Strengthening Constitutional Self-Government

No Left Turns

Lincoln and Bush

My latest oped, on TAE Online, deals with "Lessons from Lincoln" and follows from Benjamin Kleinerman’s piece in the APSA’s Perspectives on Politics.

Update: Ben Kleinerman (with whom I had a drink at the last APSA, as we discovered as we exchanged emails) responds:

As a response to the article, I have two substantive points. First,
concerns the manner in which it is introduced: "Because such actions
weren’t uniformly popular, Lincoln was compelled to respond to his
critics." I would say that because such actions were outside the
typical bounds of the Constitution, Lincoln felt the Constitution
compelled their justification. Even if his actions had been uniformly
popular, Lincoln would still have felt that the Constitution compels
their public justification. This is what I was getting at in the
conclusion of my article: ’Lincoln did more than merely take those
actions necessary for the preservation of the Constitution; he also
publicly announced his reasons behind the constitutionally questionable
actions he took. In fact, it is only because of this that we can
discern the three lessons that I have drawn. Lincoln attempted to avert
the danger, suggested by the medicine metaphor, that the public will
become ’addicts’ of executive power, by trying to teach the public that
his questionable actions were acceptable only within the limits imposed
by the Constitution’s preservation’ (p.808-809). In other words,
precisely because of the people’s insufficient attachment to the
Constitution, it becomes the constitutional responsibility of a
prudential executive acting outside its bounds to preserve, through his
rhetoric, the superiority of the Constitution during the crisis.


As for the point that "The novelty of our current situation is that our
crisis seems to be open-ended", this seems exactly right and, I would
argue, requires us to beware of using the old notion of extraordinary
executive power as a response to an extraordinary situation as our
standard. In other words, the distinction between the ordinary and the
extraordinary so essential to Lincoln’s justification of his actions no
longer applies given the open-ended threat from asymmetric warfare. It
seems that continuing to use such a distinction leads to a permanently
extraordinary executive. Perhaps a permanently discretionary (as
opposed to extraordinary) executive is necessary, but, if so, we, as a
constitutional people, should at the same time insist that such
discretionary powers come into existence only when necessary and that
the executive does not have an inherent legal right to such powers. In
other words, in exercising his powers, the executive must always expect
to show and we should expect him to show the public why they were
necessary; it is insufficient simply to assert as a species of legal
defense that he has an inherent right to use them whenever he
chooses--this is why neither the founders nor Lincoln assert that the
executive possesses a "prerogative" power which would imply a legal
right to act outside the Constitution. In other words, while the
executive has the discretion to act outside the Constitution, the public
should remain the rightful judge of the necessity of such action.

Knippenberg responds: Ben’s second point is the crucial one, to my mind. We can’t simply leave it at assertions of prerogative or "national security." There has to be an argument about the nature of the threat we face and the necessity of the discretionary powers. This argument is, of course a political one, not "merely" a legal or constitutional one.

Update #2: You can read Ben Kleinerman’s initial op-ed criticism of GWB’s early response to his critics here.

Discussions - 1 Comment

Perhaps a permanently discretionary (as opposed to extraordinary) executive is necessary, but, if so, we, as a constitutional people, should at the same time insist that such discretionary powers come into existence only when necessary and that the executive does not have an inherent legal right to such powers.

Hence the usefulness of the unfortunately-forgotten practice of the congressional declaration of war. Not a vague authorization to use force, but a straightforward declaration.

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