Seeker Blog

. . .We need both the rule of law and the power to escape it–and that twofold need is just what the Constitution provides for. . .

. . .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. . .

Question: from what source comes the idea that only Congress should determine what is OK? I’ve concluded that the New York Times et al must hold that view - the view that the U.S. Constitution is wrong and needs to be amended to make the Executive subordinate to the Congress. It is a “comforting” idea - just like a democracy should be, right? None of that king-like stuff.

Harvard prof. Harvey Mansfield (Political philosophy; American constitutionalism) wrote this illuminating piece for The Weekly Standard. The essay is an easy to follow constitutional brief on the logic of a strong, independent executive.

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.

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.

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