Seeking the Return of the King

Once upon a time and place, far, far away, there lived a people who felt themselves oppressed by their King. He levied taxes upon them that they felt unjustified. He occupied their country with his troops, and forced them to provide said troops both food and shelter. He denied their petitions and banned their political gatherings. He dissolved their legislatures and assemblies. He had those who protested his actions, or whose writings offended him, arrested and imprisoned. His soldiers killed their fellow citizens. His navy blockaded their ports.

But as I said, that was long ago and far away …

(cont.)

In our time and our place, we have a President who believes that spying on Americans whenever he wishes to do so, and to serve whatever purpose he deems necessary, is his constitutional right, which neither Congress nor the courts can restrain.

[O]n Tuesday … senior officials, including Michael McConnell, the new director of national intelligence, said they believed that the president still had the authority under Article II of the Constitution to once again order the N.S.A. to conduct surveillance inside the country without warrants. […]

“Sir, the president’s authority under Article II is in the Constitution,” Mr. McConnell said. “So if the president chose to exercise Article II authority, that would be the president’s call.”

In our time and our place, the President and his advisers decide whether or not to obey subpoenas issued by Congress, which would require that they testify under oath, claiming the Constitution gives them the right to ignore such trivial matters.

QUESTION: … [W]hy not just testify? Why not comply with the subpoena?

SECRETARY RICE: Because, George, there is an important principle here and this is a White House matter now. It is the case that the compellence of White House staff — it’s a separation of powers issue to testify before a congressional committee is an important constitutional issue.

QUESTION: But dozens of White House staffers have testified to Congress, including Admiral Poindexter for President Reagan.

SECRETARY RICE: And many, many, many have not on the same principle. […]

QUESTION: So you’re not going to comply.

SECRETARY RICE: And what I’m going to do is to concentrate on what I need to do, which is to prepare for this very important meeting at Sharm el-Sheikh a couple of days from now.

And in our time and our place, prominent national newspapers, such as The Wall Street Journal, turn their editorial pages over to a man who argues that Presidential power is supreme, that it supercedes the authority of any other branch of our government, and that in exercising that power he may disregard the rights of any person. In other words, the President is, and should be, above the law.

That man is named Harvey C. Mansfield. He is a Professor of Government at Harvard, a noted admirer, and scholar, of Niccolo Machiavelli, the Medieval Italian political philosopher whose primary work, wrote The Prince argued that morality should not concern a ruler in the exercise of his or her authority, because “the only real concern of the political ruler is the acquisition and maintenance of power.”

Here’s what Mr. Mansfield wrote in his Wall Street Journal op-ed piece about Presidential power vis-a-vis the Rule of Law under our Constitution:

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. […]

[T]he 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. […]

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. […]

One should not believe that a strong executive is needed only for quick action in emergencies, though that is the function mentioned first. 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.” […]

Only a strong president can be a great president. Americans are a republican people but they admire their great presidents. Those great presidents–I dare not give a complete list–are not only those who excelled in the emergency of war but those, like Washington, Lincoln and Franklin Roosevelt, who also deliberately planned and executed enterprises for shaping or reshaping the entire politics of their country.

I’ve posted a large excerpt here to give you, as much as possible, the true flavor of Professor Mansfield’s argument. One doesn’t have to be well versed in the finer points of Constitutional Law to understand that he is arguing for that very principle opposed by those who crafted our system of government after fighting (and often dying) in the American Revolution. Mansfield euphemistically refers to this principle as the the need for a “strong executive.” However, in the past, before the resurrection of representative democracy as a valid form of government, the principle to which Professor Mansfield would have us swear allegiance was known as the Divine Right of Kings …

… a theory which argued that certain kings ruled because they were chosen by God to do so and that these kings were accountable to no person except God. […]

The king ruled by virtue of God’s authority; therefore he should be obeyed in all things. No group, whether they be nobles, or a parliament, or the people in the street, have a right to participate in this rule; to question or oppose the monarch was to rebel against God’s purpose.

Of course, Mansfield makes no mention of God in the case he makes for a “strong executive” but then he doesn’t need to do so. In place of “God” he substitutes the Constitution itself, and the founding fathers who created it, particularly Alexander Hamilton. I’m not sure which is worse: to claim that one’s authority is derived from an unknowable, unseen but omnipotent force, or to base it upon a tortured construction of our nation’s founding document and/or one interpretation of the writings of a man who has been dead for over two centuries.

I won’t go detail regarding what a horrible, undeniably wrong and misguided argument Mansfield has fashioned in support of his vision of unlimited Presidential power. Glenn Greenwald has already performed that thankless task better than I ever could. But I will say that what Mansfield, and those on the right who support the abuses of power, the lies, the corruption and the unmitigated arrogance foisted upon us by President George W. Bush, either directly, or through his surrogates, really want is the return of the king. An American king this time, but a king nonetheless.

Here, in Manfield’s own words, is what such conservatives really want, and what they are working so hard to bring about:

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.

That is the heart of it. According to Mansfield we can only be free if we give ultimate power to a single man who may deprive us of our freedom, whenever he deems it necessary. It’s an absurd argument, and not a rational one. The appeal it has is emotional, and arises out of fear and out of a singular distrust of the ideals of liberty, equality and justice. It flows, that is, from a deep and abiding distrust for “We, the people.”

And it is a dangerous appeal, because seeking the return of a king who will set things right more often than not results in creating more misery, less security and less stability. It is the appeal that politicians such as Vladimer Putin make to justify his government’s slide toward autocratic rule. It is the same appeal that led to the rise of tyrants and mass murderers such as Napoleon, Hitler, Stalin and Mao. It is the foundation for every authoritarian ideology since the dawn of time.

And it is profoundly Un-American. That we see so many prominent voices on the right fondly embracing this principle, is beyond disturbing. Our political forebears fought a war to rid themselves of a king over 230 years ago. Now it appears some of us are fighting to re-establish one. God help us if they succeed.

Wall Street Journal

Harvey Mansfield

Unitary Executive

Machiavelli

George W. Bush

Presidential Authority

Constitution

Article II

Alexander Hamilton