These are
opposite principles made into opposing elements of our government, yet they are
also complementary. Each needs the other, and the constitutional system makes each
in some degree aware of the other.
Yet the legislature and the judiciary will of course be partial to the rule of law, and
the executive partial to the need for discretion. The Constitution maintains both
opposite principles by arranging for an interested party or parties to support that
principle in exercising its power. It does not try to teach the overall truth to all
parties, as if it were possible to have the legislature and judiciary demurely defer to
the executive when discretion is needed, and the reverse when the rule of law
rightly asserts itself. No, there will be conflict between discretion and the rule of law,
each party aware of the other principle but more convinced by its own.
That is why the two principles do not coincide with the differences between liberals
and conservatives, or Democrats and Republicans. Democrats uphold the rule of law
now, because as things stand that is all they can hope for. When they held the
presidency with Bill Clinton, it was they, during the impeachment trial, who called
for pardon and the Republicans holding Congress who tried manfully to vindicate the
rule of law by punishing a president who admitted he had violated the law.
In combining law and discretion, the Framers of the Constitution made a deliberate
departure from the sorry history of previous republics that alternated between
anarchy and tyranny. The Federalist Papers, the most authoritative source for
understanding the thinking of the Framers, make it clear that republicans had gone
astray because they had overconfidently ignored the necessities that all governments
face and had tried to wish away the advantages of size, power, flexibility, foresight,
and prudence that monarchies may offer. In rejecting monarchy because it was unsafe,
republicans had forgotten that it might also be effective. The Framers made a strong
executive in order to have both power and security, and they took note of emergency
occasions when more power gives more security.
Separation of powers was a republican invention of the 17th century, but the Framers
improved it when they strengthened the executive. They enabled the executive to
act independently of the legislature and not merely serve as its agent in executing the
laws. In the current dispute over executive surveillance of possible terrorists, those
arguing that the executive should be subject to checks and balances are wrong to say
or imply that the president may be checked in the sense of stopped. The president
can be held accountable and made responsible, but if he could be stopped, the
Constitution would lack any sure means of emergency action. Emergency action of
this kind may be illegal but it is not unconstitutional; or, since the Constitution is a
law, it is not illegal under the Constitution.
To be held responsible, the executive must be able to act independently. To the
extent that he depends on others to act, as in getting a law passed, responsibility
is distributed to others and it is no longer clear who precisely is responsible. A
president can evade responsibility by consulting with others and then, if something
goes wrong, put the blame on them. This is one of the oldest tricks in the book,
and canny politicians will often refuse to be consulted lest they get the blame for
someone else's mistake and lose the ability to lay blame themselves. To be sure of
responsibility you must fix it on one person; true responsibility is sole responsibility.
That is why, under our republican Constitution, the people, when they want to hold
the whole government responsible, end up holding the president responsible.
The Federalist tells us that a republican constitution needs energy and stability, terms
taken from physics to designate discretion and law. Energy has its place in the
executive, and the foremost guarantee of energy is "unity" (Federalist 70), meaning
unity in one person as opposed to a committee or a council. Unity facilitates "decision,
activity, secrecy, and dispatch." Note secrecy in this list. Secrecy is necessary to
government yet almost incompatible with the rule of law (the exception being when
congressional committees meet in "executive," i.e. secret, session). Yet secrecy is
compatible with responsibility because, when one person is responsible, it does not
matter how he arrives at his decision. To blame or reward him, one does not have to
enter into "the secret springs of the transaction," as would be necessary if responsibility
In the present administration, we do not really need to know the sort of secrets we learn
from reporters like Bob Woodward. We do not need to know, for example, how
important Vice President Cheney is; we can praise or blame President Bush for choosing to
be advised by him. With one person in charge we can have both secrecy and responsibility.
Here we have the reason that American society, in imitation of American government,
makes so much use of one-man rule. In all of its institutions--corporations, unions, sports
teams, gangs, and universities--our republic likes to place power in the hands of one person,
and then hold him responsible. That is our republican maxim, quite different from the
traditional one that sees safety in numbers.
>From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law
makes surveillance subject to approval by a secret court of judges, who are thereby placed
in a false position. If they give approval readily, they go against their profession as judges
and fail to give judicious consideration to each case. Yet if they think as judges in terms of
criminals rather than enemies, that may do harm to the country. We note that President
Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if
legality could guarantee success and morality could make our enemies give up.
Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to
consider emergencies when liberties are dangerous and law does not apply. But it is
precisely difficult situations that we should think about and counsels of perfection that we
should avoid. Otherwise we end up admitting truth with a bad conscience, as did John
McCain recently, when after denouncing the use of torture, he suddenly said on the
contrary: "You do what you have to do." In this way you have morality and the rule of law
on one side and necessity on the other. But isn't there a legal and a moral way to deal with
necessity? Our Constitution, properly understood, shows that there is. We need to take
better stock of our own achievements.
Harvey Mansfield is the William R. Kenan Jr. professor of government at Harvard.
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