On Friday, Justin Raimondo called attention to an essay by Harvey Mansfield published in the Wall Street Journal on Wednesday.[1]  --  Entitled "The Case for the Strong Executive," the essay makes, as Raimondo points out, "the case for an executive dictatorship."  --  Mansfield's is a "world of perfect 'freedom,' where 'a free government should show its respect for freedom even when it has to take it away,'" Raimondo writes.  --  A Libertarian, he cites an interesting passage from a 1944 book by one of Franklin Delano Roosevelt's ideological opponents, John T. Flynn, who predicted that "When fascism comes it will not be in the form of an anti-American movement or pro-Hitler bund, practicing disloyalty. . . . It will . . . take some genuinely indigenous shape and color."  --  Flynn defined "fascism" as "a system of social organization in which the political state is a dictatorship supported by a political élite and in which the economic society is an autarchic [i.e. autocratic] capitalism, enclosed and planned, in which the government assumes responsibility for creating adequate purchasing power through the instrumentality of national debt and in which militarism is adopted as a great economic project for creating work as well as a great romantic project in the service of the imperialist state."  --  Raimondo comments:  "What a near-perfect anticipation of our present state!  He must have seen it in a dream.  As an unpopular war reaches its horrific crescendo, and the President upholds his 'right' to wage it in defiance of Congress and the popular will, the theoreticians of the new fascism — what Lew Rockwell trenchantly calls 'red-state fascism' — are given ample space on the editorial page of the War Street Journal to make their case.  Are the masses growing increasingly discontented with the 'wisdom' of their rulers . . . ? Well then, let us endow the President with kingly powers, so he can disregard the 'temporary delusions' of the people, as Mansfield puts it — such as, for example, the 'delusion' that we cannot win the war in Iraq, and shouldn't have gone there in the first place — and let our glorious Leader and Commander-in-chief get on with the job.  This, Mansfield avers, is true 'greatness.'"  --  Raimondo (who, as usual, generously provides dozens of links) warns that more and more so-called "conservatives" are calling for authoritarian government in the United States:  "Today we have an ostensible 'conservative,' Thomas Sowell, pining for a military coup in the pages of National Review [NOTE:  On May 1, Sowell wrote:  "When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup." —J.O.M.], and, in the same magazine, Col. 'Buzz' Patterson, author of War Crimes: The Left's Campaign to Destroy Our Military and Lose the War on Terror, opining that the Democratic party, and especially its congressional branch, is legally guilty of 'treason,' and ought to be punished for this crime forthwith.  --  The Wall Street Journal essay by Mansfield, who is William R. Kenan Professor of Government at Harvard University, is reproduced below.[2] ... 


1.

AMERICA'S COMING DICTATORSHIP
By Justin Raimondo

** The theory and practice of oligarchical "conservatism" **

Antiwar.com
May 4, 2007

http://www.antiwar.com/justin?articleid=10911

The Iraq war and the inquiry into its origins has provoked interest in a number of subjects formerly considered obscure, the discussion of which was once limited to the rarified aeries of academia and specialty journals. Some examples are neoconservatism, just war theory, and, most surprisingly, the theories of Leo Strauss, the philosophical avatar of a cynical Machiavellianism that promotes the idea of the "noble lie." As the disaster in Iraq unfolded, subjects once considered abstruse were introduced into the pages of the popular press, so that, at one point, we were treated to a long explanation of the doctrines of Strauss in the pages of the New York Times.

As Jeet Heer put it in the Boston Globe,

"Odd as this may sound, we live in a world increasingly shaped by Leo Strauss, a controversial philosopher who died in 1973. Although generally unknown to the wider population, Strauss has been one of the two or three most important intellectual influences on the conservative worldview now ascendant in George W. Bush's Washington. Eager to get the lowdown on White House thinking, editors at the New York Times and Le Monde have had journalists pore over Strauss's work and trace his disciples' affiliations. The New Yorker has even found a contingent of Straussians doing intelligence work for the Pentagon."

This sudden interest was due to the unusual number of Straussians who had found their way into close proximity to the centers of power in Washington -- an extraordinary number of Strauss's students (or students of his leading followers) were employed in and around the Bush administration, particularly at key points in the national security bureaucracy, as William Pfaff pointed out, including then -- "Deputy Defense Secretary Paul Wolfowitz; Abram Shulsky of the Pentagon's Office of Special Plans, Richard Perle of the Pentagon advisory board, Elliott Abrams of the National Security Council, and the writers Robert Kagan and William Kristol."

One can easily see how the concept of the "noble lie" fits neatly into the neoconservative scheme of things, and the run-up to the Iraq war is surely a textbook example of the Straussian method in action: an enlightened elite deceives the public into an action that must be taken, after all, for their own good. In this case, we were lied into invading and occupying Iraq, for reasons that had nothing to do with "weapons of mass destruction" and Saddam's alleged links to al Qaeda and the 9/11 terrorist attacks, both of which the promulgators knew to be lies, and yet reiterated ceaselessly.

Since we are now permanently at war, the ideal atmosphere for a Straussian (or any authoritarian) to theorize in, this is the time for the War Party to come out in the open with its theory of government, which, in normal times, is dressed up as "peace through strength," and now comes out of the closet as "peace through dictatorship." Aside from rationalizing a regime based on lies, the Straussian method, and philosophy, is useful in other ways. The prominent Straussian Harvey Mansfield, a professor of government at Harvard, demonstrates his usefulness as a promoter of the regime's authority, and specifically the supremacy of the executive branch of government in wartime. Mansfield makes "The Case for the Strong Executive" in the pages of the *Wall Street Journal*, and it is an argument that constitutes a vital part of the intellectual blueprint for the dictatorship I wrote about the other day.

Mansfield starts out with a paean to the incorrect and unfortunately near-universal conception of the Constitution as a "flexible" document, and the resulting reference to "the living Constitution" is one of those clichés that no one ever thinks to challenge -- except when it's too late. When the tanks are already rolling through the streets, that is . . .

Look: there is nothing "flexible" about the Constitution. It means precisely what it says, and its language is not in any way obscure or complex. Furthermore, I would note that every time someone is about to take away our liberties, or in some way circumvent the plain intent of the Founders, they inevitably preface it with odes to the Constitution's "flexibility." Balderdash! The Founders meant what they said, and said what they meant in plain and simple English, language that even a Harvard professor can understand. Yet, examining Mansfield's case for an executive dictatorship -- and that is surely the intent of his piece -- we see at work the old Straussian method of "reinterpreting" an author's clear intent to mean its exact opposite.

Now it would seem that the Founders, being revolutionaries, and even libertarians of a sort (except for Hamilton), were intent on setting up a republic of freemen, that is, a form of government that was constitutionally limited and certainly had nothing to do with the royalism against which they had recently rebelled. Ah, but a Straussian can find "hidden" meanings that the rest of us are blind to, and Mansfield detects a built-in contradiction, a deliberate tension between "one-man rule" and the republican spirit that imbues the Constitution with -- yes, an authoritarian streak:

"Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by Aristotle in the well-known passage in his *Politics* where he considers ‘whether it is more advantageous to be ruled by the best man or the best laws.'

"The other defect is that the law does not know how to make itself obeyed. . . . There must be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason. It is a delusion to believe that governments can have energy without ever resorting to the use of force.

"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."

This is the theme of Mansfield's book, Taming The Prince, in which he asserts that the modern idea of the executive is merely the old Aristotelian portrait of a royal personage who exemplifies the right of the strong to rule over the weak. In our own time, we are unable to directly acknowledge this ancient legacy and so we mask it in the mythology of the Constitution. We cloak the royalist reality in the raiment of republicanism, and promulgate the myth that the executive is somehow the servant of the people. "The American Founders," Mansfield avers, had a different idea, because they "heeded both criticisms of the rule of law when they created the presidency. The president would be the source of energy in government, that is, in the administration of government, energy being a neutral term that might include Aristotle's discretionary virtue and Machiavelli's tyranny -- in which only partisans could discern the difference."

Tyranny, discretionary virtue -- whatever. It's all a matter of partisan, i.e. totally subjective, opinion. In any case, the cult of Strauss is built around the cult of the Leader, or the "wise man," as Mansfield puts it, the uno solo who sees beyond what ordinary citizens can perceive. Sure, he's driven by a relentless drive to achieve and maintain his own power, but this very ruthlessness is what gives a republic its "energy" and the ability to survive its own inherent fragility.

"A free government" avers Mansfield, "should show its respect for freedom even when it has to take it away." This little aphorism, worthy of being carved in stone on the gravestone of the American Republic, just about sums up the tone and content of Mansfield's panegyric to the "greatness" of the presidential office, and its necessary "expansion" in time of war -- which means, in the neocon lexicon, from now on.

Rights are not inherent, in the Mansfieldian-Straussian universe, but purely conditional, and our condition today is one that cannot afford such luxuries. According to Mansfield:

"In our time . . . an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable. This means that the Constitution has the status of what was called in the 17th-century natural public law; it is an order as natural as the state of nature from which it emerges. In this view liberty has just one set of laws and institutions that must be kept inviolate, lest it be lost.

"But Locke was a wiser liberal. His institutions were ‘constituted,' less by creation than by modification of existing institutions in England, but not deduced as invariable consequences of disorder in the state of nature. He retained the difference, and so did the Americans, between natural liberties, inalienable but insecure, and civil liberties, more secure but changeable. Because civil liberties are subject to circumstances, a free constitution needs an institution responsive to circumstances, an executive able to be strong when necessary."

I won't dispute Mansfield's reinterpretation of the Lockean position on natural rights, except that it resembles a Bizarro Locke, inverting the philosopher's defense of natural rights and limited government, and somehow managing to turn it into the manifesto of a super-centralism that the 17th-century English liberal would recoil from in horror. This is typical of the Straussian method.

Leaving Locke entirely out of it, however, let us look at the Mansfieldian theory of "civil liberties" as forever "subject to circumstances" -- just like our "flexible" Constitution, and, of course, the "secure but changeable" Bill of Rights. In the Bizarro-Mansfieldian world of perfect "freedom," where "a free government should show its respect for freedom even when it has to take it away," there is no right to free speech, no right to assemble, nor, really, any rights at all, including the right to hold property: all of these are merely temporary privileges, and are particularly ethereal in wartime. Inalienable rights? Not if the President says otherwise.

This is nothing less than a rationalization for a dictatorship. It is authoritarianism dressed up in seemingly "American"-sounding verbiage, a prescription for fascism just as surely as the rantings of Alfred Rosenberg or the polemics of Robert Brassillach. As John T. Flynn, the liberal-turned-‘Old Right' opponent of the New Deal put it:

"When fascism comes it will not be in the form of an anti-American movement or pro-Hitler bund, practicing disloyalty. Nor will it come in the form of a crusade against war. It will appear rather in the luminous robes of flaming patriotism; it will take some genuinely indigenous shape and color, and it will spread only because its leaders, who are not yet visible, will know how to locate the great springs of public opinion and desire and the streams of thought that flow from them and will know how to attract to their banners leaders who can command the support of the controlling minorities in American public life. The danger lies not so much in the would-be führers who may arise, but in the presence in our midst of certain deeply running currents of hope and appetite and opinion. The war upon fascism must be begun there."

Flynn, one of FDR's bitterest opponents, wrote these words in *As We Go Marching*, his indictment of a postwar America that had fought national socialism -- and was beginning to fight Soviet totalitarianism as the book was published -- but, he feared, would lose the fight against incipient authoritarianism on the home front. Flynn defined fascism in a way that was congruent with the rising Welfare-Warfare State, founded on the principle of Big Government at home and militarism abroad. "First let us state our definition of fascism," he writes: "It is, put briefly, a system of social organization in which the political state is a dictatorship supported by a political élite and in which the economic society is an autarchic capitalism, enclosed and planned, in which the government assumes responsibility for creating adequate purchasing power through the instrumentality of national debt and in which militarism is adopted as a great economic project for creating work as well as a great romantic project in the service of the imperialist state."

What a near-perfect anticipation of our present state! He must have seen it in a dream. As an unpopular war reaches its horrific crescendo, and the President upholds his "right" to wage it in defiance of Congress and the popular will, the theoreticians of the new fascism -- what Lew Rockwell trenchantly calls "red-state fascism" -- are given ample space on the editorial page of the *War Street Journal* to make their case. Are the masses growing increasingly discontented with the "wisdom" of their rulers, who are, after all, by definition, their betters? Well then, let us endow the President with kingly powers, so he can disregard the "temporary delusions" of the people, as Mansfield puts it -- such as, for example, the "delusion" that we cannot win the war in Iraq, and shouldn't have gone there in the first place -- and let our glorious Leader and Commander-in-chief get on with the job. This, Mansfield avers, is true "greatness." Naturally he invokes the spirit of FDR, among others (Lincoln, the great "emancipator," who jailed his opponents and closed down newspapers for "seditious" utterances, also gets Mansfield's strong endorsement).

What is odd is that both Flynn and Mansfield are considered conservatives, men of the Right -- and yet their political and moral stances could not be more adversarial. What kind of "conservatism" is it that extols the Leader Principle, disdains the Constitution, and the concept of "rights" as inalienable, and openly calls for authoritarian rule in case of "emergencies"?

Today we have an ostensible "conservative," Thomas Sowell, pining for a military coup in the pages of National Review, and, in the same magazine, Col. "Buzz" Patterson, author of War Crimes: The Left's Campaign to Destroy Our Military and Lose the War on Terror, opining that the Democratic party, and especially its congressional branch, is legally guilty of "treason," and ought to be punished for this crime forthwith. Mansfield articulates the theory, while Sowell and Patterson -- along with the Anne Coulters and David Horowitzes of the neoconized "conservative" movement -- exemplify the practical politics of red-state fascism. The American Right has come a long way from The Conscience of a Conservative.

The legislative basis of the new authoritarianism -- the "Patriot Act," the Military Commissions Act [.pdf], the growth of the national surveillance state -- is underpinned by the Mansfieldian theory of presidential supremacy and the concept of the "unitary presidency" -- in short, the Leader Principle, which is the foundation stone of the modern fascist edifice.

Centered around imperialism and the push to expand its system over all or most of the earth, this "energetic" ideology employs the administrative and economic centralism that is the hallmark of modern American "liberalism," and the militarism and imperialism that is the hallmark of the modern "conservative," in a perfect synthesis of "left" and "right" that satisfies everyone and leaves the dissidents in the "far left" and "far right" margins. This is how our modern fascists can, with some justification, call themselves "centrists," and even "moderates."

In the Bizarro World we seem to have fallen into, post-9/11 -- when a rip in the space-time continuum, caused by the explosive power of the planes' impact on the World Trade Center, caused us to slip into another dimension -- who will dispute their self-characterization? After all, in Bizarro World, up is down, truth is a lie, and "democracy" means rule by a self-appointed elite. A Straussian is perfectly comfortable with this universal inversion: as for the rest of us, we'll just have to get used to it.

--Justin Raimondo is the editorial director of Antiwar.com. He is the author of An Enemy of the State: The Life of Murray N. Rothbard (Prometheus Books, 2000). He is also the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement (with an Introduction by Patrick J. Buchanan), (Center for Libertarian Studies, 1993), and Into the Bosnian Quagmire: The Case Against U.S. Intervention in the Balkans (1996). -- He is a contributing editor for the American Conservative, a Senior Fellow at the Randolph Bourne Institute, and an Adjunct Scholar with the Ludwig von Mises Institute, and writes frequently for Chronicles: A Magazine of American Culture.

2.

THE CASE FOR THE STRONG EXECUTIVE
By Harvey C. Mansfield

** Under some circumstances, the rule of law must yield to the need for energy. **

Wall Street Journal
May 2, 2007

http://www.opinionjournal.com/federation/feature/?id=110010014

Complaints against the "imperial presidency" are back in vogue. With a view to President Bush, the late Arthur M. Schlesinger Jr. expanded and reissued the book of the same name he wrote against Richard Nixon, and Bush critics have taken up the phrase in a chorus. In response John Yoo and Richard Posner (and others) have defended the war powers of the president.

This is not the first time that a strong executive has been attacked and defended, and it will not be the last. Our Constitution, as long as it continues, will suffer this debate -- I would say, give rise to it, preside over, and encourage it. Though I want to defend the strong executive, I mainly intend to step back from that defense to show why the debate between the strong executive and its adversary, the rule of law, is necessary, good and -- under the Constitution -- never-ending.

In other circumstances I could see myself defending the rule of law. Americans are fortunate to have a Constitution that accommodates different circumstances. Its flexibility keeps it in its original form and spirit a "living constitution," ready for change, and open to new necessities and opportunities. The "living constitution" conceived by the Progressives actually makes it a prisoner of ongoing events and perceived trends. To explain the constitutional debate between the strong executive and the rule of law I will concentrate on its sources in political philosophy and, for greater clarity, ignore the constitutional law emerging from it.

Yet the executive subordinated to the rule of law is in danger of being subordinate to the legislature. This was the fault in previous republics. When the separation of powers was invented in 17th-century England, the purpose was to keep the executive subordinate; but the trouble was the weakness of a subordinate executive. He could not do his job, or he could do his job only by overthrowing or cowing the legislature, as Oliver Cromwell had done. John Locke took the task in hand, and made a strong executive in a manner that was adopted by the American Founders.

Locke was a careful writer, so careful that he did not care if he appeared to be a confused writer. In his Second Treatise of Government he announces the supremacy of the legislature, which was the slogan of the parliamentary side in the English Civil War, as the principle that should govern a well-made constitution. But as the argument proceeds, Locke gradually "fortifies" (to use James Madison's term) the executive. Locke adds other related powers to the subordinate power of executing the laws: the federative power dealing with foreign affairs, which he presents as conceptually distinct from the power of executing laws but naturally allied; the veto, a legislative function; the power to convoke the legislature and to correct its representation should it become corrupt; and above all, the prerogative, defined as "the power of doing public good without a rule." Without a rule! Even more: "sometimes too against the direct letter of the law." This is the very opposite of law and the rule of law -- and "prerogative" was the slogan of the king's party in the same war.

Thus Locke combined the extraconstitutional with the constitutional in a contradiction; besides saying that the legislature is "the supreme power" of the commonwealth, he speaks of "the supreme executive power." Locke, one could say, was acting as a good citizen, bringing peace to his country by giving both sides in the Civil War a place in the constitution. In doing so he ensured that the war would continue, but it would be peaceful because he also ensured that, there being reason and force on both sides, neither side could win conclusively.

The American Constitution adopted this fine idea and improved it. The American Founders helped to settle Locke's deliberate confusion of supremacy by writing it into a document and ratifying it by the people rather than merely scattering it in the treatise of a philosopher. By being formalized the Constitution could become a law itself, but a law above ordinary law and thus a law above the rule of law in the ordinary sense of laws passed by the legislature. Thus some notion of prerogative -- though the word "prerogative" was much too royal for American sensibilities -- could be pronounced legal inasmuch as it was constitutional. This strong sense of executive power would be opposed, within the Constitution, to the rule of law in the usual, old-republican meaning, as represented by the two rule-of-law powers in the Constitution, the Congress which makes law and the judiciary which judges by the law.

The American Constitution signifies that it has fortified the executive by vesting the president with "the executive power," complete and undiluted in Article II, as opposed to the Congress in Article I, which receives only certain delegated and enumerated legislative powers. 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 the Federalist, as already noted, the executive represents the need for energy in government, energy to complement the need for stability, satisfied mainly in the Senate and the judiciary.

The case for a strong executive begins from urgent necessity and extends to necessity in the sense of efficacy and even greatness. It is necessary not merely to respond to circumstances but also in a comprehensive way to seek to anticipate and form them. "Necessary to" the survival of a society expands to become "necessary for" the good life there, and indeed we look for signs in the way a government acts in emergencies for what it thinks to be good after the emergency has passed. A free government should show its respect for freedom even when it has to take it away. Yet despite the expansion inherent in necessity, the distinction between urgent crises and quiet times remains. Machiavelli called the latter tempi pacifici, and he thought that governments could not take them for granted. What works for quiet times is not appropriate in stormy times. John Locke and the American Founders showed a similar understanding to Machiavelli's when they argued for and fashioned a strong executive.

In our time, however, an opinion has sprung up in liberal circles particularly that civil liberties must always be kept intact regardless of circumstances. This opinion assumes that civil liberties have the status of natural liberties, and are inalienable. This means that the Constitution has the status of what was called in the 17th-century natural public law; it is an order as natural as the state of nature from which it emerges. In this view liberty has just one set of laws and institutions that must be kept inviolate, lest it be lost.

But Locke was a wiser liberal. His institutions were "constituted," less by creation than by modification of existing institutions in England, but not deduced as invariable consequences of disorder in the state of nature. He retained the difference, and so did the Americans, between natural liberties, inalienable but insecure, and civil liberties, more secure but changeable. Because civil liberties are subject to circumstances, a free constitution needs an institution responsive to circumstances, an executive able to be strong when necessary.

The lesson for us should be that circumstances are much more important for free government than we often believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. "Civil liberties" belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war in order to return to peace.

The American Constitution is a formal law that establishes an actual contention among its three separated powers. Its formality represents the rule of law, and the actuality arises from which branch better promotes the common good in the event, or in the opinion of the people. 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. In judging the circumstances of a free society, two parties come to be formed around these two outlooks. These outlooks may not coincide with party principles because they often depend on which branch a party holds and feels obliged to defend: Democrats today would be friendlier to executive power if they held the presidency -- and Republicans would discover virtue in the rule of law if they held Congress.

The terms of the disagreement over a strong executive go back to the classic debate between Hamilton (as Pacificus) and Madison (as Helvidius) in 1793-94. Hamilton argued that the executive power, representing the whole country with the energy necessary to defend it, cannot be limited or exhausted. Madison replied that the executive power does not represent the whole country but is determined by its place in the structure of government, which is executing the laws. If carrying on war goes beyond executing the laws, that is all the more reason why the war power should be construed narrowly. Today Republicans and Democrats repeat these arguments when the former declare that we are at war with terrorists and the latter respond that the danger is essentially a matter of law enforcement.

As to the contention that a strong executive prompts a policy of imperialism, I would admit the possibility, and I promise to think carefully and prayerfully about returning Texas to Mexico. In its best moments, America wants to be a model for the world, but no more. In its less good moments, America becomes disgusted with the rest of the world for its failure to imitate our example and follow our advice. I believe that America is more likely to err with isolationism than with imperialism, and that if America is an empire, it is the first empire that always wants an exit strategy. I believe too that the difficulties of the war in Iraq arise from having wished to leave too much to the Iraqis, thus from a sense of inhibition rather than imperial ambition.

--Mr. Mansfield is William R. Kenan Professor of Government at Harvard.