The Law Does Not Apply

May 2, 2007 at 2:02 pm | Posted in American politics, Bush Administration, conservatives, freedom, George W Bush, King George, neo-conservatives, Republicans, secret combinations, Thoughts | 4 Comments


Following my last post, here is yet another conservative, a Harvard professor arguing that the president is above the law, and that the “law does not apply” in some circumstances. Glenn Greenwald has the best analysis of the article in question, from the Wall Street Journal. Harvey Mansfield writes:

The best source of energy turns out to be the same as the best source of reason–one man. One man, or, to use Machiavelli’s expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli’s prince, the man whom in apparently unguarded moments he called a tyrant. . .

The president takes an oath “to execute the Office of President” of which only one function is to “take care that the laws be faithfully executed.” In addition, he is commander-in-chief of the military, makes treaties (with the Senate), and receives ambassadors. He has the power of pardon, a power with more than a whiff of prerogative for the sake of a public good that cannot be achieved, indeed that is endangered, by executing the laws. . . .

In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong.

Truly this is not something America was founded on. In fact, if I recall my Revolutionary War history correct, we fought AGAINST “one man rule.” Er….

As Greenwald puts it:

But more so, one would hope that no response is really necessary, since most Americans — outside of the authoritarian cult that has followed George W. Bush as Infallible War Leader — instinctively understand that America does not recognize such a thing as a political official with the power of “one-man rule” that overrides the rule of law. That we are a nation of laws, not men, is so basic to our political identity that it should need no defense.

And for those with any lingering doubts about how repugnant Mansfield’s vision is to the defining American political principle, I would simply turn the floor over to the great American revolutionary Thomas Paine (.pdf), writing in Common Sense:

But where says some is the king of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

The point here is not to spend much time arguing that Mansfield’s authoritarian cravings are repugnant to our political traditions. The real point is that Mansfield’s mindset is the mindset of the Bush movement, of the right-wing extremists who have taken over the Republican Party and governed our country completely outside of the rule of law for the last six years. Mansfield makes these arguments more honestly and more explicitly, but there is nothing unusual or uncommon about him. He is simply expounding the belief in tyrannical lawlessness on which the Bush movement (soon to be led by someone else, but otherwise unchanged) is fundamentally based.

This is why he is published in The Weekly Standard and The Wall St. Journal — the two most influential organs for so-called “conservative” political thought. All sorts of the most political influential people in our country — from Dick Cheney to Richard Posner to John Yoo and The Weekly Standard — believe and have argued for exactly this vision of government. They literally do not believe in our constitutional framework and our most defining political values. They have declared a literally endless War which, they claim, not only justifies but compels the vesting of unlimited power in the President — “unlimited” by Congress, the courts, American public opinion and the rule of law.

Let me write those words of Thomas Paine again: in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other. Just so it is clear what conservative thinkers are proposing: absolute governments where the king is the law. However, in free countries, the law is the king. Even the president, the “one man” is subject to that law, WITHOUT EXCEPTION.

Conservatives ought to be asking themselves why they think this way, or why they provide a platform for this kind of thought to be spewed forth these days. Do most conservatives really believe this? That the president is above the law? What ever happened to believing in what the Founding Fathers taught? Isn’t it conservatives that keep attempting to hark back to those “better times?” Really, when was the last time someone like Mr. Mansfield read Thomas Paine? Thomas Jefferson? John Adams? Is this what kind of government they intended to create? Please! But this is the kind of government conservative thinkers are proposing now. Conservatives ought to think carefully about this. Do they really want to be known as the ideology of the tyranny?


Andrew Sullivan shows some examples of conservatives threatening not to participate.

If, as seems likely, the Democrats win the next election and pursue a different strategy in the war on terror, will the conservative movement support a commander-in-chief under such circumstances? Victor Davis Hanson makes a veiled threat here:

All these Democrats now, for three or four years, have not just opposed George Bush, and not just opposed neoconservative idealism, but they’ve demonized it to such a degree that they’ve almost made Bush the equivalent of the enemy. And Bush has a lot of supporters in and out of the military. So now they think that they’re elected, people like yourself and I are going to jump back up and say you know what? They’re the president, we’re going to support them at every opportunity. We probably will, but there’s going to be a lot of us who won’t, because they’re going to say they nitpicked, they were counterproductive, they wanted the people in Iraq fighting us to win. It’s almost as if you burn down the house, and then you want to reoccupy it, or if you destroy the system of bipartisan dialogue, and then suddenly when you’re president, you say let’s restore bipartisan dialogue. But they’ve so demonized people on the conservative side of the aisle, that it’s going to be very hard for them to create unity.

The insinuation – “Bush has a lot of supporters in and out of the military” – is repellent. But it’s telling. If the pro-Bush right loses this debate over how to fight this war, do not expect them to be gracious losers. They could be even more vicious against a future Democratic president at war than the anti-war left has been to Bush.

Victor Davis Hanson is of course a Hugh Hewitt Townhall man…


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  1. About the only conclusion that I can come to is that Bush and Co. have been so persuasive (with some people) in convincing them that terrorists really do intend on coming to America, skulking around in the dead of night and slashing our throats while we sleep that they are more than happy to claim Bush as their king and give up entirely on the law. There was a woman who called in to the Stephanie Miller show this morning who tried to claim some kind of tie between 9/11 and the war in Iraq, and when they tried to set her straight and told her that even Bush has acknowledged that there is no connection, she stated that she didn’t believe it. There are too many of these people around who are apparently in great fear for their lives because the Bush administration has sold them a load of horse manure.

    And lawlessness would seem to be the viewpoint from within the Bush administration as well: the Attorney General seems to be quite content with the idea that he can grant himself authority to grant his authority to others, without citing any Presidential authority for having done so. The current administration sees themselves as being the law instead of being subject to the law. They seem to think that they can just make everything up as they go along.

    It’s way past time for Congress to start making up a few things, too (like articles of impeachment).

  2. If it were just Harry Reid, it would be too much, but the ineptitude in the Democratic ‘leadership’ is downright scary.

    The Democrats are aligning themselves with elements of Islamo-fascism for their own political purposes. They want the White House so bad in ’08 that they are willing to jeopardize the safety and security of the U.S. to achieve their ends.

    Reid’s comments are only the tip of the iceberg. The messages sent to terrorists by the Democratic Party via Syria and the U.S. media are a white flag, a weak, cowering America and a willingness to strike a deal that will put the Dems in the Oval Office

  3. Mansfield relies heavily on the Federalist papers in his analysis. The problem with this, and any other attempt at divining the Framers intent, is that “The Framers” were not a monolith. The Federalist papers represented the views of three guys — Madison, Hamilton, and Jay. While important, they cannot convey the complex give-and-take that went into the creation of the Constitution. Ambiguity was built in purposefully. So, to say that “the Framers” wanted this or that is disingenuous.

    What I find most disturbing from Mansfield (beyond the fact that he cites to Machiavelli), though, is the notion that “What works for quiet times is not appropriate in stormy times.” I think that this has been the great fallacy of the Bush administration. Certainly Bush hasn’t been the first to make this claim; most Executive’s attempt it at some point. The problem is two-fold:
    1. The Constitution just doesn’t say so.
    2. Who gets to say when we’re in a “stormy time.”
    Sure, the President is Commander-in-Chief, but Congress gets to decide when we’re at war. The President gets to negotiate treaties, but Congress has to ratify them and if they don’t like the treaty the President has negotiated, too bad for the President. And on and on. There simply is no room to make the legitmate argument that the President is somehow divinely invested with unique power.

    I thought the rule of law was a good thing and the fact that Mansfield is arguing in favor of the “adversary” of the rule of law is disturbing.

  4. I think that Mansfield was saying that the president shouldn’t be restricted to the whim of Congress. If the courts can find the law too restrictive to suit their purposes, and in the name of “justice” will rewrite the Constitution without asking us what we think, why do you bristle at the notion that the President can’t act a little more authoritatively when necessary. At least he is still held in check. In fact, there are three forces that will hold him accountable for any such actions that result in disastrous consequences: Congress, the Supreme Court, and the American people. Don’t bristle too hard at this notion, either, as many of your beloved prezes have gone much further than this man has. It happens. Quit looking for reasons to hate the guy.

    About your comments regarding Thomas Payne, I’m sure you quickly got past his chastisement of the father standing in the doorway with his little ones all around him, refusing to fight, crying “Peace in my time.”

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