Balkinization  

Wednesday, January 11, 2006

Mansfield on Bush: Machiavelli Made Me Do It

Guest Blogger

David Luban

The January 16 issue of The Weekly Standard contains a remarkable article by Harvey Mansfield, the William R. Kenan Jr. Professor of government at Harvard, in defense of broad executive power. Mansfield is one of the best-known followers of Leo Strauss in academic political philosophy - a notable theoretician, conservative publicist, and (not so incidentally) translator of Machiavelli's The Prince.

In brief, Mansfield argues that the U.S. Constitution creates a strong executive because the framers understood that the rule of law won't suffice in an emergency. When the chips are down, the strong executive must seize the reins and do whatever it takes - and (like the Weimar Constitution whose emergency clause inspired Carl Schmitt to identify sovereignty with the "power of the exception") our Constitution builds the power of the exception into the President's role. Unlike the currently notorious arguments of John Yoo, based on (selective) use of founding-era history, Mansfield defends the monarchical executive through philosophical abstractions ("executive power represents necessity", "The Constitution mixes choice and necessity"). The article is loaded with gravitas, and Mansfield obviously wants to sound deep.

But the depth is all on the surface. Read with care, Mansfield's arguments are profoundly silly.

1. "But enemies, being extra-legal, need to be faced with extra-legal force." A total non sequitur. Worse: mere games with words. A pickpocket is extra-legal, but it in no way follows that he needs to be faced with extra-legal force.

2. "...the first republic with a strong executive." I don't know if that is true. But if so, so what? Before the U.S., there had been only a handful of republics (Rome, Geneva, Florence, a couple of other cities) - but thousands of monarchies with strong leaders. Leadership above the law has been humanity's longest-running experiment in government, not some brilliant innovation of the framers. This sentence is merely slippery in its suggestion that the framers' big, brilliant idea was one-man rule. Until Yoo, I don't think anyone had ever seriously supposed that the framers were aiming to reinstitute monarchy.

3. "...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." Dishonesty piled on dishonesty; three of them in the first sentence alone:

A. "extra-legal powers such as commanding the military." Not an extra-legal power, because military commanders are governed by law and were at the time of the framing. The American articles of war of 1775 and 1776 require soldiers to obey lawful orders.
B. "extra-legal powers such as making treaties". Huh? Treaties require senate advice and consent, and at that point they become law. Nothing extra-legal there.
C. "...pardoning the convicted." I suppose it's an extra-legal power, although in practice a pretty trivial one. But criminal juries also have the power of nullification, so this isn't a uniquely executive power.
D. "...veto of legislation." Not an extra-legal power, since the veto can be overridden. All the veto really means is that the President can force Congress to pass legislation by a super-majority rather than a simple majority. It's a wrinkle in the law, not a violation of it.

As for the second sentence, it conveniently mentions the oath clause and ignores the take care clause. The President shall (i.e., is required to) take care that the laws are faithfully executed.

So everything in these two sentences except "pardoning the convicted" is nonsense.

4. "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. " True enough. But nothing whatever follows about the Schmittian "power of the exception" falling to the executive. If the executive turned out to be the problem (President goes insane and is about to push the nuclear button), that would be an emergency that would require someone to break the rules and stop the President from launching an attack that his commander-in-chief power might (hypothetically) entitle him to launch. Schmitt's book begins: "Sovereign is he who holds the power of the exception." If Kissinger instructed the generals not to follow Nixon's orders if they seemed wacky, Kissinger was sovereign. If Nancy Kissinger whispered to the generals that they shouldn't follow Henry's instructions when he was in his cups, and the generals went along with her, she was sovereign. Schmitt's sentence is a definition of what a sovereign is, namely whoever can in fact cause rules to be suspended. In no way does it follow from this definition that the chief executive always gets to break the law. Schmitt himself moved to the latter proposition - but it's a logical blunder, the same one that Mansfield commits.

Therefore, "In the Constitution executive power represents necessity in the form of response to emergencies. It anticipates that events will occur or situations will arise that we cannot anticipate through our laws; it anticipates what we cannot anticipate" comes from nowhere except Mansfield's own imagination. Every branch of government is constrained by law. Every branch of government could, under some circumstances, break the rules in an emergency (under the time-honored maxim "It's easier to get forgiveness than permission").

5. "The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law." Last time I checked, physics does not include the concept of discretion. A speeding bullet has loads of energy but no discretion about where to go. The Straussians have always been famous for having contempt for physical science matched only by their ignorance of it.

6. "Secrecy is necessary to government yet almost incompatible with the rule of law....Yet secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision." How can you hold anyone responsible for something if they conceal the fact that it happened?

Thus: "We do not need to know, for example, how important Vice President Cheney is; we can praise or blame President Bush for choosing to be advised by him." Read this sentence. Then read it again. Then scratch your head and ponder on what basis we can praise or blame Bush for choosing to be advised by Cheney if we don't know whether Cheney advises him.

7. "...American society, in imitation of American government, makes so much use of one-man rule. In all of its institutions--corporations, unions, sports teams, gangs, and universities--our republic likes to place power in the hands of one person, and then hold him responsible." I don't know much about the structure of the Mafia or Mara Salvatruccha, and I suspect that Harvey Mansfield doesn't either. Do they have one-man rule? Is the capo held responsible? Anyway, I didn't think that either of these gangs were "institutions of our republic," but maybe, if you believe in the power of the exception and the need for extra-legality, that little difficulty drops away. Does Harvard enjoys "one-man rule"? Thank heaven that none of the universities I've ever been associated with has had it. Who's the one-man ruler of the Yankees? Steinbrenner or Torre? If the former, who's holding him responsible? If the latter, how much power does he have? None of this stuff seems even close to correct; but the fact that Mansfield looks at American society and sees one-man rule everywhere speaks volumes about him.

8. "From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges, who are thereby placed in a false position. If they give approval readily, they go against their profession as judges and fail to give judicious consideration to each case. Yet if they think as judges in terms of criminals rather than enemies, that may do harm to the country." This displays a remarkable level of misunderstanding of what judges do (remarkable if you hold a named chair in Government at Harvard). Whether judges give approval readily or not depends on what the legal standard is. If it's "probable cause" or "some evidence", or even less, the law tells them to give approval readily. If it's a higher standard, the law tells them to give approval less readily. They should give judicious consideration to each case even if the standard is so permissive that they always give approval. Mansfield seems to suppose that judges are required to "think in terms of criminals" - a TV caricature of what judges do.

9. "We note that President Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if legality could guarantee success and morality could make our enemies give up. " More non sequiturs. Nobody who wants Bush to obey the law think that by doing so they guarantee success. Nor, by the way, does breaking the law guarantee success. Nothing guarantees success. Nor, obviously, do Bush's critics maintain that morality could make our enemies give up. Morality isn't a magic bullet to use against your enemy. Maybe Mansfield ought to notice that immorality isn't a magic bullet either. (Steve Holmes's brilliant essay in The Torture Papers acutely points out that the Bush Administration is engaged in magical thinking: if our enemy violates civilized standards, we prove that we're serious by doing so ourselves. If they're terrorists, we become snoops, liars, and torturers, which proves that we play to win.)

What's most remarkable about this article is that nearly every sentence in it is false.

Comments:

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 ....
 

Great post--

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.

Regards,

Charly
 

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?
 

David,

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.)
 

As long as you don't make the Satanist a nice guy too....
 

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"


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....
 

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