Liberty, Tyranny, And The Law: A Response To Harvey Mansfield

Recently, Harvey Mansfield, the William R. Kenan Professor of Government at Harvard, published The Case For The Strong Executive. The piece appeared as an editorial in the Wall Street Journal. As such it should be taken seriously as an expression of the conservative vision of the “imperial presidency.” With so many Republican operatives dating to the Nixon adminstration populating this adminstration — including, most conspicuously, Dick Cheney — one can fairly assume that Professor Mansfield is expressing views that are shared by members of this cabal. His views are alarming.

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 audacity of this interpretation of Article II is breathtaking. In one stroke, Mansfield sets up the standard issue false dichotomy between “energy” on the one hand, and the “rule of law” on the other, and then uses that false dichotomy to justify a vision of “energy” that is equivalent to tyranny. He turns the President into something even Alexander Hamilton never imagined the President to be. Indeed, Professor Mansfield seems to have adopted the caracature of the President-as-tyrant held by opponents to the constitution when in fact, Hamilton when to great lengths to clarify that the President was NOT such a tyrant.

Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.

Perhaps Professor Mansfield would have us all believe that in fact, the participants in the constitutional convention intended to create such a Macchiavellian tyrant. Maybe he perceives Hamilton’s defense of this creature as a Straussian “noble lie” to hide the awful truth from a people too deluded to understand what’s good for them. Interestingly, having purportedly created such a “strongman,” 41 men have managed to hold the office over the ensuing 212 years, more or less constrained by the rule of law — all the while managing to do their jobs — until the current trustee to the office divined it’s true “energetic” nature. As for just how “energetic” the Presidency is supposed to be, no one should misunderstand that such a tyrant is exactly what Mansfield is talking about.

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.

Contained within this is the heart of the matter. It seems that we are presently in “stormy times” — what with being “at war” and all. Indeed, neoconservatives like Dick Cheney tell us we face an “existential threat” in the form of “Islamofascists.” Unfortunately, the American people — fools that they apparently are — have failed to grasp the danger posed by religious fanatics on the other side of the world. As a nation we have faced invasion by the British, a civil war that killed 600,000 Americans, a depression that left a quarter of the workforce unemployed, simultaneous war with two distinct military giants armed with some of most advanced weapons available, followed by a forty year cold war with an adversary armed with thermonuclear tipped ICBM’s. None of these threats ever appear to have necessitated an American President to assume the powers of a tyrant. The closest any President ever came was President Lincoln, who suspended the writ of habeas corpus during a time of massive rebellion against the central government. Even that arguably tyrannical action was within the parameters of the law — since the constitution specifically provides for such suspension during just such a crisis. Now, we are told by Professor Mansfield, we need a tyrant President because, we are in a limited war that has not required a draft or even an increase in tax revenue to pay for it, and where the “enemy” is found among insurgents fighting American soldiers on the other side of the world. I hope Professor Mansfield will forgive me if I question whether now, among all the crises in American history, this one requires a tyrant who is above the law, when every other crisis we have faced has not.

As for Mansfield’s putative dichotomy, the whole notion that “energy” is incompatible with the “rule of law” is entirely bogus. Again, the United States government — and indeed the governments of each of the several states — have managed to enforce the law for 220 years. At no time in that 220 year history has anyone ever asserted that the law is “self-enforcing” and does not require any human agency. Perhaps Professor Mansfield’s difficulty is his apparent lack of any training or experience in the law. If Professor Mansfield had ever practiced law, instead of sitting in his ivory tower at Harvard, he would understand what the “rule of law” means in the real world.
His first misperception is the very nature of law, which he perceives to be rules laid down to regulate the conduct of ordinary citizens. That is indeed a part of the law, but what he fails to grasp is why we write them down. Tyrants are ever ready to punish misbehavior. They don’t need written rules to do so. Written rules, that bind that government, are for the benefit of citizens. Written rules are an inherent restraint on the government, where the government must declare what is prohibited in advance before it may punish someone for objectionable conduct. The purpose of written rules is not to eliminate the government’s coercive power, but to rationalize it. It is not every use of power that the law restrains, but arbitrary power. What is central to the rule of law, is not the rules themselves, but the process that produces them, and the procedures by which they are enforced. It is that legal process that gives assurance to the citizen that he need not fear arbitrary abuse at the hands of overzealous or corrupt government agents.

Far from being “self-enforcing,” the law presumes the existence of power, and is set up to regulate and restrain that power. As for the occasional need for a “tyrant” — which many before Professor Mansfield have posited — there should never be a circumstance where a magistrate of the government needs wholly unregulated arbitrary power to “do his job.” Lincoln’s conduct during the Civil War provides a prime example. In fact, the circumstance of a rebellion against the authority of the Federal government was anticipated by the framers. That is why they provided for suspension of the writ of habeas corpus in cases of “invasion or rebellion.” Invasion or rebellion would obviously be one of those “stormy times” that requires “energy” — and indeed, Lincoln exercised such energy. While certainly draconian, his suspension of the great writ can be readily defended against a charge of being arbitrary, irrational, or unprincipled. In any event it was temporary, and targeted to very specific individuals who posed very specific and identifiable threats to the position of the Federal government. It was not advanced as part of a generations long war-without-end, which translates into tyranny-without-end. Finally, and most importantly, Lincoln’s suspension was challenged in the Federal Courts of his time, and the Supreme Court eventually passed on whether his actions were lawful.

With respect to the alleged deficiencies of legislatures and the law, our own legislature has shown an interesting characteristic during times of genuine national crisis. In such times, Congress has inevitably expanded the power of the President to act. Indeed, the 108th Congress responded to the 9/11 emergency by passing the Patriot Act. The following year, in response to a hyped up purported threat, they authorized military action in Iraq. The 109th Congress re-authorized the Patriot Act, including a provision for military commissions which strip Federal courts of their power to hear habeas corpus petitions filed by alleged “terrorists.” In fact, the previous Congresses have been quite generous in granting President Bush the power to “keep America safe.”

In the meantime, the American people have emerged from their temporary delusions. They have realized that the war in Iraq is in fact a war of choice, that Saddam Hussein posed no “existential threat” to the United States, and that he had no connection to the attack on the US in 2001. As for the terrorist threat, the public has grown cynical with the use of “orange alerts,” and the use of torture and wiretapping that, so far, have failed to uncover a single terrorist conspiracy. Having cleared its collective head, America has elected a Democratic majority with a growing mandate to end the war in Iraq, and to investigate the abuses and corruption of the administration. Small wonder that now, when its chickens are coming home to roost, the administration has discovered — hidden for the past 220 years — the “true” intention of the framers of the US constitution to create a Macchiavellian tyrant who must be “above the law.”

On the subject of the “temporary delusions of the people,” Mansfield is perhaps his most disingenuous.

A strong executive is requisite to oppose majority faction produced by temporary delusions in the people. For the Federalist, a strong executive must exercise his strength especially against the people, not showing them “servile pliancy.”

In light of dire warnings about “mushroom clouds” and the specter of a new caliphate, threatening to destroy us all, one has to wonder who exactly is laboring under “delusions.” Rather, as I have already discussed, it would seem that the people are awakening from their previous delusions — the one’s shamelessly promoted by the present administration. Thus do present conditions suggest that far from serving as a check against “temporary delusions” a strong executive can actually promote them. Indeed, the function of the executive in motivating the nation, spurring them to action, including specifically, motivating a frequently lethargic legislature, is encompassed in Theodore Roosevelt’s conception of the “bully pulpit.” If Presidents don’t cool the passions of the people, but frequently inflame them, we are left to ask who the framers intended to “oppose majority faction produced by the temporary delusions of the people.” According to Federalist No. 70, the legislature – not the executive — serves this function.

In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.

To further amplify this function of the legislature, Hamilton [or is it Madison] says the following, specifically in reference to the function of the Senate.

[S]uch an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?

Did he refer to the people being “misled by the artful representations of interested men?” What is that if not a description of exactly the situation that led to our current “war of choice,” wherein the administration cooked the evidence to justify its predetermined course of action. Even now, as a majority of public has come to reject the war in Iraq, and is clamoring for its end, the legislature is serving the role it failed to serve to start with. It is carefully and deliberately weighing the best way to restrain a delusional commander in chief — much to the frustration of the people who are fed up with the manipulation and deceits of the current administration. Indeed, the constant criticism of the previous Republican Congresses is precisely that they failed to perform their deliberative function. One can scarcely look to the President as a check on that failure, since it was his mendacity they needed to more carefully scrutinize.

Now that the opposition party has control of Congress, and is asserting its right to oversee the actions of the executive, the adminstration and Professor Mansfield have taken a curious position. Whereas the previous rubber stamp legislatures were “clear headed” as they swallowed the untrue representations of the President, now apparently they are as “deluded” as the people. That’s right folks, back when majorities of Americans wrongly believed that Saddam Hussein had weapons of mass destruction, and was complicit in the 9/11 attacks, they were “clear headed.” Now that they know better, they are “deluded.” Go figure.

As interesting as the commentary may be on, what was then, the new constitution, we have 220 years of experience. That experience has shown than many of the predictions made about how the constitution would function were quite accurate. The Congress has indeed served its purpose as a deliberative institution to check not only the “passions” of the people, but the excesses of the executive. As for the executive, it’s character has emerged as what Theodore Roosevelt called a “bully pulpit” to arouse the people to action, not to serve as a brake on their “passions.” Indeed, it was Bush’s dishonest and overreaching use of that “bully pulpit” that has led to the present conflict between him and the legislature. To now assert, as Harvey Mansfield does, that the President now has some sort of extra-legal prerogative to simply ignore the legislature is to butcher not only the founder’s understanding of the respective roles of the executive and the legislature, but the experience of 220 years wherein we have managed to avoid the need for a Macchiavellian tyrant.

In short, Harvey Mansfield’s analysis is so much hogwash. It is the rationalization of yet another armchair Alexander with visions of empire. Professor Mansfield is figuring out what legions of other neoconservative hacks are also discovering. Democracies don’t make a good foundation for empires. Empires need emperors. Unfortunately, our founders were not the least bit interested in creating such an office. They created a single magistrate to facilitate enforcement of the laws duly enacted by Congress, and to facilitate the defense of the legitimate interests of the United States. As for the ambitions of our armchair Alexanders, they need to find a country more amenable to a Macchiavellian tyrant. Our President is no sovereign prince. He is a constitutional magistrate, operating within the bounds of the law and constitution. Now more than ever, the vigilance of the people is needed to keep it that way.

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