Wednesday, January 11, 2006
Mansfield on Bush: Machiavelli Made Me Do It
An excellent take down. When I read Manfield's article, I was stunned by it's obvious stupidity and incoherence. It's just total nonsense. You do a great job of pointing out many of the worst examples; pointing out all of them would require a treatise-length post.
I dunno ... the article is SO bad, I had to wonder if it was some esoteric Straussian ploy to smoke out enemies of our democracy.
My favorite part was the stuff about how emergencies call for exceptions to the laws. Mansfield conveniently failed to notice that FISA has provisions allowing for such (the 15-day suspension after a DoW; the 72-hour retroactive warrant).
In other words, Mansfield wrote his article without bothering to read the statute. Because, you know, the Great Books are all you need.
Sigh. Gotta be some kind of esoterica ....
These folks lie about *everything*, and like all hypocrites, they begin by lying to themselves.
But it really isn't remarkable, it's just more of same old stuff that allowed for exterminating the natives, owning slaves, and practicing apartheid.
Have you ever read the exchange between Hamilton and Madison on Washington and the proclamation of neutrality? There's precedent for Mansfield's argument, and it comes from Hamilton. As far as I know, Alexander Hamilton wasn't a Straussian.
The con-law equivalent of the old lab report shortcut:
Draw curves first.
Then plot data.
You get better results that way.
If the law is so sacred, then why don't liberals mind judges running roughshod over it? At least giving the executive leeway can benefit security. You also have the chance to hold a president accountable on election day. Not so a judge.
Why are you so interested in upholding the law anyway? Wasn't it written by white male oppressors?
Excellent analysis. And now people perhaps have a chance to understand the agenda behind the cults of Lincoln and Churchill (and Pericles) pushed so ardently by the New Authoritarians post 2001.
It is precisely because they believe Lincoln and Churchill jettisoned 'mere' democracy and through the crucible of War, Forward of Defeat, With Us or With Them, became the desired and heroic Ur Dictator.
43's alleged reading over the Christmas holiday re Lincoln is thus not surprising. As was his earlier indulgence in Scharansky in 2004-5.
A protracted non-"war" war, as you note, David, justifying the state of emergency.
Americans have so little experience with genuine ideological agendas in our domestic experience. The full extent and danger before us simply hides in plain sight.
It is hearbreaking to think that the rump (and lumpen) Democrat Party may be all that stands between the New Authoritarians and their objectives. This shadow of the Democrat Party no longer remembers and undestand the New/Fair Deal, let along New Frontier. Or whether "Clintonism" was a tactical concession to Gingrich or just simple intellectual promiscuity.
In the end, the cynicism of the New Authoritarians is breathtaking: that we will willingly forego our birthright and the Enlightenment for tax cuts, cheap consumer electronics from China and rhetoric about the Baby Jesus.
How lovely it would be to prove them wrong.
From Richard Evans' second volume on the Third Reich, quoting the German constitutional lawyer, Ernst Rudolph Huber, on the derivation of Hitler's power as "the Leader":
The authority of the Leader is total and all-embracing: within it all resources available to the body politic merge; it covers every facet of the life of the people; it embraces all members of the German community pledged to loyalty and obedience to the Leader. The Leader's authority is subject to no checks or controls; it is circumscribed by no private preserves of jealously guarded individual rights; it is free and independent, overriding and unfettered.
What Nazi Germany became was noted by Ernst Fraenkel in his monograph entitled The Dual State, where on the one hand there is the "normative state", that is, the formal trappings of government, the bureaucracies, the legislature, any constitutional infrastructure; and then there is the "prerogative state", a sort of extra-legal entity that derives its legitimacy (and freedom of action) from the powers invested in the Leader (the Executive), and whose diktats and actions indeed pre-empt any strictures imposed by the "normative state". Nazi theorists such as Huber and Schmitt invoke the "supremacy of the Leader" especially in the cases of "national emergency", where democratic institutions and procedures simply are inadequate to combat the alleged (or perceived) threat to "the Nation", and where only a Leader invested with plenipotentiary powers
can muster the resources to turn away such "threats to national security". Modern "unitary executive" theorists such as John Yoo dress up their apologia with references to Art. II and "commander-in-chief" doxology, but it's all of the same piece: the Executive (Leader) has untrammeled freedom of action, and not subject to review by any other organ of government. Of course, Yoo et al tirelessly appeal to the notional "it all changed after 9/11"
construct in order to shoehorn into the argument the "national
emergency " qualification (unchallengable by the federal courts), but we are again back to the extra-constitutional "prerogative state" argument, which seemingly is proving too great a temptation for so-called "conservative Republicans" to ignore. Those that advocate such a position always cite Lincoln or FDR as presidents who acted "beyond the law" in times of national emergency; unfortunately, we now see the consequences of this position when such powers are in the hands of a far lesser mortal, who has transformed "national emergency" into the acutely vague "war on terror", wherein there simply is lacking the sort of proportionality of threat that both Lincoln and FDR addressed. That a president can both proclaim a threat and then take extraordinary and possibly unconstitutional measures derived from such a self-defined threat takes us into Orwellian realms, and the public seemingly is inert in the face of all this.
"At least giving the executive leeway can benefit security."
So can giving the judiciary leeway. . . or the legislative. Did you read the post? The executive does not hold a monopoly on security and leeway COULD benefit security. It could also jeopardize it. Nothing about the action guarantees the desired results.
"You also have the chance to hold a president accountable on election day. Not so a judge."
Well, as a general rule this is correct. In the present case it is not. George Bush won't be running for re-election. You can take that to the bank.
I also was stunned by Mansfield's piece when a friend referred me to it. Stunned that such a work packed with deceit could be published. Stunned that its author held a titled professorship at a premier academic institution. Truly, Mansfield is a practitioner of the crafts of Hippias. The thesis of this piece is taken not from the Founding Fathers or the Federalist, but from Carl Schmitt's opening salvo in his 'Political Theology:' 'Sovereign is he who controls the exception.'
As for how the Founding Fathers truly confronted this vision of an imperial war presidency, how's this? James Madison: 'Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies and debts and taxes are the known instruments for bringing the many under the domination of the few.
'In war, too, the discretionary power of the executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals engendered in both. No nation can preserve its freedom in the midst of continual warfare.'
'War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venal love of fame, are all in conspiracy against the desire and duty of peace.'
David Luban is to be congratulated for a penetrating exposure of intellectual dishonesty.
Jeff -- Taking your points in reverse order: Right, Bush won't be running again. But I take that to be an argument for abolishing the term limit. The absence of the term limit actually presents greater risks for the reasons you intimate, which is why the founders avoided it.
Regarding the risks of a powerful executive simply (term limit or not), sure they exist. Nobody's denying that or calling executive power a panacea. But the founders thought it was a risk worth taking. All things considered, things have worked out fairly well since we scrapped the Articles of Confederation. Besdies, Congress can enact other laws (likely requiring enough of a majority to overcome a veto) and even begin impeachment procedings if they like. The founders gave them recourse.
Regarding other branches providing for security, that's a nice thought, but I wouldn't want to cast my lot with a branch whose own memebers compare the establishement of internal order to herding cats. A unitary executive is better at managing security, and it doesn't require intenseive study of Machiavelli to see that. Once again, the founders undrestood that, despite giving part of the treaty power to the Senate.
Don't blame Machiavelli for Mansfield's stupidity! Blame Strauss, sure, but not Machiavelli! On my own blog, I quote the Discourses as follows:
Let he who has become a Prince in a Republic also consider how much more praise those Emperors merited who, after Rome became an Empire, lived under the laws (and) as good Princes, than those who lived an in a contrary manner; and he will also see that it was not necessary for the praetorian soldiers or the multitudes of the legions to defend Titus, Nerva, Trajan, Hadrai Trajan, Hadrian, Antoninus, and Marcus (Aurelius), because their customs, the good will of the people, and the love of the Senate would defend them. He will also see that the Eastern and Western armies were not sufficient to save Caligula, Nero, Vitellius, and so many other wicked emperors, from those enemies which their bad customs and evil lives had raised up against them.
Machiavelli was much more democratic than Mansfield.
Oh no, here come the Pocockians. So instead of being shocked by Machiavelli, we have to make him a nice guy. Is anything worse than that? Man, that just killed a good debate.....
baah, better a Pocockian than a Straussian. (Then again, better a Satanist than a Straussian, so what the hey.)
Mansfield is "a" translator, not "the" translator of Machiavelli. Perhaps other translators' views of Big Mac's original intent, the then original meaning and the then original understanding of Big Mac's writings differ from Mansfield's. Be that as it may, to what extent can it be demonstrated that the founders, ratifiers, "We the People" were favorably influenced by Big Mac's writings regarding the Constitution and the Bill of Rights? In fact, might there be a strong case that these founders et al rejected Big Mac? Put me down as a constitutional vegan.
"A unitary executive is better at managing security"Post a Comment
Not true when said executive is a serial bungler.
"Once again, the founders undrestood that, despite giving part of the treaty power to the Senate.""
...along with the power to repel invaders, suppress uprisings, declare wars, to set the code of military justice, train the military, arm the military, govern the military, determine the rules for capture on land and sea, the military **budget**....
Unitary executive my butt....