Harvey Mansfield Waterboards the Constitution

THE RIGHT IN ECLIPSE. The right-wing definitely seems to be in fin de siecle mode as they anticipate the end of the Bush era. Given the over-all immaturity of the right, that means that conservative commentators are abandoning message discipline altogether and indulging in wishful thinking about transforming American politics so they can always win. It's difficult to say whether the right is just venting their frustration over their inability to control American democracy, harmlessly beating their chests about how tough they're going to be the next time they hold office, or thinking seriously about whether they should launch a Hitler-like constitutional coup the next time they're in power. Maybe all three. However, there's now a fair amount of conservative thinking about how to take the democratize out of American democracy.

THE POLITICAL HACKS AS SKIRMISHERS. Unsurprisingly, Newt Gingrich was the first to jump on the bandwagon last fall by arguing that the First Amendment should be revised to limit the advocacy of terrorism. But Newt's real target is the domestic American opposition to military adventures that he saw as being all too successful in last November's elections. More recently, Thomas Sowell has been hinting at the need for a military coup to deal with the general "degeneracy" of American politics, culture, and education. Although more ambitious than Newt, Sowell is thinking along the same line. Given that the right can't control the United States as it is, they're wondering about the desirability of transforming fundamental American institutions in ways to allow permanent right-wing control. In other words, they're wondering about "regime change" in the U. S.

THE PHILOSOPHER AS CLOSER. A couple of days ago, Harvard political philosopher Harvey Mansfield weighed in with an argument for an American president over-ruling the Constitution and statutory law, taking away individual rights, and ruling as a one-man government--in other words as a tyrant. Unlike Newt and Thomas Sowell, Mansfield takes the idea of suspending or overthrowing American democracy seriously enough to attempt to give it an intellectual justification and he refers to Machiavelli, Locke, Montesquieu, the American Founding Fathers, Alexis de Tocqueville, and others in an effort to "prove" that a dictatorial executive can be justified by American and Western intellectual traditions.

NOT SO HONEST AFTER ALL. According to Glenn Greenwald, Mansfield's article is "a clear and honest embodiment of . . . the Bush movement." Where many conservative spokespeople as disguising their true believes in "politically palatable slogans," Greenwald sees Mansfield as "stating -- honestly and clearly -- the necessary premises of the model of the Omnipotent Presidency which has taken root under the Bush presidency. "

However, Mansfield's honesty is strictly limited. Although he is being honest in his unadorned advocacy of one man rule over the rule of law, Mansfield's intellectual justifications for one man rule are just as thick with lies, distortions, half-truths, and deliberate misinterpretations as any Dick Cheney speech, William Kristol article, or Paul Wolfowitz pronoucement.

Let me demonstrate Mansfield's dishonesty by referring to one of his early passages.

The first instance of a Mansfield distortion is his argument that one of the defects of the "rule of law" is that "the law does not know how to make itself obeyed." The obvious point here is that laws need executives authority and a police apparatus to be administered or enforced. Where Mansfield distorts John Locke and the American founders is in his idea that executive authority is something outside the rule of law. That's ridiculous. In Locke, the rule of law would be the mechanism through which the "people" governs itself subsequent to the formation of a society. Broadly stated, the purpose of the rule of law is to promote "the common good" and protect property (defined as lives, liberties, and estates). In this context, executive administration of the law is just as much a part of the rule of law as the legislative function of formulating law or the judicial function of adjudicating disputes. In the American Constitution, the presidential executive is even more deeply implicated in the rule of law because the veto power makes presidential approval a crucial element in the process of making law.

Harvey Mansfield knows all this just as well if not better than I do. In treating the executive as inherently separate from the rule of law, Mansfield knowingly distorts the arguments of Locke, the Federalist Papers, and the Constitution.

In other words, Mansfield is lying with political theory.

Waterboarding the Constitution. The second example of Mansfield's distortions comes with his implication of one-man rule in the conception of the American president. First, Mansfield argues that the best embodiments of the executive "energy" desired by Alexander Hamilton are Machiavelli's prince and Aristotle's "best man." It will be seen that Mansfield is mistaken here, but a mistake is not a lie. So, I'm not accusing Mansfield of doing anything deceptive with that.

Where Mansfield begins deceiving is when he associates the presidency with Machiavelli's prince. According to Mansfield, the vesting of "executive power" in the president ultimately means that "the American Founders showed a similar understanding to Machiavelli's when they argued for and fashioned a strong executive."

The argument is self-refuting and Mansfield efficiently refutes himself. He mentions that taking "care that the laws be faithfully executed" is part of the oath of the President. The President has other powers such as serving as commander in chief, entertaining foreign ambassadors, and making treaties, but none of these powers entails overriding the law. In fact, the power to act as commander in chief of the military is heavily circumscribed by Congress' power to declare war and the need to raise and appropriate money for the military through a law-making process. Mansfield emphasizes that the president's pardoning power has a "whiff of prerogative," but Mansfield tortures the sense of the Constitution when he claims that his one "whiff" of semi-arbitrary authority (semi-arbitrary because it's still authorized by the Constitution) adds up to a Machiavellian understanding of executive power.

Perhaps Mansfield's intellectual method could be referred to as "waterboarding the Constitution."

IN THE NAME OF A MISTAKE. In the final analysis, Mansfield's argument comes down to the idea that energetic government is most commonly associated with one-man rule (and Mansfield means "man" when he refers to "one-man" rule). This is a typical mistake for a Straussian. As an opponent of modernity and democracy (and Mansfield makes his contempt for the "democratizing" of everything very plain), Mansfield is incapable of recognizing the enormous energies that have been unleashed by the partial democratizing of modern societies. In the U. S. , government has become more not less powerful with each successive wave of democratization. Jeffersonian Democracy, Jacksonian Democracy, the New Deal, and the civil rights movement all freed up energies that made American government stronger, wealthier, and more ambitious. To the contrary, the stifling of democracy in the South through the end of the segregation era suppressed the whole population black and white.

This should be the lesson that Mansfield learns from the Iraq War. The Bush administration's attempts to act outside the law and public opinion have been de-energized the war on terror. That's because Bush and the right have had to devote much of their energy to fending off domestic opposition. If American government took away the freedoms of the American population as Mansfield recommends it should do on occasion, it would have to expend much of its energy on suppressing an American public that would be resisting the revoking of its long-established rights. As Mansfield well knows, Machiavelli believed that the best solution for a new prince in dealing with a population that's used to living freely is to destroy that population. Even if that's not the case, a one-man American government would have to devote much of its energy to maintaining a police state (not just a police force) to enforce one-man rule and the effect of enforcing one man rule would be to suppress the energies of the population.

That's why one-man rule is weak government. The government's "energy" is ultimately the energy of the people being governed and strong governments like American government has been since the Depression feed off the energy of the population. With "one-man rule," the energy of the government is devoted to suppressing the energy of the population and the energy of both eventually declines.

In other words, Mansfield's ideal of one-man government is a prescription for making American government as weak as Italian governments were during Machiavelli's time.

Like the Bush administration, Harvey Mansfield has been lying up a storm and waterboarding the Constitution in the name of a tremendous mistake.