The Magazine

The Law and the President

In a national emergency, who you gonna call?

Jan 16, 2006, Vol. 11, No. 17 • By HARVEY MANSFIELD
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Editor's Note: Harvey Mansfield, one of America's leading political scientists and a widely published author, will deliver the 2007 Jefferson Lecture in the Humanities at the Warner Theatre in Washington, D.C., on Tuesday, May 8, 2007. The annual NEH-sponsored Jefferson Lecture is the most prestigious honor the federal government bestows for distinguished intellectual achievement in the humanities. We have reposted these Mansfield classics from THE WEEKLY STANDARD archive in honor of that event.

EMERGENCY POWER FOR SUCH UNDERHANDED activities as spying makes Americans uncomfortable and upset. Even those who do not suffer from squeamish distaste for self-defense, and do not mind getting tough when necessary, feel uneasy. A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force.

This home truth gets little recognition from critics of the Bush administration's surveillance activities in the war on terror. Some of its defenders, too, seem unaware of the full extent to which the Constitution addresses the problems we face today and how useful and relevant its principles prove to be.

One can begin from the fact that the American Constitution made the first republic with a strong executive. A strong executive is one that is not confined to executing the laws but has 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.

Thus it is wrong to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters. This is simplistic, small-r republican thinking of the kind that our Constitution surpassed when it constructed a strong executive. The Constitution took seriously a difficulty in the rule of law that the republican tradition before 1787 had slighted. The difficulty is obvious enough, but republicans tend to overlook it or minimize it because they believe, as republicans, that power is safer in the hands of many than in those of one or a few. Power is more surely in the hands of many when exercised in the form of law--"standing rules," as opposed to arbitrary decree. Republics tend to believe in the rule of law and hence to favor legislative power over executive.

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. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. "Necessity knows no law" is a maxim everyone admits, and takes advantage of, when in need. Small-r republicans especially are reluctant to accept it because they see that wise discretion opens the door to unwise discretion. But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law. We need both the rule of law and the power to escape it--and that twofold need is just what the Constitution provides for.

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. The legislative and the judicial powers (and the executive insofar as it merely executes laws) represent our choices as they have been fixed in law, our foresight as far as it goes. The Constitution mixes choice and necessity, reflecting our desire for self-government (which takes effect in our legislation) and our recognition of the limitations of human foresight and the imperfection of human laws. These are opposite principles made into opposing elements of our government, yet they are also complementary. Each needs the other, and the constitutional system makes each in some degree aware of the other.

Yet the legislature and the judiciary will of course be partial to the rule of law, and the executive partial to the need for discretion. The Constitution maintains both opposite principles by arranging for an interested party or parties to support that principle in exercising its power. It does not try to teach the overall truth to all parties, as if it were possible to have the legislature and judiciary demurely defer to the executive when discretion is needed, and the reverse when the rule of law rightly asserts itself. No, there will be conflict between discretion and the rule of law, each party aware of the other principle but more convinced by its own.

That is why the two principles do not coincide with the differences between liberals and conservatives, or Democrats and Republicans. Democrats uphold the rule of law now, because as things stand that is all they can hope for. When they held the presidency with Bill Clinton, it was they, during the impeachment trial, who called for pardon and the Republicans holding Congress who tried manfully to vindicate the rule of law by punishing a president who admitted he had violated the law.

In combining law and discretion, the Framers of the Constitution made a deliberate departure from the sorry history of previous republics that alternated between anarchy and tyranny. The Federalist Papers, the most authoritative source for understanding the thinking of the Framers, make it clear that republicans had gone astray because they had overconfidently ignored the necessities that all governments face and had tried to wish away the advantages of size, power, flexibility, foresight, and prudence that monarchies may offer. In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. The Framers made a strong executive in order to have both power and security, and they took note of emergency occasions when more power gives more security.

Separation of powers was a republican invention of the 17th century, but the Framers improved it when they strengthened the executive. They enabled the executive to act independently of the legislature and not merely serve as its agent in executing the laws. In the current dispute over executive surveillance of possible terrorists, those arguing that the executive should be subject to checks and balances are wrong to say or imply that the president may be checked in the sense of stopped. The president can be held accountable and made responsible, but if he could be stopped, the Constitution would lack any sure means of emergency action. Emergency action of this kind may be illegal but it is not unconstitutional; or, since the Constitution is a law, it is not illegal under the Constitution.

To be held responsible, the executive must be able to act independently. To the extent that he depends on others to act, as in getting a law passed, responsibility is distributed to others and it is no longer clear who precisely is responsible. A president can evade responsibility by consulting with others and then, if something goes wrong, put the blame on them. This is one of the oldest tricks in the book, and canny politicians will often refuse to be consulted lest they get the blame for someone else's mistake and lose the ability to lay blame themselves. To be sure of responsibility you must fix it on one person; true responsibility is sole responsibility. That is why, under our republican Constitution, the people, when they want to hold the whole government responsible, end up holding the president responsible.

The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law. Energy has its place in the executive, and the foremost guarantee of energy is "unity" (Federalist 70), meaning unity in one person as opposed to a committee or a council. Unity facilitates "decision, activity, secrecy, and dispatch." Note secrecy in this list. Secrecy is necessary to government yet almost incompatible with the rule of law (the exception being when congressional committees meet in "executive," i.e. secret, session). Yet secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision. To blame or reward him, one does not have to enter into "the secret springs of the transaction," as would be necessary if responsibility were shared.

In the present administration, we do not really need to know the sort of secrets we learn from reporters like Bob Woodward. 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. With one person in charge we can have both secrecy and responsibility. Here we have the reason that 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. That is our republican maxim, quite different from the traditional one that sees safety in numbers.

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. 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.

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. But it is precisely difficult situations that we should think about and counsels of perfection that we should avoid. Otherwise we end up admitting truth with a bad conscience, as did John McCain recently, when after denouncing the use of torture, he suddenly said on the contrary: "You do what you have to do." In this way you have morality and the rule of law on one side and necessity on the other. But isn't there a legal and a moral way to deal with necessity? Our Constitution, properly understood, shows that there is. We need to take better stock of our own achievements.

Harvey Mansfield is the William R. Kenan Jr. professor of government at Harvard.