Conservatives believe that ordered liberty requires limited government with a balance of powers under the rule of law. In Darwinian Conservatism, I argue that a Darwinian view of human nature supports this principle of balancing power. In every human society, there is a dominance hierarchy in which an ambitious few seek to dominate the many, while the many resist tyrannical dominance by the few. A representative government with a balance of powers allows those with political ambition to seek public office, while preventing them from becoming despotic. This satisfies the evolved desire of the ruling few to dominate while also satisfying the evolved desire of the subordinate many to be free from despotic dominance.
The United States Constitution shows this system of balance based on countervailing powers in which ambition counteracts ambition. But what happens when in times of war or emergency, it seems necessary for the president to act at his own discretion to do whatever is required to meet the urgent demands of the moment? In such circumstances, must the discretionary power of the president prevail over the rule of law?
The Constitution's answer is that in such cases, the president does have extraordinary power to exercise discretionary judgment outside the normal laws. But still, the Congress and the courts provide a check on the president to prevent him from abusing his emergency powers. The president has discretionary power, but it is confined and structured by the constitutional system of balanced powers.
Recently, it has been revealed that President Bush has secretly authorized spying on American citizens in violation of the 1978 Foreign Intelligence Surveillance Act, which dictates that such spying must be approved by a secret court of judges. In a recent issue of The Weekly Standard, Harvey Mansfield has defended the constitutionality of Bush's action as an exercise of the discretionary power of the President to act outside the rule of law in time of emergency.
I agree with Mansfield that the Constitution combines law and discretion. But I disagree with his implied suggestion that the emergency powers of the President cannot properly be checked by the Congress. To appeal, as Mansfield does, to the "wise discretion" of the President as free from congressional checks is to deny the principle of balanced government.
Mansfield writes:
"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."
I would ask, how or by whom is the president "held accountable and made responsible"? Doesn't the Constitution provide that the accountability and responsibility of the president is enforced by the Congress? Only by this congressional check on presidential power in emergencies can the principle of balanced government be secured.
Mansfield cites The Federalist as arguing for an energetic executive that introduces monarchic efficiency into republican government. But Mansfield does not cite the arguments of The Federalist as to how the powers of the president differ from those of the British King, because the president's powers are checked by the Congress. In all of those cases where the abuse of the executive authority is most to be feared, The Federalist explains, the president will be "subjected to the control of a branch of the legislative body." The most dramatic example of such a legislative check on the executive is the power of impeachment.
Unfortunately, in recent history, the Congress has often been reluctant to exercise their constitutional powers for checking presidential discretion. While looking to the federal courts to restrain the president, members of Congress have failed to employ vigorously their own powers for stopping the president when he acts illegally.
To assume that we can trust the "wise discretion" of the President, unchecked by the Congress, is to assume a utopian view of human nature that denies the insight of Darwinian conservatism that political rule tends to become tyrannical when it is not limited by a system of balancing powers.
8 comments:
Nice discussion. You the moralist Darwinist--I'm still having difficulty getting my mind around that one--and the Straussian Mansfield.
I tend to agree with you, as much as I approve of Bush's aggressive combat against Islamic extremism. Though he needs to stop Saudi Arabian visa applicants from coming over here.
I'm with Harvey on this one. The question is whether the Presidency is defined by emergency powers ("discretion") or the law.
If you define him by the law, then you have to accept Congress as the supreme branch of gov't. That seems to make sense - we're a republic, so a deliberative (ha!), representative (we're in moral/intellectual anarchy, Congress reflects that through sheer stupidity) branch should be foremost. And so Congress gets to make law.
I think there's a good reason why Madison fears legislative tyranny. It isn't that Congress is ambitious, it's that it's stupid, and has always been that way. The only Congressman I ever liked was Bob Packwood. He was a lech, and it was a good thing we sent him to Congress, so that way he didn't bother anyone in the real world and had to spend most of his time wondering about polls and whether April should be Blue Orchid month.
The question then becomes: If Congress makes law, then what does the President do? Well, he enforces law, he makes the law something manifest in our nation. If that's the case, then the executive is defined by power moreso than law, inasmuch as the executive isn't a bunch of random attributes put together to check other branches, but has as much as possible a fixed form. Granted, he's empowered by the law Congress passes in most instances.
What about the instance of people plotting to blow up the NYSE or the Capitol? Well, in that instance, he should act, and be held accountable after the fact. When is after the fact in the case of wiretapping while we war with terrorism? It is not merely a challenge to the use of wiretaps; it is when the purpose of the wiretaps is neglected by those who wanted it, and an injustice has been committed. Someone should have to actually be harmed for the complaint to come up. For example, if someone wiretapped, thought to be a terrorist, admits he lied on his income tax but is not a terrorist, and that man is arrested on tax evasion charges via the wiretap, the executive has overstepped his authority by a long shot. He needs to be able to defend what he has done through the invocation of an "emergency" that is credible. Most times, he can do it.
The few times he won't be able to it should be cases of obvious injustice, in which case popular rage should prompt Congress to act.
What's prompting Congress to act now is grandstanding and lack of respect for the separation of powers. They don't care if the President can actually conduct a war, they just want to grab power while the President's poll numbers are down.
That's a convoluted series of arguments, but I don't think there's a nice logic which says "the President is this" and "Congress is that," even though there is a fixed form for each, because what matters is that both branches act more than think, and have to be judged on their acting. And I think the fact I hate Congress should count for something.
If one were to rely only on the words of the Constitution itself, one might well conclude that Congress is the supreme branch.
The first and longest article of the Constitution is the legislative article. The range of those legislative powers allows the Congress to control the executive and the judiciary. The power of impeachment is one obvious example.
Moreover, many of the powers that had been exercised by the British monarch are specifically enumerated as legislative powers.
This reflects an accurate view of the human nature of power. Although "legislative tyranny" is certainly possible, the more likely danger is that the powers of the executive vested in one person will be abused by a Napoleonic, populist leader.
To elevate executive discretion over the rule of law tends to promote the tyranny of a populist leader. Carl Schimitt's defense of the Nazi "leadership principle" illustrates this. (Unfortunately, some of Leo Strauss's followers have been seduced by Schmitt's position.)
The Constitution has many specific emergency powers--such as the power to suspend the writ of habeas corpus "when in cases of rebellion or invasion, the public safety may require it." This is the great emergency power employed by Abraham Lincoln in the Civil War.
If Bush were serious about finding emergency powers in the Constitution, he would suspend the writ of habeas corpus. He will not do this, because he could not persuade the public that there is a "rebellion or invasion" in which the "public safety" requires this.
It isn't about which danger is more likely, I don't think, but more about which danger spells the end of the republic.
A republic can withstand despots. Rome certainly did, up until Caesar, when the despot was turned into a martyr, when the few forgot about the law that bound them.
It cannot withstand anarchy from within. It seems it cannot withstand, more specifically, an open conflict between the few and the many which the one comes to resolve on the side of the many. That's one prescription for tyranny, from the surface of the first book of the Discourses.
The more subtle prescription is given by Machiavelli, however, when one thinks about the few. In Machiavelli's thought, the few actually did have the situation in their hands, but they bungled the job. They used to accomodate the many in legislation, but decided they wanted to openly attack them. And with the advent of Christianity, the few underwent a metamorphosis: they became those who wanted to threaten the very possibility of political order by direct appeal to the passions, and make it impossible to have a "one."
The question is twofold: whether Bush is allied with the few or the many, and what the significance of the alliance is. This gets weird because he doesn't make populist appeals. He feels that in talking about safety and security he's doing his job as an executive. His appeal is to a "silent majority" that expects "energy and efficiency" from the gov't, and expects that the federal gov't will work as well as it can with what it is charged to do, which is preserving us.
It is Congress that is playing off of perceived populist rage to claim more power over us (do you really want Congress to wiretap us? You know you want Russ Feingold listening to your conversations, I certainly do...), and if they didn't do this, and had the authority the "one" did, like when Rome was a republic with the occasional despot, they would declare open war on the rest of us.
I thank God every day I have a strong executive who fights for oil that we need and bombs Al-Jazeera illegally. I'm only half-kidding. The way I see it, it's either Congress' stupid anarchy, or an executive that acts. I'm happy some people complain about him, of course - but most of these complaints are b.s., esp. this one.
If you really want to get on Bush's case, get on the fact that he isn't serious about Chinese military escalation in the Far East.
Thanks for the response. Your blog has the potential to be a lot of fun. If you pick passages from Shakespeare or Nietzsche - I don't mean from the plays or larger works, but couplets or aphorisms - to comment on, that'll really keep me interested.
I assume, of course, that what defines being a Straussian is knowing everything.
Btw, one more question:
Does your blog allow trackbacks? I'd like to post future responses of this length in my blog, and have them link back here.
"The Constitution has many specific emergency powers--such as the power to suspend the writ of habeas corpus 'when in cases of rebellion or invasion, the public safety may require it.' This is the great emergency power employed by Abraham Lincoln in the Civil War."
But did he do so lawfully? (That, of course, is a different question from whether he did so in good faith, and I don't mean to deprecate Lincoln.)
Lincoln ignored Merryman (!861), and habeas corpus was not restored for another five years, the Civil War having ended. But if a "global war on terror" or on "Islamofascism" or what have you is proposed to last for decades, even generations, and a highly energized "energetic executive" is necessary to prosecute it, we will no longer be living in a polity, in which, as Aristotle put it, the laws rule. Better we citizens take our chances with the rule of law than survive as the subjects of a despotism.
I would argue that Lincoln was right to reject the decision in Ex parte Merryman as incorrect. The Constitution clearly allows for the suspension of the writ of habeas corpus. Although this power of suspension is mentioned in Article I of the Constitution, which is the legislative article, the power is not specifically stated to be a legislative power. And, in fact, the phrase "by the legislature" was dropped from the language of this clause in the constitutional convention.
So Lincoln had a good argument for his claim that he was following the strict letter of the Constitution.
The general point here is that if a Constitution is to work, it must be written so as to provide for all of the emergency powers that are necessary. But when such powers are specified, there is no justification for going outside the Constitution during an emergency.
When the President exercises his constitutional emergency power for suspending the writ of habeas corpus, he works within the Constitution, which means that all of the regular constitutional structure remains in place to check his power. Thus, during the Civil War, the Congress continued to check Lincoln's power.
If the President acts outside the Constitution in an emergency, the danger is that this could abolish the normal structural checks. In principle, a president could suspend the Congress, or he could refuse to submit to the outcome of a presidential election, with the excuse that during the emergency he must act as a temporary dictator.
That's what I fear is implied in Mansfield's article.
This is the tough call. I think Larry's reading of the text of the Constitution is right (echoing both Anastaplo and Willmoore Kendall)... yet I think Mansfield is right about the question of executive vs legislative power.
But the question is moot, in that if Congress really thinks what he did was wrong, it does have the power and needs not the court, that power is called impeachment, which is a political not legal instrument. But on the otherhand, I think the nature of the executive has been already so ham-strunged by Congress and the relationships between agency interests-congress and constintuency concerns-corporate and NGO/Think Thanks industry that services these areas. Just look at how Homeland Security was forced upon Bush and the mess of it and how the dept is more about congressional pork than national security. The nature of our national security committments needs perhaps to make us rethink some of our institutional arrangements, to give the executive more energy and autonomy than it currently has.
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