The Wall St. Journal online has today published a lengthy and truly astonishing article by Harvard Government Professor Harvey Mansfield, which expressly argues that the power of the President is greater than "the rule of law."
The article bears this headline: The Case for the Strong Executive -- Under some circumstances, the Rule of Law must yield to the need for Energy. And it is the most explicit argument I have seen yet for vesting in the President the power to override and ignore the rule of law in order to recieve the glories of what Mansfield calls "one-man rule."
That such an argument comes from Mansfield is unsurprising. He has long been a folk hero to the what used to be the most extremist right-wing fringe but is now the core of the Republican Party. He devoted earlier parts of his career to warning of the dangers of homosexuality, particularly its effeminizing effect on our culture.
He has a career-long obsession with the glories of tyrannical power as embodied by Machiavelli's Prince, which is his model for how America ought to be governed. And last year, he wrote a book called Manliness in which "he urges men, and especially women, to understand and accept manliness" -- which means that "women are the weaker sex," "women's bodies are made to attract and to please men" and "now that women are equal, they should be able to accept being told that they aren't, quite." Publisher's Weekly called it a "juvenile screed."
I'll leave it to Bob Altemeyer and others to dig though all of that to analyze what motivates Mansfield and his decades-long craving for strong, powerful, unchallengeable one-man masculine rule -- though it's more self-evident than anything else.
But reading Mansfield has real value for understanding the dominant right-wing movement in this country. Because he is an academic, and a quite intelligent one, he makes intellectually honest arguments, by which I mean that he does not disguise what he thinks in politically palatable slogans, but instead really describes the actual premises on which political beliefs are based.
And that is Mansfield's value; he is a clear and honest embodiment of what the Bush movement is. In particular, he makes crystal clear that the so-called devotion to a "strong executive" by the Bush administration and the movement which supports it is nothing more than a belief that the Leader has the power to disregard, violate, and remain above the rule of law. And that is clear because Mansfied explicitly says that. And that is not just Mansfield's idiosyncratic belief. He is simply stating -- honestly and clearly -- the necessary premises of the model of the Omnipotent Presidency which has taken root under the Bush presidency.
This is not the first time Mansfield has expressly called for the subordination of the rule of law to the Power of the President. In January of 2006 -- in the immediate aftermath of revelations that President Bush had been breaking the law for years by spying on the telephone conversations of Americans without warrants -- Mansfield went to The Weekly Standard and authored a truly amazing article, which I wrote about here (see item 2).
Unlike dishonest Bush followers who ludicrously claimed that Bush's eavesdropping was not illegal, Mansfield embraced reality and candidly argued that President Bush possesses the power to break the law in order to fight The Terrorists. The headline of that article presented the same mutually exclusive choice as the WSJ article today: The Law and the President -- in a national emergency, who you gonna call?
In that article, Mansfied claimed, among other things, that our "enemies, being extra-legal, need to be faced with extra-legal force"; that the "Office of President" is "larger than the law"; that "the rule of law is not enough to run a government"; that "ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion"; that "with one person in charge we can have both secrecy and responsibility"; and most of all:
Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.
"Law does not apply" -- that is Mansfield's belief, and the belief of the Bush movement. I didn't think it was possible, but Mansfield, with today's article in The Wall St. Journal, actually goes even further in advocating pure lawlessness and tyranny than he did in that remarkable Weekly Standard screed. He begins by describing "the debate between the strong executive and its adversary, the rule of law." He then says: "In some circumstances I could see myself defending the rule of law," but "the rule of law has two defects, each of which suggests the need for one-man rule."
The rule of law has two defects, each of which suggests the need for one-man rule. That is what is on the Op-Ed page of The Wall St. Journal this morning. The article is then filled with one paragraph after the next paying homage to the need for a Great Leader who stomps on the rule of law when he chooses -- literally:
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. . .
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. . . .
In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong.
In the course of explaining how the rule of law applies only in "quiet times," Mansfield also argues that "civil liberties are subject to circumstances," not inalienable, and that "in time of war the greater dangers may be to the majority from a minority." Thus, he explains -- in what might be my favorite sentence -- "A free government should show its respect for freedom even when it has to take it away."
I'm not going to spend much time rebutting the notion that the American President has the power to act as a Prince and override the rule of law when circumstances supposedly justify that. For one thing, given that this belief has governed our country since the 9/11 attacks, I've made the argument many times before, including here and here, as well as in my book.
But more so, one would hope that no response is really necessary, since most Americans -- outside of the authoritarian cult that has followed George W. Bush as Infallible War Leader -- instinctively understand that America does not recognize such a thing as a political official with the power of "one-man rule" that overrides the rule of law. That we are a nation of laws, not men, is so basic to our political identity that it should need no defense.
And for those with any lingering doubts about how repugnant Mansfield's vision is to the defining American political principle, I would simply turn the floor over to the great American revolutionary Thomas Paine (.pdf), writing in Common Sense:
The point here is not to spend much time arguing that Mansfield's authoritarian cravings are repugnant to our political traditions. The real point is that Mansfield's mindset is the mindset of the Bush movement, of the right-wing extremists who have taken over the Republican Party and governed our country completely outside of the rule of law for the last six years. Mansfield makes these arguments more honestly and more explicitly, but there is nothing unusual or uncommon about him. He is simply expounding the belief in tyrannical lawlessness on which the Bush movement (soon to be led by someone else, but otherwise unchanged) is fundamentally based.
This is why he is published in The Weekly Standard and The Wall St. Journal -- the two most influential organs for so-called "conservative" political thought. All sorts of the most political influential people in our country -- from Dick Cheney to Richard Posner to John Yoo and The Weekly Standard -- believe and have argued for exactly this vision of government. They literally do not believe in our constitutional framework and our most defining political values. They have declared a literally endless War which, they claim, not only justifies but compels the vesting of unlimited power in the President -- "unlimited" by Congress, the courts, American public opinion and the rule of law.
That continues to be the central political crisis we have in this country. It is an encouraging development that Congress is exercising aggressive oversight and investigative powers, but the administration is stonewalling completely, and will continue to, because they do not recognize any duty to respond, to answer questions, to be subject to scrutiny or accountability. We live in stormy times, and thus, as Mansfield says: "In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong."
That is why -- as jarring as it is -- it is actually necessary to ask presidential candidates whether they intend to exercise the power to imprison American citizens with no charges of any kind. The dominant political movement in this country believes in that power and has defended and exercised it. Mansfield's beliefs may be twisted and tyrannical and radical and profoundly un-American. But they are also the beliefs that have propelled our government for the last six years and -- absent some serious change -- very well may continue to propel it into the future.
UPDATE: I just want to add one related point here. Much of the intense dissatisfaction I have with the American media arises out of the fact that these extraordinary developments -- the dominant political movement advocating lawlessness and tyranny out in the open in The Wall St. Journal and Weekly Standard -- receive almost no attention.
While the Bush administration expressly adopts these theories to detain American citizens without charges, engage in domestic surveillance on Americans in clear violation of the laws we enacted to limit that power, and asserts a general right to disregard laws which interfere with the President's will, our media still barely discusses those issues.
They write about John Edwards' haircut and John Kerry's windsurfing and which political consultant has whispered what gossip to them about some painfully petty matter, but the extraordinary fact that our nation's dominant political movement is openly advocating the most radical theories of tyranny -- that "liberties are dangerous and law does not apply" -- is barely noticed by our most prestigious and self-loving national journalists. Merely to take note of that failure is to demonstrate how profoundly dysfunctional our political press is.