I really have to stop raising my blood pressure by reading The Weekly Standard. However I followed a link to a piece by Harvey Mansfield (William R. Kenan Jr. professor of government at Harvard) entitled The Law and the President, and thought it might be interesting. It was – but not in the way I thought. It was sophomorically bad. Is this bozo REALLY a tenured professor at Harvard?
An example from the very first paragraph: “But enemies, being extra-legal, need to be faced with extra-legal force.” Say what? Aren’t all criminals “extra-legal”? Does this mean we give the police “extra-legal” force? Or take this sentence: “The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law.” In what way does “energy” correspond to “discretion”?
Of course all of this is in service of his dubious thesis that the Constitution should be interpreted as endorsing a unitary (unchecked) executive:
In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. The Framers made a strong executive in order to have both power and security, and they took note of emergency occasions when more power gives more security.
Separation of powers was a republican invention of the 17th century, but the Framers improved it when they strengthened the executive. They enabled the executive to act independently of the legislature and not merely serve as its agent in executing the laws.
Note the selective use of the word “emergency”. Mansfield (and others of his way of thinking, like Alito) introduce the word to justify exceptional action in exceptional conditions, and then quietly drop it to leave the impression that they’re talking about ordinary, everyday powers. The equivocation is relentless – and blatant.
For a more complete take-down of this “profoundly silly” piece, see David Luban’s analysis over at Balkinization.