Monday, March 21, 2011

Another Unconstitutional War? America's Elective Monarchy

Republican House Speaker John Boehner has been quoted as expressing some concerns about President Barack Obama's war against Libya. "Before any further military commitments are made, the administration must do a better job of communicating to the American people and to Congress about our mission in Libya and how it will be achieved."

What's remarkable about such a comment is how Boehner takes it for granted that the President of the United States can go to war by his own decision, while the Congress waits passively for the President's explanation for his decision. Notice that no one inside or outside the Congress is saying anything about the fact that the Constitution of the United States clearly grants to the Congress the power to declare war. What this means, of course, is that that part of the Constitution has been set aside. In effect, the power to declare war has become a prerogative of the President.

We should remember what Senator Barack Obama said in criticizing the Bush administration: "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

But now, President Obama--the winner of the Nobel Peace Prize!--adds Libya to a long list of Muslim countries against which he has ordered bombing attacks. The list includes Afghanistan, Iraq, Pakistan, Somalia, and Yemen.

This presidential usurpation of the congressional power to declare war shows that the President has become an elected monarch, and thus confirms Machiavelli's claim that even in supposedly republican forms of government, there is a natural tendency for the people to want rule by a prince.

During the debates over the ratification of the Constitution, one of the major complaints from opponents of the Constitution was that the President would become a king. In The Federalist, Number 67, Alexander Hamilton complained that this was a false charge. "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 enbryo, but as the full-grown progeny, of that detested parent."

In Number 69 of The Federalist, Hamilton compared the powers of the President and the King of Great Britain, and he argued that on some crucial points, the American President would not have monarchic powers. One crucial point concerned the war powers of the President:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with tht of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,--all which, by the Constitution under consideration, would appertain to the legislature.

Clearly, then, that only Congress can declare war was for Hamilton a primary distinction between the powers of the President and the powers of the British king. But now that the power to declare war has become a presidental power, the presidency has become more monarchic.

Of course, many of Hamilton's critics accused him of favoring monarchy and of pushing the American presidency towards monarchy. These criics understood that there is a natural disposition towards princely rule because of the tendency to concentrate power in the hands of a single person, particualrly in time of war.

This is evident in Locke's Second Treatise, in Locke's indication that even in popular forms of government, the people are inclined to yield to princely prerogative powers in war. Hamilton and other defenders of the Constitution tried to argue that the American president would not have the prerogative powers of a king. But the history of American government shows the tendency of the American presidency to become an elected monarchy.

Does this indicate that like other primates, human beings are naturally inclined to rule by alpha males, especially in times of war and emergency?

This points back to some of my recent posts on the Machiavellian character of primate politics.

In their recent book--The Executive Unbound: After the Madisonian Republic--Eric Posner and Adrian Vermeule argue that the expansion of presidential power means that the United States is no longer a Madisonian republic of "liberal legalism," because now the concentrated powers of the president are checked not by law but by politics and public opinion. They see this as a vindication, in some respects, of Carl Schmitt's criticism of liberal legalism and advocacy of executive prerogative. Similar arguments have been made by Harvey Mansfield and other followers of Leo Strauss for the supremacy of presidential power as the "rule of one wise man."

Some of my posts on Mansfield's arguments can be found here, here, and here.

Mansfield's review of The Executive Unbound can be found here.


Anonymous said...

Obama, alpha male?

Kent Guida said...

Dear Larry,
I agree with you that bombing Libya without congressional authorization violates the Constitution. But I'm not sure I agree about who lines up where on the question.

Doesn't Mansfield's review suggest his views are more in line with yours?

And who are the other "followers of Leo Strauss" in question? Harvey Flaumenhaft's book on Hamiltion doesn't take that position, as I recall.

Finally, isn't the general question of presidential prerogative a good deal more ambiguous than the Libya bombing, which seems quite straightforward?

Best regards,
Kent Guida

Larry Arnhart said...

Mansfield's writing is ambiguous in his review.

But in earlier writings--including an article for the WALL STREET JOURNAL in May 2, 2007--Mansfield explicitly defended "one-man rule" as the "rule of one wise man" suggested in Aristotle's POLITICS.

I have heard many Straussians make similar arguments. Some are even willing to endorse Carl Schmitt's "decisionism" as an alternative to the rule of law.