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.