Strengthening Constitutional Self-Government

No Left Turns

Kleinerman on necessity and the Constitution

Ben Kleinerman, whose work I discussed here, was kind enough to provide us with an extended reflection on how to apply the Civil War analogy to our current affairs. His piece is replete with interesting observations about necessity and the limits of law, and thus can productively be read in conjunction with Harvey C. Mansfield, Jr.’s essay, discussed here.

A taste:

[W]e must seek a constitutional framework within the new ordinary politics, characterized by a permanent threat from asymmetric warfare, that preserves the executive discretionary powers necessary to secure us from such threats without either giving up too many rights for the sake of such security or allowing the discretionary activity to descend into a legal right to take any actions the president chooses. And I submit that we can find such a constitutional framework precisely by thinking of our Constitution as permitting a discretionary executive branch, watched over by a Congress that asks the question not whether the President has violated the law but whether the President has acted as necessity demands and no further. Such a framework empowers the President to take actions necessary for our preservation while preventing the abuse of such powers. It also prevents the legalization of such powers, a legalization with which we would not be comfortable were it not for the threat to our security.

Read the whole thing. 

Discussions - 9 Comments

I skimmed the article. It seemed to focus mostly on policy and prudence, and not very much on the actual text of the constitution, nor did it discuss what the founders’ thought the constitutional limits of the federal government were/are. This would seem to be more of a "living constitution" approach than a textualist, or original intent approach.

Furthermore, individuals seriously committed to the founding ideas about the structure of the federal government cannot appeal to Lincoln. Lincoln does not equal the founders in this area. After Lincoln we had a new constitutiona, per the 14th amendment. America was no longer a bunch of states held together in a somewhat lose confederation (Ohio and Michigan fought over Toledo in the 1830s...think about that!), rather it was more like a nation subdivided into different political districts for ease of administration. (this is not precise, but it represents the change in the spirit of the regime).

People who want to remain true to the founding must remember that the constitution gives Congress war-making powers, and all powers necessary and proper in relation to war-making, and powers relating to process and administration of justice. There is nothing unconstitutional in exercising these powers, rather it seems the will to exercise these powers is lacking, and some people want to compensate for that lack of will by giving the executive more power.

Mr. Sparks,

I agree with you that the Constitution gives "...Congress war-making powers...administration of justice..." This is indeed correct. However, in the current situation where there is a clear and present threat to the Union, and Congress is unable or unwilling to deal with it, how is it not the responsibility of the Executive to act? I agree that enhancing the powers of the executive too much, such that it unbalances the tri-partite system is unwise, but is it not equally unwise to allow apathy, weakness, and political infighting to paralyze US action? In our current situation, we have a Congress that would rather navel-gaze than deal with the threat to our nation. It therefore behooves someone with the appropriate authority, in this case the Executive branch, to act. Nowm I am neither a Constitutional scholar, nor an attorney, so my comments might very well show my ignorance. However, as a soldier, I feel the need to act in some meaningful way, rather than simply continue to babble in no meaningful way while another 9-11 gets under way.


Lincoln’s civil war activities antedate the 14th Amendment and, in any event, the pre-CW view of the union isn’t quite as "confederal" as you’d have it. If you want to begin thinking about the scope of the executive power, consider the difference in the constitutional grants of power to the two political branches:

Art. I: "All legislative powers herein granted...."

Art. II: "The executive power...."

The question, in general, is whether Congress’ lawmaking powers are adequate to regulate the President’s exercise of the "Commander-in-Chief" power. Kleinerman’s argument isn’t a "living Constitution" argument, but rather explores the possibilities inherent in an executive who must be flexible enough to meet every possible threat (read or re-read Alexander Hamilton in Federalist #23).

One big problem not everyone is going to agree on a standard for necessity. As Mansfield says: "But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law." Basically the president has to reach down and grab his cojones and do what he thinks is right. I can’t deny that Bush did this, so I give him credit.

I am not so sure that the biggest threat from and to our government comes in the form of executive discretion. In a very palpable sense I think we are probably suffering more as americans from the inflexibility of the rule of law. Even supposing for a second that "Power is more surely in the hands of many when exercised in the form of law--"standing rules," this does not mean that this power is not often times an abuse upon the rights of the minority.

For myself I believe that a man must follow his heart and mind regardless of the law if need be.

Only in a minimalist state would the people have more to fear from executive perogative than from the "rule of law". We don’t live in a minimalist state, we live in something of a nanny state, therefore there is often times less of a usefull distinction between "standing rules" and "arbitrary decree" and we have more to fear from our laws than from the executive.

This is a case of the president exercising the infamous maxim that "Necessity knows no law". We all take advantage of it, and many times more justly so than the law should allow.

Taking heed of the difficulty inherent in defining necessity we should look with new light on the words of Justice Kennedy: "At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."

It isn’t about giving up rights for the sake of security, anymore than it is about giving up security for the sake of rights, no such trade off is possible. Rights are about the ability to adjudicate between security (a physical good) and whatever one gives up for this security.

For example, Christopher Whitaker might back me up on this: The army is issuing us extra sappi plates for the sides, but while these additional sappi plates might provide more security, they might cost us in mobility, judging from some of the noise in stars and stripes from the grunts, my guess is that some CO’s will exercise liberty in making a judgement about when they are worth it, most likely during the writting up of mission specific risk assessments, barring this, or even perhaps in spite it NCO’s will provide their own judgement in the field.

Going to the Doctor’s office is probably the best concrete example I can think of where you give up liberty for safety. When you go to the doctor for help you suspend your own judgement on what your condition is and allow him to prescribe to you medicine. However going to the doctor is a choice, in other words you choose to go because you believe that he knows better than you do how to get better. If you didn’t believe this then you wouldn’t go. You aren’t unfree because you sometimes you suspend your judgement in order to achieve more safety...

There is no concrete example that can be given where a man can give up his liberty in order to gain safety.

Give me Liberty or give me death.

Christopher Whitaker:

The constitution created a government of limited powers, and dispersed these powers in a certain way. There is no constitutional clause that states "In really, really bad times when Congress will not act the executive can do a, b, and c." If there is no clause then there is no authority to perform such an act. If Congress cannot act because of constitutional limitation, then an amendment is in order (we have not had one for a long time, we might as well have one now). If Congress cannot act because of lack of political will, then it is certainly the citizens’ responsibility to make them act. Giving undefined power to the executive is the most dangerous of the three options (amendment, force political action, and give power to the executive) because this power is undefined, and it will probably not be given back once necessity no longer demands it.

Joe Knippenberg:

I think we completely disagree about the nature of the union before the civil war. Here are some examples that support my position.

1. Before the civil war action by the US was called "The United States Are (plural)," after it was called "The United States is (singular)". This is a common example.

2. Both Madison and Jefferson thought that States had some role in ratifying the constitution, like it was a compact, distinguished from Lincoln’s (and Webster’s) belief that the people ratified the constitution through States (see above post--the States were merely political subdivisions for ease of administration).

3. During the War of 1812, New York State milita refused to help federal troops in Canada because they felt they had no authority outside of New York State, and I believe they refused federal orders to go outside of the state, stating that New York was their proper commander.

4. New England thought about succession during the War of 1812.

5. The southern States did withdraw from the union.

6. During the civil war, armies, troops, etc. were divided per state, like the so and so of Ohio. Compare this to WW2 where it was merely a national army.

7. The precivil war union vs. the post civil war one is not an either/or sort of thing, but you cannot seriously maintain that the civil war did not result in a profound consolidation of national power and a conception of America as a nation, rather than a collection of states bound together through the constitution. Remember that Lee refused to fight against his country--Virginia.

As far as perogative, I think impeachment is an adequete check on it. Presidents can break laws and the like, and if they break them for a good reason they will not be impeached, if for a nonjustifiable reason then they should be impeached. One should not create undefined, mystic powers for the Presidency devoid from any meaningful law. However, it would be best for Congress to create laws, and then let federal agencies (I’d let the executive do something) figure out the details.

I’d take Steve’s concerns one step further. However much one might think that judges shouldn’t concern themselves with a "living constitution" (I disagree with Joseph here, by the way), we do have one outside of the courts. Any discussion of Article II and executive powers risks irrelevance if you don’t consider the institutional changes that have occured over the past two centuries, some of them finding expression in constitutional text, others, not.

The modern president is all but popularly elected. The electoral college has basically failed. The president is the leader of his party, one of which makes its special competence in national security a perennial electoral issue; he is the most important national political figure, and he can take advantages of modern communications technology in ways undreamt of in 1787. He also presides over a vast federal bureaucracy, and he is commander in chief not of a small defensive army in a sea of superpowers, but of the largest army the world has ever seen, in a sea of smaller powers and nonstate actors that can only act asymmetrically. He presides over an immense national security apparatus. And he sets the legislative agenda for congress, at least when his party is in control.

The question is whether that executive should be able to assert unlimited power to break duly enacted law on a theory of inherent powers derived from the vesting clause and other parts of Article II. That’s a very different question from the one asked in Federalist 23.

Our recent historical experience is sufficient here. Presidential power of the sort that Bush claims will be abused, especially if it is undertaken in secret, without serious congressional oversight (again required by statute, at least according to CRS). That was the point of FISA. It’s still a valid concern.

Ben Klienerman’s article is the best one I have read.

I didn’t originally read it because of Steve’s comments and the taste of it offered by Dr. Knippenburg.

In my opinion the most crucial sentence to think about: "In other words, rather than merely seeing discretionary power as containing the potential for unlimited government (which if left unwatched it most certainly does), we should also see that discretionary power can paradoxically limit the powers of government precisely because it remains discretionary"

Is constitutionalism a religion?

What happens if you have a president with a moral agenda far greater than the limited ends of a constitutional government?Is constitutionalism itself a moral agenda?

I don’t know that I can ever agree with Lincoln type examples. Do the moralists of either party today agree with Lincoln type sentiments? Lincoln said that he didn’t agree with slavery, that if anything was wrong slavery was wrong. But he did not believe that the presidency granted him the power to act upon that "feeling".

Yet no political figure today would relegate his moral views to being mere judgement and feeling. And very few supporters of a president from philosophers down to the everyman would argue against a president doing what they themselves consider to be morally correct. If the people should neither ask nor allow a president to fulfill either his or their moral wishes, then they should have to believe not only that just because they believe something to be true does not make it so, but also that they are only capable of believing something to be true, and incapable of acertaining its actual Truth.

For as soon as they would be sure of themselves morally, they would have a duty that would be higher than any official duty, or so it seems...

In response to Dr. Lewis’ last post: Lincoln would say that there’s something independently moral about constitutionalism itself. That is, he draws the distinction between his moral beliefs and his constitutional duty not because he thinks those moral beliefs "mere" judgments and feelings and thus unworthy of tearing down a constitution for but because he thinks there’s a moral good inherent in constitutionalism itself which should not be simply sacrificed for the sake of other moral goods.
In other words, his position arises not from moral relativism, as I thought implied by your post, but by a more nuanced understanding of morality than we typically find in our present politics--a prudential morality that remains aware of a number of competing moral claims that must be balanced and adjudicated in one’s actions.

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