Walking through a Mansfield

Since I've spent the last several weeks grading, I missed commenting on an extraordinary piece of pop political theory written by Harvard's Harvey Mansfield and printed in the Wall Street Journal. Glenn Greenwald has analyzed its tortured view of law here, but I think something also needs to be said about Mansfield's rather odd reading of the history of political thought. As the best known living Straussian, and arguably America's most prominent academic conservative (Samuel Huntington notwithstanding), Mansfield's arguments will be taken seriously in many quarters. His thesis:

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.

A pretty wild claim. Mansfield sets out to prove that the American founders--all appearances to the contrary--set out to create an executive who lived above the law, was not bound by either constitution or statute, and embodied the characteristics of Machiavelli's Prince as filtered through the English monarchy. He concedes that rule of law should sometimes win, but only in "quiet times," apparently "quiet" as defined by the executive himself. Remarkably, this argument repeats almost verbatim the most famous claims of Nazi legal theorist Carl Schmitt, whose The Concept of the Political was critiqued almost immediately upon its arrival in 1932 by Leo Strauss. In some ways, Mansfield seems to be undoing that critical distance between Strauss and Schmitt, an interesting development in its own right.

It is true, as I've noted before, that the American founders were indirectly influenced by Machiavelli. Not, however, by The Prince. The real link is to his Discourses, which celebrates the people (as smarter than the prince), the rule of law, the freedoms of speech, and an armed citizenry over specialized mercenary forces. These ideas, filtered through Algernon Sidney and Cato's Letters, created a strong presumption against monarchy, as both Sidney and Cato scorned any presumptions of executive privilege when confronted with the force of law, the authority of the legislature, and the power of the public. It is true, as Mansfield points out, that John Locke defended the executive's "prerogative" power, thus allowing him more discretion than either Sidney or Cato had. But in Mansfield's telling, Locke ("a careful writer") is a closet monarchist who sought to end the English Civil War by letting the absolute king win while making everyone think the legislative power had won.

Note to Straussians: stop using the doctrine of "esoteric teaching" as an invitation to bizarre acts of wingnut wish-fulfillment. Strauss was at least consistent enough to dismiss Locke as overly modern and "liberal." Reading Locke, as Mansfield does, as a more crafty Filmerite, does such violence to his text and to the history of his life and choices that it cannot withstand the laugh test. Locke was so radical that he had to flee to Holland for years, returning to England only when parliament had deposed the Stuarts and replaced them with its preferred royals, William and Mary. If Mansfield wants to use Locke as his prototype for an executive-centered political theory, I certainly hope he won't object when Congress ("the supreme power") commands the army to arrest George W. Bush, send him to Gitmo, and replace him with Al Gore. Locke's grants of prerogative primarily involve softening of the law (pardons), executive efficiency at moments when parliament is not in session, and foreign policy. But Locke always makes it very clear that the executive is bound by natural law and that final say in these matters is legislative. He constantly warns against giving executives too much power. Especially if you like them personally. Good princes, he says, will be followed by bad, and when they abuse their powers, you'll regret having given them a loose leash.

I won't document all of Mansfield's interpretive atrocities. He does a similar inversion on Aristotle, suggesting that Aristotle was really defending the "rule of man" against the "rule of law." What, might we ask, is the larger point of his argument? Apparently, that George Bush is a great leader, "a strong president" like Lincoln or FDR (stop laughing and go read the piece, I'm not making this up!) who is acting in our best interest even if we're too stupid to know it. Because republican (little-R) government means never having to listen to the people. Unless, of course, they're fearfully demanding an end to civil liberties in opposition to intransigent judges and legislators. Then the majority should rule. Finally, Mansfield ends by telling us we need more imperialism, not less. How about just smarter? I'd settle for that.