The Right Coast

January 07, 2006
Harvey Mansfield: Interesting but Misguided
By Tom Smith

This piece by Harvey Mansfield, professor of Government at Harvard and intellectual godfather of many Straussians in and out of government, is interesting, but actually, the last thing we need to hear right now. I take it his fundamental point is that the President acts outside the law and is unrestricted by law, when he uses his Constitutional powers to defend the nation against enemies.

Part of the reason I don't like Straussianism is you never know when they are being serious, and when they are just taking some pose because they think it is useful to do so. Perhaps this is a defensible tack to take when the masses are peasants and can't read, but in a highly educated country such as this one, it tends to chronically underestimtate and even insult the intelligence of the reading public. So, I don't really know if Mansfield is being incoherent on purpose, or if he really believes what he is saying. I suppose one must assume the latter.

The incoherence at the heart of Mansfield's argument is that it makes no sense to think of the President as acting above or outside of the law, as he suggests we should, because the President gets whatever legitimate power he gets from the Constitution and (and this is something we never want to forget) the Constitution is law. Even the defense of necessity is a legal defense, and law sets limits on the definition of necessity. If we take Mansfield's line, then the critics on blogs such as Kos are correct; we are imagining the President as a sort of King, and a divine right king at that.

I agree with the point that the guys at Powerline have made repeatedly, that Jackson's opinion in Youngstown Steel cannot be taken as the last word on Article II powers vis a vis Article I powers in wartime. After all, it was just a concurring opinion. Moreover, its division of presidential powers into various zones is exactly the kind of vague reasoning that is least helpful when you most need it. But, the key point, that the President's Article II powers, even in wartime, and even when providing for the national defense, are limited and are subject to the law of the Constitution, is indispensible. If this is not Livy's, or Machiavelli's, or Neitzsche's, or Plato's idea of a Republic, well, I could not care less. In the land of law, they are no more authority than the Saturday Evening Post.

In fact, while I am on the point, let me just express the view that this whole idea of power and the state, at its heart, being above or outside of the law, owes a lot more to the intellectual tradition of pre-war and during-war Germany, than it does to anything we Americans should attach ourselves to. German ideas of the state as beyond the law -- sound a little spooky, maybe? I think so too. This is America, and we're doing something different.

So, I think it is absolutely imperative that conservatives, supporters of a strong national defense, and their ilk, not be swayed by Mansfield's sorts of arguments. Am I stooping so low as to call them un-American? Well, I guess I am, if by un-American you mean owing a lot more to European views that one would hope were utterly discredited by the catastrophe of the 20th century. America is law land, for better or worse. There's no such thing as an office above the law, either. I think Mansfield's argument that the President's oath of office is somehow extra legal, is one of the dumbest arguments I have ever heard, which is one of the reasons I suspect he is engaging in platonic lying, since he is anything but dumb.

Be all that as it may, this does present the very serious issue of what the legal limitations on the President's national defense powers ought to be in time of war, or more accurately, in time of national danger and low-intensity war, a condition we unfortunately are likely to face for many years to come. It seems to me the only real alternative is to build up this law as necessary the way we usually do, case by case, with courts exercising their powers interpreting and applying law, including the Constitution. I doubt very much that the NSA program as described goes beyond what the President may constitutionally do. But it is easy to imagine programs that would do so. Does anybody, except perhaps Mansfield, really think the President could start monitoring any and all domestic communications, using super high tech means to ferret out suspicious ones? Or, suppose the White House were to order all men of Muslim descent into internment camps? Are we really to think such an order would be lawful? I hope not, and I don't think so. But I also don't think these limits are likely to be found in global generalizations based on principles such as privacy or the like. I would expect some combination of executive practices and precedents, court decisions and statutes, not to mention good old fashioned political constraints, to provide the materials out of which will be built the fences and walls that protect our liberties against the real danger of a state that oppresses us and deprives us of privacy and ultimately liberty. Unfortunately, that is not the only danger we face.