The left blogosphere is in an uproar about Harvey Mansfield’s suggestion in today’s WSJ Online that the President has, by Constitutional design, “executive power” unfettered by, and indeed opposed to, “the rule of law” as represented by Congress and the courts. (Full Mansfield text below the fold.)
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.
No doubt, some in the White House and the wingnutosphere will take comfort in such an argument, made by a scholar so eminent.
But both sides are missing the point. Those of us who have been his students know that Mansfield is far more a philosopher than he is a partisan. Moreover, he is a philosopher of a particular bent: a Straussian.
It is a core Straussian belief that in times of maximum political danger philosophers dare not, for their own sakes and for the sake of the community, tell the truth in plain language. Instead, they must conceal the truth under elaborate cover, and especially under cover of its opposite. By writing apparently in defense of a given position, in a way that leads those who hold that position to agree but makes obvious to those who do not hold it how vicious or trivial it truly is, philosophers can safely unmask obnoxious ideas and potential tyrants.
In The Prince, for example, Machiavelli warns Florentines about the emerging Medici tyranny by frankly stating the horrible tactics required to help a new tyrant consolidate power: “Whoever becomes master of a free city and does not destroy it, must expect to be destroyed by it.”
Similarly, Mansfield lays out the principles of Banana Republicanism for all to see. In the midst of a seeming panegyric on “energy in the executive,” Mansfield, in an apparently unguarded moment, lets the cat out of the bag:
We are talking about Machiavelli’s prince, the man whom in apparently unguarded moments he called a tyrant.
Mansfield fearlessly unmasks the claim that Presidential violations of law derive from, and are therefore limited by, the demands of temporary emergencies:
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.
Moreover, with a broad wink, Mansfield signals that arguments of the very type he purports to make are necessarily partisan and insincere. But he does so in a way that demands the “close reading” Straussians teach. Early in the essay, he writes:
In other circumstances I could see myself defending the rule of law.
Hmmm … just what might those “other circumstances” be? A hint is given in the middle (where Straussians argue that the truth is most cunningly hidden):
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. (Emphasis added.)
And, just in case the reader is especially dense, Mansfield frankly provides the answer to the riddle near the end of the essay:
Democrats today would be friendlier to executive power if they held the presidency, and Republicans would discover virtue in the rule of law if they held Congress.
So, Mansfield, in his adopted character of an apologist for Bushism, reveals the Bushite project of ruling in defiance of the law as fundamentally tyrannical, fundamentally unlimited, and defensible only from a position of partisan bad faith.
And of course, if challenged, Mansfield would deny all this, and dismiss the above interpretation as fanciful, which is the normal reaction of the uninitiated to Straussian interpretations of classical texts.
THE CASE FOR THE STRONG EXECUTIVE
By Harvey C. Mansfield
Wall Street Journal
May 2, 2007
Complaints against the “imperial presidency” are back in vogue. With a view to President Bush, the late Arthur M. Schlesinger Jr. expanded and reissued the book of the same name he wrote against Richard Nixon, and Bush critics have taken up the phrase in a chorus. In response John Yoo and Richard Posner (and others) have defended the war powers of the president.
This is not the first time that a strong executive has been attacked and defended, and it will not be the last. Our Constitution, as long as it continues, will suffer this debate — I would say, give rise to it, preside over, and encourage it. 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.
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. When the separation of powers was invented in 17th-century England, the purpose was to keep the executive subordinate; but the trouble was the weakness of a subordinate executive. He could not do his job, or he could do his job only by overthrowing or cowing the legislature, as Oliver Cromwell had done. John Locke took the task in hand, and made a strong executive in a manner that was adopted by the American Founders.
Locke was a careful writer, so careful that he did not care if he appeared to be a confused writer. In hisÂ Second Treatise of Government he announces the supremacy of the legislature, which was the slogan of the parliamentary side in the English Civil War, as the principle that should govern a well-made constitution. But as the argument proceeds, Locke gradually “fortifies” (to use James Madison’s term) the executive. Locke adds other related powers to the subordinate power of executing the laws: the federative power dealing with foreign affairs, which he presents as conceptually distinct from the power of executing laws but naturally allied; the veto, a legislative function; the power to convoke the legislature and to correct its representation should it become corrupt; and above all, the prerogative, defined as “the power of doing public good without a rule.” Without a rule! Even more: “sometimes too against the direct letter of the law.” This is the very opposite of law and the rule of law — and “prerogative” was the slogan of the king’s party in the same war.
Thus Locke combined the extraconstitutional with the constitutional in a contradiction; besides saying that the legislature is “the supreme power” of the commonwealth, he speaks of “the supreme executive power.” Locke, one could say, was acting as a good citizen, bringing peace to his country by giving both sides in the Civil War a place in the constitution. In doing so he ensured that the war would continue, but it would be peaceful because he also ensured that, there being reason and force on both sides, neither side could win conclusively.
The American Constitution adopted this fine idea and improved it. The American Founders helped to settle Locke’s deliberate confusion of supremacy by writing it into a document and ratifying it by the people rather than merely scattering it in the treatise of a philosopher. By being formalized the Constitution could become a law itself, but a law above ordinary law and thus a law above the rule of law in the ordinary sense of laws passed by the legislature. Thus some notion of prerogative — though the word “prerogative” was much too royal for American sensibilities — could be pronounced legal inasmuch as it was constitutional. This strong sense of executive power would be opposed, within the Constitution, to the rule of law in the usual, old-republican meaning, as represented by the two rule-of-law powers in the Constitution, the Congress which makes law and the judiciary which judges by the law.
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 theÂ 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 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 latterÂ 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 lesson for us should be that circumstances are much more important for free government than we often believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. “Civil liberties” belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war in order to return to peace.
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. In judging the circumstances of a free society, two parties come to be formed around these two outlooks. These outlooks may not coincide with party principles because they often depend on which branch a party holds and feels obliged to defend: Democrats today would be friendlier to executive power if they held the presidency — and Republicans would discover virtue in the rule of law if they held Congress.
The terms of the disagreement over a strong executive go back to the classic debate between Hamilton (as Pacificus) and Madison (as Helvidius) in 1793-94. Hamilton argued that the executive power, representing the whole country with the energy necessary to defend it, cannot be limited or exhausted. Madison replied that the executive power does not represent the whole country but is determined by its place in the structure of government, which is executing the laws. If carrying on war goes beyond executing the laws, that is all the more reason why the war power should be construed narrowly. Today Republicans and Democrats repeat these arguments when the former declare that we are at war with terrorists and the latter respond that the danger is essentially a matter of law enforcement.
As to the contention that a strong executive prompts a policy of imperialism, I would admit the possibility, and I promise to think carefully and prayerfully about returning Texas to Mexico. In its best moments, America wants to be a model for the world, but no more. In its less good moments, America becomes disgusted with the rest of the world for its failure to imitate our example and follow our advice. I believe that America is more likely to err with isolationism than with imperialism, and that if America is an empire, it is the first empire that always wants an exit strategy. I believe too that the difficulties of the war in Iraq arise from having wished to leave too much to the Iraqis, thus from a sense of inhibition rather than imperial ambition.
–Mr. Mansfield is William R. Kenan Professor of Government at Harvard.