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Bush's Determination and the Rule of Law

By Harvey C. Mansfield, None

Every once in a while I feel obliged to do my alma mater Fair Harvard a favor by showing the world that not everyone here is morally naïve and politically correct. I am grateful to The Crimson for providing the opportunity and wish only that Harvard’s faculty and administration were as diverse politically as it is.

Nonetheless, I begin from a recent Crimson editorial deploring the loss of America’s international reputation under the Bush administration. Reputation for what? I ask. A reputation for being agreeable and nice, or for acting strongly and successfully? No foreign policy move so far of President Obama has done more for our reputation than ordering the very humane shooting, with no interrogation, of three pirates.

The Bush administration certainly lost its reputation, as we saw clearly in the elections of 2006 and 2008. The administration’s opponents, who did their utmost to drag it down, now point to the result with unconcealed satisfaction, as if they were little innocents in the matter. But I do not believe that the American electorate turned against President Bush merely because they were misled by his opponents. They were misled by their own judgment. They thought him incompetent for starting an unnecessary war and then losing it; the problem was not that he acted illegally or wasn’t nice. In its impatience the electorate underestimated Bush’s determination and the resourcefulness of the American military. By the time the surge had brought victory in Iraq, the American people had made up their minds, and with Bush-like stubbornness, weren’t about to admit that they had been wrong.

Perhaps this analysis shows too much relish for successful violence and underestimates the power of goodness. I do not want to be dismissive of “American values.” But, again, what are they? It seems clear that both rule of law and strong executive power are American values because both are settled in our attitudes. Our country favors “due process” in almost everything and believes in the rule of law even to the point of excessive legalism. But we are also a “can do” country that wants results, is always ready to cut through formalities, and often calls its official philosophy pragmatism. These American values are in conflict but we hold them both nevertheless, as can be seen in our Constitution.

Let us look at the basics of the Constitution with a view to recent controversy. It is often said that the Constitution establishes the rule of law, and that is true, but only in a way. It also establishes a strong executive power, with a president elected by the people separately from Congress and with powers extending well beyond mere execution of the laws. America is the first republic to have a strong executive and much of its success is due to it. A strong executive looks like one-man rule, the very monarchy against which republics have always contested; its danger is obvious to partisans of republics and that is why before our Constitution, republics used to have weak executives.

Yet the rule of law also has defects less obvious to us. Suppose the law is bad, then the rule of law is the rule of bad law. Think of the law requiring Rosa Parks to sit in the back of the bus. And a good law, meaning good in normal circumstances, may not be good in an emergency, when the country is at war or under attack. It may not even be good in a special case in ordinary times; this defect requires what used to be called equity and is now called “empathy.”  Moreover, when executing the law it is not enough to say “pretty please”—violence is sometimes necessary. Necessary: the executive deals especially with necessity as distinct from desirability.

Now the Constitution contains both the desirable and the necessary; it maintains the rule of law through Congress and the Supreme Court, and it provides for extra-legal necessity in the executive. Because the Constitution is a law, a law above ordinary law, it gives its blessing to executive power that goes beyond ordinary law but remains under the Constitution. In this way the extra-legal becomes constitutionally legal.

How do we know when to follow the rule of law and when not? The Constitution gives no answer valid for all circumstances but instead, through the separation of powers, sets up a debate between the three branches of government, each of which has its typical argument against the other two. Congress, whether Democratic or Republican, tends to support the rule of law—after all, it makes the laws. The President—and there have been strong Presidents in both parties—tends to see the defects of law, since law is always easier to make than apply. Sometimes the President wins, as did Bush in 2004; sometimes he loses, as did Bush in 2008.

The Constitution intends that this debate never end, and it is naïve to think that one side should always win. But most of the naïveté is on the side of the rule of law, whose temporary supporters today are willing to shoot amateur pirates but not rough up far more dangerous terrorists at Guantanamo.

Harvey C. Mansfield ’53 is the William R. Kenan, Jr. Professor of Government.

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