Don’t miss Harvey C. Mansfield, Jr.’s latest, a characteristically elegant and incisive look at the novelty and importance of the American executive against the backdrop of the NSA kerfuffle.
Hat tip: Tom Cerber.
Update: The comments call out attention to this exceedingly hostile response by David Luban. I dont yet have the energy to engage in a point-by-point response to Lubans nastiness, but Ill give you a taste of his argument and of how Id respond on Mansfields behalf. (I hasten to add that HCM is perfectly capable of taking care of himself.)
Heres Mansfields statement:
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.
Heres what Luban says:
"But enemies, being extra-legal, need to be faced with extra-legal force." A total non sequitur. Worse: mere games with words. A pickpocket is extra-legal, but it in no way follows that he needs to be faced with extra-legal force.
Mansfield begins with an overarching distinction between criminals and enemies, the former generally containable within the rule of law, the latter not self-evidently so. A criminal doesnt aim to destroy a government, merely to break the rules for his own benefit. An enemy obviously aims to destroy the entire system of law. Must a government use only "lawful" means to deal with such a threat? Mansfield doesnt think so. Neither does Abraham Lincoln who asked Congess on July 4, 1861, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?" And if to define by law is to delimit, what are we to make of this statement by Alexander Hamilton?
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.
Mansfield, Lincoln, and Hamilton are all grappling with serious issues of national defense and national self-preservation. Luban is the one playing games with words.