Strengthening Constitutional Self-Government

No Left Turns

Walter Berns on executive prerogative

My teacher Walter Berns surveys terrain familiar to anyone who has been in his classroom. His conclusion:

Questions arise: Was the Constitution or, better, the nation actually in jeopardy after 9/11? Was Mr. Bush entitled to imprison the terrorists in Guantanamo? Were the interrogations justified? Were they more severe than necessary? Did they prove useful in protecting the nation and its citizens? These are the sorts of questions Locke may have had in mind in his chapter on the prerogative. Who, he then asked, shall be judge whether "this power is made right use of?" Initially, of course, the executive but, ultimately, the people.

The executive in our case, at least to begin with, is represented by the three Justice Department officials who wrote the memos that Mr. Graham and many members of the Obama administration have found offensive. They have been accused of justifying torture, but they have not yet been given the opportunity in an official setting or forum to defend what they did.

That forum could be a committee of Congress or a "truth commission" -- so long as, in addition to the assistance of counsel, they would be judged by "an impartial jury," have the right to call witnesses in their favor, to call for the release of evidence including the CIA memos showing the success of enhanced interrogations, and the right to "confront the witnesses" against them as the Constitution’s Fifth and Sixth Amendments provide. There is much to be said for a process that, among other things, would require Nancy Pelosi to testify under oath.

I have a hard time believing that the Democrats who control Congress will permit the kind of impartial inquiry Mr. Berns has in mind.

Discussions - 14 Comments

Berns: The executive in our case, at least to begin with, is represented by the three Justice Department officials who wrote the memos

Was the OLC exercising or "representing" the executive? This is the crux of a current argument. (Does the prerogative immunize them or does it make them entitled to a "forum" or does it arguably qualify them for a pardon if need be?) But Berns' article, taken as a whole, is about much more than the reputations or the alleged professional misconduct of these officials, and certainly more than about Nancy Pelosi.

Steve,

Absolutely it's about more than that. I plan to use it when I teach Locke next week in summer school.

I also think that Berns would have to argue that the Court got the steel seizure case wrong, for that decision seems to rule out Lockian prerogative in the American context. Of course, he could also argue that courts are uniquely unsuited to address the kinds of questions and circumstances Locke has in mind (consider, for example, Ex parte Milligan).

Yes. My point was that Locke's prerogative does not imply the theory of a "unitary executive." I don't know what Professor Berns thinks about that. As it is his essay is a kinder and gentler version of Harvey Mansfield's provocative ">">http://www.opinionjournal.com/federation/feature/?id=110010014"> strong executive. There's one that fires students!

Thanks for the Mansfield article Steve Thomas, I think it differs subtantially from what Berns is saying. Berns might assume that the questions Dr. Knippenburg asks are answerable, while I don't think Mansfield would agree.

How wonderfully incoherent.

Americans are a republican people but they admire their great presidents. Those great presidents--I dare not give a complete list--are not only those who excelled in the emergency of war but those, like Washington, Lincoln and Franklin Roosevelt, who also deliberately planned and executed enterprises for shaping or reshaping the entire politics of their country.

This admiration for presidents extends beyond politics into society, in which Americans, as republicans, tolerate, and appreciate, an amazing amount of one-man rule. The CEO (chief executive officer) is found at the summit of every corporation including universities. I suspect that appreciation for private executives in democratic society was taught by the success of the Constitution's invention of a strong executive in republican politics.

Mansfield has a peculiar notion of republicanism. I'm aware of no definition under which a "great man" may reshape the entire politics of a nation. Nor is a CEO a sensible analogy to a President. Not unless you think that we are all employees in America Corp and that our continued "employment" is at the Presidents sufference.

This is not republicanism of any stripe. It is disturbingly close to a apology for dictatorship. Thomas Carlyle would approve, I'm sure.

John M - I think Mansfield would start with this: the American republic is a new kind. We most naturally think of John Adams' republic: a government of laws not of men. Or of Madison: representation resting on the "great body of the people." But Madison (in Fed. 51) introduces the need for "auxiliary precautions" reinforcing the most obvious republican institution, the House. The executive has executive powers - and Mansfield (in Taming the Prince) traces them not only to Locke but also to Machiavelli. The American executive is Hamiltonian, because Hamilton gave the defense not only in the Federalist but also in his "Pacificus" ">">http://www.teachingamericanhistory.org/library/index.asp?document=429"> defense of Washington's Neutrality Proclamation, but according to Mansfield its roots lie deeper. The Founders understood, in effect, that republics rest on the rule of law and popular consent, but that the executive must take an oath that no one else takes.

That's remarkably fuzzy, Steve Thomas. Does the President have the authority to declare martial law as he sees fit? Yes or no.

republics rest on the rule of law and popular consent, but that the executive must take an oath that no one else takes

If you have to resort to this sort of opaque evasion it probably means that your argument will not withstand close scrutiny.

The executive has executive powers - and Mansfield (in Taming the Prince) traces them not only to Locke but also to Machiavelli.

I repeat, this obsession with Locke is highly peculiar. He is not the philosophcal founder of America. His scheme of thought led directly to the French Revolution, and to todays "liberalism". He cannot be remade into a defender of republican government.

Go to Mansfield. I was just paraphrasing. Your issues are with him.

Gee, another 'essay' complete with the old 'Bush is Lincoln' connection. John Yoo eat your heart out. If a truth commission came of this, Cheney's book tour would come to an end, but Liz's free air time on the right-wing MSM would continue.

To say that a republic can't turn to great men in a crisis is to say that the Roman republic was not a republic--an absurd conclusion. The American republic does not have a dictator, but it does have a tradition of robust Presidents during wars.

ren - I take your amusing point. Lincoln and G. W. Bush were both American presidents, with executive powers. That doesn't make Bush into Lincoln - first because they in fact proceeded quite differently, as Goldsmith has stressed; and second, logically, those powers can be exercised well or badly.

Of course, some people deny presidents have those powers. I've seen a number of versions, including these two. Some would say, if we recognize such powers, then every president can be a tyrant like Lincoln. Others would confine executive powers to law enforcement: ...take care that the laws be faithfully executed.

I better chime in since martial law was brought up. Readiness Excercise 1984, Northcom having troops at home for civil unrest(began last year), National Security and Homeland Security Presidential Directive. There are just three examples that show it can happen and is planned for. Rather they "can" do it in the constitutional sense is pretty sketchy and I would tend to say no because most of the planning includes the phrase suspending of the constitution. The argument would have to be based on war powers then we just have to make sure that Americans can be considered enemy combatants and get by posse comitatus somehow which forbid troops from being used for policing.

I don't know what would be gained by doing this though, the one party system keeps power secure enough as it is. If(or when) things get worse and there is legitimate threat of an uprising mabye a disaster is used to make a preemptive strike against those dangerous militia right wing types who frequently cite the constitution and the declaration. Don't get caught with your pocket constitutions DHS knows you idolize those terrorist founders.

To say that a republic can't turn to great men in a crisis is to say that the Roman republic was not a republic--an absurd conclusion.

But nobody is discussing a republic "turning to great men in a crisis". What is being alleged is that these men have the right, if not the duty, to remake the polity as they see fit.

I await any comment on that claim.

I think that is why politicians have used democracy in thier rhetoric for years when even public schools teach that we don't live in a democracy. NO. remaking the polity as they see fit is like the sort of thing the people don't want, have never wanted, and it never works. At one time it was called communist infiltration. Our politicans are lining up against our own laws, who should the people be loyal to? Who is the State? It would take some extreme mental gymnastics to say that the supreme law of the land(the constitution) is the enemy of the state, but I think that is what is going on.

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