The Spiral of Indolence and the Summer of George

The advent of summer is the twilight of education. Never is the profession of teachers or the tradition of learning in a poorer state. Teachers either hasten to finish the curriculum or strain to stretch the remaining material until the end. Struggling to grade final exams is always a huge tell of laziness: those who complain about it aren't giving any work during the semester. Then moments after the students flee and as administrators and secretaries settle into summer mode, the teachers are gone. What do we do? Where do we go?

It varies, but too infrequently does it wander into intellectual territory. Students would surely revolt if they knew their teachers had no intellectual inspirations beyond the bounds of their master's degree. (Here's a mean trick, kids: ask your teacher about the latest developments and literature in his field.) Yet the annual sabbatical otherwise known as summer vacation seems seldom to further serious academic advancement. Such intellectual infertility owes not to any illness within the profession, though, but to the simple fact that indolence is a heinous vice.

Indolence can and will suck down any individual who does not guard against it. Yet we need not quote fire-and-brimstone sayings about idle hands, but rather may look that model of modern man, George Costanza. The story of The Summer of George (Season 8, Episode 22) tells with blistering hilarity the sad and true story of indolence. With a season of severance pay from his employer, George settles in a for a summer's hibernation. He starts with high aspirations to reading and frolf, but when indolence sets in, decompression from the tension of work yields to decomposition. After he's wiped by 10:30AM, his muscles are so atrophied by months of extreme inactivity that a tumble down the stairs renders him paralyzed.

http://infowetrust.com/2014/03/26/creative-routines/

The physical and intellectual paralysis seems hardly an exaggeration. What to do? Inspiration goes a long way. I have busts of Aristotle and Schubert on my desk, and the fecundity of their minds is no small part of my inspiration, or intimidation, to stay parked in my chair and write. A little history helps too, for example knowing of Mozart's packed schedules and Jefferson's infamous 15-hour study days. It may seem preposterous to compare oneself to the greats, but we doesn't need to measure up to their genius, only the humility and diligence with which even their talents worked.

Sometimes, though, you just need to throw yourself into activity. Moodiness and ennui will set upon anyone and a blind leap can break the pattern when the will falters. Today, for example, I couldn't summon the will or interest to do anything, so I decided to vacuum the steps. Instead of coming away tired from heaving that hoover around in the heat, I was provoked to take up other tasks which I had forgotten in my idleness. Activity exhausts, but it is indolence which enervates.

We don't need to have something momentous to show for each day, but the disgust we feel at our indolence is a sign that we should make the most of our day even if we don't have the highest aspirations. Something, even the tiniest bit, is surprisingly more satisfying than nothing.

Presidential Rhetoric III: Thomas Jefferson

Welcome to Part III of our series on the rhetoric of American presidential inaugural addresses. Feel free to take a peek at the previous entries in the series:

1. Worthy of Marble?
2. John Adams

As with the the previous speeches we will not be addressing the truthfulness of the assertions but rather we will consider primarily two questions: what is it trying to persuade us of and how does it do so. We will also, as before, look at some rhetorical criteria as set forth by Aristotle. For clarity I have chosen to annotate certain sections.

–

[Called upon to undertake the duties of the first executive office of our country,] I avail myself of the presence of that portion of my fellow-citizens which is here assembled to express my grateful thanks for the favor with which they have been pleased to look toward me, to declare a sincere consciousness that the task is above my talents, and [to declare] that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my powers so justly inspire. A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye—when I contemplate these transcendent objects, and see the honor, the happiness, and the hopes of this beloved country committed to the issue, and the auspices of this day, I shrink from the contemplation, and humble myself before the magnitude of the undertaking. Utterly, indeed, should I despair did not the presence of many whom I here see remind me that in the other high authorities provided by our Constitution I shall find resources of wisdom, of virtue, and of zeal on which to rely under all difficulties. To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked amidst the conflicting elements of a troubled world.

Jefferson's structure defers mention of himself to the middle of the sentence and begins by stating that the people have asked him to take up duties in the government. He continues by acknowledging with great care the American people, both those present and those elsewhere by saying "that portion of my fellow-citizens." Jefferson thanks them for their favor and states that he is humbled before the task. His use of the phrase "above my talents" compliments the opening "undertakes," both images of the president below the task. Clearly Jefferson is doing everything he can to convey humility. Even his structure does this, for example he says, "I avail myself. . . to express, to declare, that I approach" Clearly the "that I approach" utilizes some understood infinitive (for example, "to acknowledge") parallel to "to express" and "to declare" but he omits it to the effect of a mild anacoluthon, that is, a breaking off of the structure to suggest that he is being carried away by the moment. Jefferson continues to describe the awesomeness of the task before him, describing them not just as "anxious and awful presentiments" but "those anxious and awful presentiments, which the greatness of the charge and the weakness of my powers so justly inspire." The phrase, "which the greatness of the charge" suggests that anyone ought to be humbled by this office and the word "those" amplifies the sentiments by suggesting that the presentiments are somehow familiar to the men who have been president and endemic to the office. "Those" implies, "those same presidential." Jefferson continues to humble himself by expressing, parallel to the previous thought, that his own weakness is the cause of some of his apprehension. The logic of this naturally elevates the status of his predecessors. The phrase, "so justly inspires" emphasizes both points, that his apprehensions are cause by 1) the natural greatness of the office and 2) his own weakness.

Law and Custom

A sequel of sorts to Manners, Duties, and Society.

Bill McGurn has a noteworthy piece in yesterday's Wall Street Journal in which he treads into a thorny thicket of issues all centering on how colleges deal with sex crimes. He concedes that a collapse of traditional morality has a part to play but his argument is this:

[the] real threat to civility and common decency is this: the substitution of codes and committees for responsible adults exercising humanity and judgment.

Now this observation may sound wise and true enough, perhaps even self-evident, but it seems to me to raise a challenging political science question when applied to life outside a university campus. First, a little backtracking:

We must back track a little and ask, "What is a law for?" There are to this question two common answers: A) to punish criminals and achieve justice, B) to deter a particular act. We then may ask "How does it come about" to which we can reply that a law comes about when a group of people perceive some wrong and seize the moral authority to rectify the wrong by punishing the offender.

Now we must distinguish in a society between laws and customs, the former being compulsory and the violation of which is punishable, and the latter which is preferred and rewarded but not mandated. We could sensibly propose a hierarchy between the two, laws being thought to preserve more important (or at least more pragmatically important) values than customs.

In a free society, though, those two categories are always going to be in some tension. What ought to be a law and what ought to be left to the freedom of the individual? Clearly the more that is mandated the less liberal the society. Similarly, people have different ideas as to what the government ought to do, though but that is not my concern in this post. Nor is my question here whether universities or societies ought to legislate morality. My questions is this: when customs pass out of tradition and into obscurity can a minority of people rejuvenate the customs by enforcing them upon the people, i.e. by turning the customs into laws?

While voluntary conviction is clearly preferable to force for the purpose of establishing order (or anything), is it more or less reliable for preserving what it wants to protect than force (i.e. law and government)? And as a corollary, does forcing something via law makeless likely to be preserved because its care and administration has been taken (or delegated) from the people? (Bill's hypothesis seems to fall squarely in one of these camps.) We might, more radically, ask: to what degree does any law really work, i.e. to what degree is a law itself (and/or its enforcement) the prime cause of a given situation. After passing a law do we often, ever, bother to see if it actually changed anything? Does anyone care whether it does, or is the attempt enough to satisfy people's desire to bring about the good.

For conservatives these political science questions center around two pragmatic political topics. First, we must consider that while we want to "conserve" something that the government should not be the default tool for conserving. The government is not the proper, or perhaps even a possible, tool of conservation. Second, we should be aware that conserving something via government intervention or monopolization might have the opposite effect, even on liberty itself (c.f. Jefferson, "The people are the only safe depositories of their own liberty.") (from a letter to L.W. Tazewell, 1805.)

Perhaps the conservative rule should be simply "to do good" in contrast to the "I want good to be done" (i.e. by the government) attitude of state-centered modern liberalism.  People produce a culture and a society, and the society creates the government. Not the other way around.

To pose a final more philosophical question, I would borrow from de Tocqueville and ask: does equality under law beget (or encourage) a desire for total equality? Does then that desire, or the sating of it, make centralization of law easier by 1) shrinking the individual in relation to the state by making all individuals equal and thus equally small and interchangeable relative to it, and 2) making a law easier and more appealing to pass because of the reasoning that, "if it affects everyone it must be fair?" Does (or may), then, Liberalism, somehow contain the seeds of or propensity for illiberalism?

Perhaps either way the best defense against this infantalization, whether from "tyrannical ambition" or "servile temptation" (to borrow a pair of phrases from Paul Rahe's Soft Despotism) is a belief in liberty and not a contentment with servility in the hearts of the American people and a specific, limited body of laws. (Again, it seems always to be the lack of specifics, the lack of limits or finite ends, of the progressives which causes concern amongst conservatives and Classical Liberals.) A return to limits, liberty, and diffusion, not centralization, of responsibility amongst us is needed, lest the growing state slowly, imperceptibly render us as Tacitus said the rule of Augustus left the Romans, "capable neither of complete servitude nor of complete freedom."

A Response to "Economic Thought in Ancient Greece"

A Response to "Economic Thought in Ancient Greece" by Jesus Huerta de Soto.
Original article at the Mises Institute: http://mises.org/daily/4707

Precis of de Soto's article:

The intellectual odyssey that laid the foundations for Western civilization began in classical Greece. Unfortunately, Greek thinkers failed in their attempt to grasp the essential principles of the spontaneous market order.

This is a fine article and a very good look at the thought which separates 21st century economic thinking from that of the Classical world, the essence of which is the conception of spontaneous market order. Now I must as a Classicist admit I have more affection and respect for the parties in question, even when I [vociferously] disagree.

That said, there are a few points I would like to comment on. My intent is not to "correct" Mr. de Soto, but rather to expand upon various points of his since where Plato and Aristotle go awry, I believe they go awry in interesting and instructive ways. I have not been comprehensive here, but I hope I have provided some context and interesting questions.

N.B. This is a brief first and slightly off-the-cuff reaction to the article. I may add to or otherwise revise it in the near future, but I have posted it so soon toward the end of sharing it with more people by getting it out closer to the publication of the original article. Comments/corrections are still, of course, welcome.


Socrates

Now it is not hard to criticize Socrates and indeed his final self-defense did not endear him to the assembly. Nonetheless, and it seems odd to have to say this, but Socrates deserves some commendation. No matter how sympathetic you are to the charges of "corrupting the youth," the philosophizing and questioning Socrates was advocating were not yet in the air, let alone in the lifeblood of Western Civilization. Socrates was, really for the first time, widely presenting and disseminating it. Today we can pick up philosophy books, take classes, and freely and openly question just about anything. Now I do not only mean that we are free from compulsion or free from repression in the sense that we might be forcefully restrained from questioning. More important is that we know to question in the first place, and I think Socrates deserves a little credit for that.

As Socrates says in his defense, [I paraphrase] You bring me here for corrupting the youth. But who is more criminal: me, or you who pretend to be serious and to care for things which you never cared about at all?

Not all of the Greeks were amused, and in fact this summary from Wikipedia, intentionally or not, captures the hilarity of Aristophanes Clouds (Νεφέλαι):

Faced with legal action for non-payment of debts, Strepsiades, an elderly Athenian, enrolls his son in The Thinkery (the "Phrontisterion") so that he might learn the rhetorical skills necessary to defeat their creditors in court. The son thereby learns cynical disrespect for social mores and contempt for authority and he subsequently beats his father up during a domestic argument, in return for which Strepsiades sets The Thinkery on fire.

Aristophanes' description of the "Thinkery" or "Thinking Shop" (Clouds, 94)

ψυχῶν σοφῶν τοῦτ᾽ ἐστὶ φροντιστήριον.
ἐνταῦθ᾽ ἐνοικοῦσ᾽ ἄνδρες, οἳ τὸν οὐρανὸν
λέγοντες ἀναπείθουσιν ὡς ἔστιν πνιγεύς,
κἄστιν περὶ ἡμᾶς οὗτος, ἡμεῖς δ᾽ ἄνθρακες.
οὗτοι διδάσκουσ᾽, ἀργύριον ἤν τις διδῷ,
λέγοντα νικᾶν καὶ δίκαια κἄδικα.

Translation (Hickey) via Perseus Project:

This is a thinking-shop of wise spirits.
There dwell men who in speaking of the heavens
persuade people that it is an oven,
and that it encompasses us, and that we are the embers.
These men teach, if one give them money,
to conquer in speaking, right or wrong.

Socrates (up), Students (down), amidst studies. [1]

Of course it's all slightly less "funny" and more darkly ironic when you recall they did in fact poison him. Indeed Socrates mentions the unflattering and  false (he says) portrayal in his defense. [2] What was that line about being "remembered as the fools who killed Socrates?" Indeed.

Plato

Now clearly there is a lot in The Republic that. . . well, anyone would disagree with. I should point out Anders Mikkelsen' piece also at the Mises Institute, "The Politics of Plunder in Plato's Republic" [3] which offers the novel and interesting argument that "Plato's Republic is an exposition of the logical consequences of basing civic and personal life on injustice. It condemns political life based on institutionalized injustice — specifically theft and plunder." Let us then confine ourselves here to a few points.

de Soto writes

What is even worse is that Socrates's statolatry was so obsessive that it led him to confuse the positive law derived from the city-state with natural law. He believed people should obey all the positive laws derived from the state, even if they are contra naturam, and thus he laid the philosophical foundations for the legal positivism on which every tyranny to emerge after him in history would rest.

First, I don't know if "confusion" is the proper word. I believe the section in question is from the Crito (The Crito is quite short and the whole dialogue addresses this question.) Second, this is an excellent point I wish de Soto had delved into. Socrates' point seems particularly puzzling since he starts the dialogue by rebuking his old friend Criton for caring what other people think and then goes on to say one should obey unjust laws. I don't think one could argue the dialogue is very paternalistic and statist in tone. Most people would in fact find it off-putting. Socrates, having been convicted, imagines what the state would ask him if he tried to run away: [Translations, W.H.D. Rouse]

Tell me Socrates, what have you in mind to do? In trying to do this, can't you see that you are trying to destroy us, the Laws, and the whole state, as far as yo can do to it? Or do you think it possible that a city can exist and not be overturned, where sentence given has no force but is made null by private persons and destroyed. [Crito, 50b.]

Shortly later, the voice of the laws says, "you must either persuade [your country] or do what she commands; you must bear in quiet anything she bids you to bear" [Crito, 51b] Wow! That's certainly unambiguous and at the moment I can't imagine a more statist line. It reminds me of a quote from Theodore Roosevelt, "No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor." Sort of makes you want to aim to misbehave, doesn't it?

Yet it would be dishonest to end the discussion here, as the voice of the laws goes on to make the case that Socrates, before he committed this crime, was a free resident of the city. That is, he could have left. Instead, he stayed and chose to be subject to the laws. This is in fact the third of the laws' three arguments, that the criminal does wrong against the state in three ways, 1) because the state is his parents, 2) because the state is his nurturer, and 3) because he was there voluntarily. Speaking of remaining in the city voluntarily, Socrates could have proposed banishment as his punishment. How does this affect his relationship to the laws and state? The situation is now more complicated: if Socrates liked Sparta so much and was free to leave, why didn't he? I don't find de Soto's encapsulation of Socrates' choice very enlightening, and not just because it is unflattering to the philosopher. It would seem worthwhile, though, to take all of Socrates' claims at face value; I think doing so would provide more interesting venues of explanation even if one disagrees.

It seems a perverse situation, perhaps it is just to follow unjust laws but unjust to carry out unjust laws? Is is not just to carry out any law, then? Clearly Socrates thought his situation was just here, and he was also concerned with justice (see the opening two books of the Republic, Republic (588b-592b,  (608c-end.)) I am not presently at liberty to discuss the sections in question as well as the remainder of the Apology, but my point is that it is more profitable to approach the apparent problem with Socrates' ideas by reducing them to the principles which generated them and not simply saying, "he said x which was wrong, y which was bad, et cetera.) Lastly regarding Plato, there is one seemingly very liberal quote I cannot verify or place:

Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.

I'm not at all sure where this quote comes from, whether it is from the main canon of Plato or if it was found as a quotation in another author. It would seem to reflect the Hamiltonian notion that the need for government (for Hamilton a particular type of government [4]) was needed because of man's nature, or at least the "bad" inclinations of some." We might broadly say that "the only need for government is because of criminals." That sounds paradoxical since if there is no law there is no illegality, though we are presumably discussing natural law here. Similarly, Plato says education would reduce the need for laws. (Then again, he would only educate the guardians. Aristotle finds understandable fault with this in Politics I.vi. 1264a.)

Anyway, perhaps this question was better posed by Aristotle,

"The law has the power to command obedience only by habit, so that a readiness to change laws quickly enfeebles them." So when does one change them then? "Do not change the laws lightly; what you gain may be outweighed by what you lose in obedience." [Politics, II.vii. 1269a]

Clearly to us there is some perhaps unpleasant deference to the state. Again, the state seems to exist for its own sake.Yet we must remember a principle which runs throughout all of Aristotle, that "the whole precedes the part." Thus the state which evolves from the community which evolves from the family is just as legitimate as the family and the pairing of man and woman, which is natural and just (according to Aristotle) because it is of necessity.


We might say that both Aristotle and Socrates seem to say order is more important than liberty, but to say so we would have to consider their definitions of liberty. No one is pro chaos, even if he is against a coercive monopoly of law. As de Soto's phrase spontaneous market order suggests, faith in markets is neither faith in chaos or disorder nor love of disorder, but rather faith in spontaneously arising order. As de Soto quite properly says, the grasping of the spontaneity is truly the issue in discussing "ancient economics."


Prejudices Against Usury

de Soto understandably finds fault with some of the philosopher's positions on usury and money-making. Like Tibor Machan in his article from a few weeks ago [5], I think also and generally finds the philosophers just do not enough value the necessity of making a living.

Aristotle says, "Men want to increase their money without limit because they are intent upon living only, not living well." [Politics, I.ix. 1258a] Yet we must recall the Aristotelian principle that "that which is done for its own sake," that which is an end itself is more valuable. One does not work because he loves working, though he may love what he does, but because it is necessary to support himself. Yet if he plays a musical instrument or studies or takes up a hobby, those things are ends in themselves, done for no other purpose. [Nichomachean Ethics, I.i. 1094a]

Wealth is thus of value, but one must not understand things only in terms of their monetary value. [Rhetoric, II.xiii. 1389b.] One could of course translate that into an axiom more obviously "economic" but Aristotle's point is rather obvious.

Wealth-getting is a natural part of managing a household. Yet some people "turn every quality or art into a means of getting wealth; this they conceive to be the end, and to the promotion of the end they think all things must contribute. [Politics I.ix. 1258a]

Aristotle's censure of usury seems to me to be sensible even if you do not share it. Money, to Aristotle, was simply a stand in for work. You converted your work into coin so you could more easily trade it. Without money you could only barter; if you needed eggs but only had wine to trade, and the man with the eggs didn't want your wine, then you couldn't get eggs. Usury, in contrast, generates more money without adding any new product. There is more coin but the coin is, in this thinking, detached; it does not represent anything. The Greek word for interest, τόκος (tokos) is the same as the word for offspring, meaning that the money is born from money. Yet the disconnection from something of apparent and obvious value makes earning money via usury seem like a cheat.

In Politics, I.ix. 1258b Aristotle says such "wealth-getting" concerns are not "unworthy of philosophy" but rather they are illiberal. For various discussions of Aristotle and "liberality" see Recommended Reading below.



Aristotle on Property


On the one hand Aristotle does say common property would destroy liberality, and (humorously) that, "man will not simply become everyone's friend if property is made common." Certain evils, Aristotle says too, arise from man's nature, like perjury and breaking contracts (See Shuchman in Recommended Reading below.) Aristotle says property should be private, "How immeasurably greater is the pleasure when a man feels a thing to be his own" [Politics, II.v. 1263a.] but that its use should be common. See Swanson in Recommended Reading.

Regarding land and property, I think it is difficult for us in the 21st century with all of our technology to appreciate what seemed plausible in the past. Aristotle and Plato both thought there was an ideal size for a city. Jefferson writing in 1816 describing his system of wards and republicanism wrote:

Were I to assign to [republicanism] a precise and definite idea, I would say, purely and imply, it means a government by its citizens in mass, acting directly and personally, according to rules established by the majority; and that every other government is more or less republican, in proportion as it has in its composition more  or less of this ingredient of the direct action of its citizens. Such a government is evidently restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township. The first shade from this pure element, which, like that of pure vital air, cannot sustain life of itself, would be where the powers of the government, being divided, should be exercised each by representatives chosen either pro hac vice, or for such short terms as should render secure the duty of expressing the will of their constituents. This I should consider as the nearest approach to a pure republic, which is practicable on a large scale of country or population. [6]

Conclusion

I hope I have pointed out some things of interest, built on some of de Soto's statements, and elucidated some of his quotations.

If I may make one point, though, it would be that the aims of Plato and Aristotle's states were not liberty. The greatest good for the state, for them, was predicated on the greatest good for man. The ideal state is what it is because of what the ideal man is. A liberal state does not pretend that it has a template for the ideal man or citizen, though clearly there is behavior incompatible with liberal-democratic-republican-capitalist society. As Plato says in Republic VIII 561-562, you will find many various "constitutions" to which you will be tempted in a democratic state. Risky indeed, but it beats "being ruled."

Similarly, though, we may ask: Is it legitimate to criticize these authors for making economic mistakes when they were not, properly speaking, considering economics? (i.e. The distinct discipline we know as Economics)



Notionally I appreciate this point but I wonder if the premise would permit fruitful inquiry: because Plato et al didn’t realize they weren’t writing about “economics” we can’t criticize them for being wrong about economics. It would seem not to if one considers economics an objective science. It would appear to be more productive  to take the statements of the philosophers in question in context because these “mistakes” of theirs were made for particular reasons, i.e. not having conceptions of “economics” and a spontaneous order, being consistent with principles stated elsewhere in their work, and working toward a different end. On the one hand we don’t want to pigeon-hole them into later conceptions, on the other we somehow must if we consider there to be a larger set of “true”/objective categories.

In addition to being more constructive and elucidating, perhaps such a discussion about “the why” of their “mistakes” would have tempered the tone of Prof. de Soto’s article and made certain people not bristle so much, particularly those inclined toward philosophizing. We must consider that Plato and Aristotle hold philosophizing itself in high esteem. For them, choosing to spend your free time reflecting on philosophy is a great good.


Overall, I think it is less useful to say, "Socrates, Plato, Aristotle et al" missed x, y, and z" or that "they were wrong about a, b, c et cetera" than to say, "Why wouldn't this have occurred to them?" and "Why did they think this was necessary?" For an important reason probably, and maybe a good one. How can we accomplish that goal by a different means?

–

[1] Plato attempts to reverse this caricature of Socrates (and philosophers) in Republic VII.529b-529c
[2] Plato. Apology of Socrates, 19c.
[3] Mikkelsen, Anders. The Politics of Plunder in Plato's Republic. http://mises.org/daily/4201
[4] Rosano, Michael J. Liberty, Nobility, Philanthropy, and Power in Alexander Hamilton's Conception of Human Nature. American Journal of Political Science, Vol. 47, No. 1 (Jan., 2003), pp. 61-74
[5] Machan, Tibor R. A Problem with Aristotle's Ethical Essentialism. http://mises.org/daily/4458
[6] Letter to John Taylor. Monticello, May 28, 1816, M.E., XV, 19. in Koch, Adrienne. The Philosophy of Thomas Jefferson. Columbia University Press, New York. 1957. p. 164

Recommended Reading

Long, Roderick T. Aristotle's Conception of Freedom. The Review of Metaphysics, Vol. 49, No. 4 (Jun., 1996), pp. 775-802


McGrade, A. S. Aristotle's Place in the History of Natural Rights. The Review of Metaphysics, Vol. 49, No. 4 (Jun., 1996), pp. 803-829


Mayhew, Robert. Aristotle on Property. The Review of Metaphysics.

Shuchman, Philip. Aristotle's Conception of Contract.  Journal of the History of Ideas, Vol. 23, No. 2 (Apr. - Jun., 1962), pp. 257-264


Swanson, Judith A. Aristotle on Liberality: Its Relation to Justice and Its Public and Private Practice. Polity, Vol. 27, No. 1 (Autumn, 1994), pp. 3-23

Younkins, Edward W. Aristotle, Human Flourishing, and the Limited State. http://www.quebecoislibre.org/031122-11.htm

Man, State, and Morality

1. In a recent essay at Big Hollywood Mark Tapson discussed and expressed disapproval with some recent statements by filmmaker Michael Moore, who asserted all Americans share in the immorality of what he alleged were crimes committed by the American government. This is in fact, and surprisingly, similar to a philosophically-centered conversation your humble bloggers had a few months ago. The question boils down to this: what exactly is the relationship of the individual to the state? The corollary point, which is the only one discussed most of the time, is where does the responsibility for state action lie? There are a number of issues at play here so let us systematically look at them using the United States as an example.

N.B. While both of your bloggers discussed this issue recently, below are strictly my thoughts. I actually had in mind also various existential criticisms of the state, i.e. that it ought not to exist at all. Also, it is a rather preliminary investigation into these issues, presented here anyway for the purposes of promoting discussion and understanding of the questions.

I.

2. We already stated the first question, "what exactly is the relationship of the individual to the state?" We must now examine its constituent parts: the individual, the law, state institutions, and the execution of law. We must note first what is considered to be the natural state of things before any human action:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator  with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

3. Thus governments are instituted to secure man's Life, Liberty, and the pursuit of Happiness. Government's just powers are derived from the consent of the governed. Thus any body of laws should begin, "We the people, for the purposes securing Life, Liberty, and the pursuit of Happiness, establish laws, X, Y, Z, et cetera." Let us look at how the Constitution begins:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

It is not quite what one would expect. Instead of "Life, Liberty, and the pursuit of Happiness" we have to "form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." Logically we must assume the latter six not only to be compatible with but in fact a subset of the first three. These are those "principles. . . as to the people will seem most likely to effect their safety and happiness." Other principles we will find in the Bill of Rights and the form as we know will be a bicameral congress, judiciary, and executive.

Through the remainder of this essay for efficiency we will use simply the word liberty to refer an individual's life and property, the protection of which is the means of effecting the above principles. (We will consider this particular point again in section eight below.)

4. But let us return to the notion of "consent of the governed." What if you withdraw your consent and refuse to be governed? You still possess the natural right to secure your "Life, Liberty, and Happiness" yourself. You would simply have a private piece of property somewhere not subject to the specific subset of laws adopted by other nations. We will call these "private men." This sounds acceptable, perhaps even preferable. However what if 10,000, or 100,000 such private individuals existed. Let us say they are free to interact with, amongst, and on the property of Americans. Should disputes arise, which law would prevail, that of the private men or the Americans? Each case involving a private man and an American would be one essentially of "international relations," i.e. highly complex. The only solution would be to say that on American territory American law prevails. This means American law is effective in certain places (still stipulating that Natural Law is effective everywhere.) What if, then, a man moves far away from American territory but still wishes to follow American law? Imagine the year is 1800 and 10,000 citizens from New York disperse to 10,000 private residences amongst the wilderness of the frontier and wish to follow American law. This is naturally impossible to carry out. They are effectively their own countries who choose to accept American law.

5. Let us look at another example. A child is born to an American family in an American city. This child as we keep saying has the same natural rights as all people. (We will not henceforth mention this.) Does he inherit the positive law also? Yet he is a child and subject to the laws of his parents too. Then let us assume he has reached the age of maturity, 18, and pose the same question. He would appear to have the choice of staying or leaving. If he leaves his choice is clear, but if he stays? May we assume consent?

What if he inherits or purchases property surrounded by "American property?" Which prevails, his right to exercise his authority over his property or the concept that an umbrella of the state exists over certain property the state claims? It would seem the man's claim, being based on natural law, ought to prevail.

6. We see in the problems from the above section five that the concept of the state, which is by definition an entity of homogeneity, is in tension with the concept of liberal natural rights. The terminology of the preamble to the Constitution demonstrates the fact the Founding Fathers were attuned to this tension. For example, it mentions forming a "more perfect union" and insuring "domestic tranquility" and passing on liberty "to our posterity." All of these phrases suggest a need for smoothing over, for harmonizing, or at least mingling, discord. The first two phrases quite obviously refer to establishing the legal homogeneity required for a state we mentioned in section five above. The phrase "to our posterity" implies some need of continuity from one generation to the next. We will revisit these principles later.

7. We looked for the natural condition of man, shall we not do so for the state? Perhaps nature will resolve or assist us in resolving the contradictions we have observed. Undoubtedly the most famous statement in this line of observation is that of Aristotle's, from Book I of his Politics, that man "is by nature a political animal." The Philosopher reasons that the state is a natural outgrowth of the most fundamental association of all, that between man and woman. This pairing, he says, is not deliberate but natural and necessary. Such is the criterion he sets forth for associations, that "there must be a union of whose who cannot exist without each other." Clearly he is correct in this observation regarding man and woman. Can man exist without the state? Surely he may, theoretically, but can he in practice? Aristotle reasoned likewise that as man and woman form family, families form communities, and communities villages, and villages states. The end of a thing being its nature, man is thus said to be a political animal. Minimally we may say based on observation that lack of a state, even if such a lack is not natural, is certainly not the norm. Indeed, societies without continuous government and law can be seen to be less sophisticated.

8. A state comes into existence, as Aristotle says in the opening line of the Politics, with a view to some good. The Preamble to the American constitution sets forth the good hoped for. The legitimate state, then, exists to bring about for the people something necessary and something attainable by no other means.

We should digress to elaborate on this notion. Namely that government should act only by design, toward its end, and not in incidental manner. Too it should not impede anything else which is necessary. Likewise it ought not to impede or promote anything contrary to its end. We see then, by this argument, that the protection of liberty, more specifically the restraining of criminals and of necessity the state itself, from violating the rights of citizens, is the only proper role of government because it is the only goal which can be carried out without destroying another.

9. To return to our earlier statement then, that the legitimate state exists to bring about for the people something necessary and something attainable by no other means. For example, the union of man and woman exists because without such a union humanity would not continue. Is the fundamental purpose of the American constitution, then, possible, without the state?

It would seem so, especially because man is said to be "born free." If he is already free, then why does he need the state to be free? Yet is the preservation and continuation of liberty possible without a just (recall, "deriving their just powers") state? Clearly not, at least on one respect, for example the constitution was needed in the first place. The American colonists were free by right but not in practice. Likewise, "common protection" was deemed something only commensurate to a just state. This too is so, for while a man can defend himself from a bandit, and perhaps even a family may defend itself from bandits, it alone cannot protect itself from larger parties.

This family is then both free and not free. Though seemingly free from compulsion, it lacks the means, the force, to deter those who would initiate violence against it and deprive its members of their rights. We see then that the role of government ought to be toward restraining those who would deprive others of their rights, i.e. criminals. Non-criminals do not need to be and ought not to be controlled.

10. Lastly we may address the issue of the "posterity" clause of the preamble, which addresses the aspect of time. In fact it addresses an aspect of freedom only a continuum of some kind can fulfill. This clause makes the whole document eschew the ephemeral. Holding generations as well as individuals at legal parity, this seemingly slight phrase prevents any law which would sacrifice the future for the benefit of the present. This posterity clause is redundant insofar as everyone has equal rights and thus the old and young have the same. It merely emphasizes that these rights must of necessity be delegated from the young to the old.

It would seem that while man is "born free" his nature being a reasoning and political animal, that is by nature he may act beside inclination and must somehow interact with others, preserving his freedom is less plain a task. Thus to be free in practice man must either be alone or establish law and order. Unless, of course, all men are virtuous and in accord.

11. Thus policing is necessary, as is an institution for it, but is it a task only a state can fulfill? Let us consider domestic policing and foreign threats separately. Of policing it is clear individuals can rightfully defend themselves, and likewise clear delegating this authority to experts is desirable so one does not have to be in fear for his property or always to defend it himself. Yet it seems a private policing agency could be effective. In order to be in accordance with law it would have to work closely with the appropriate legal agency. It would then differ only slightly from a formal, state-run police force. However if there were multiple and changing forces the courts and legal system would be unable to coordinate with them all and produce a consistent protocol for dealing with crime.

Such would also be a problem in having multiple, dynamic, private armies: they would all need to liaison with the appropriate federal agency in order properly and consistently to carry out national defense policy. Both situations, private police and armies, would produce too many variables for the legal system.

Additionally, it being the case that the military and military operations have higher needs for unity it would be infeasible to merge or intermingle these private forces, potentially many and diverse in skill, age, and size, into a single operating force for imminent combat. As such the national force would be compromised. Also a military tradition must exist to maintain a sufficiently trained army, although should no other professional armed forces exist in foreign lands, one would then not be needed since all would be at equal advantage.  Until then, one must exist in a state.

Such of course presumes a standing army and thus a need for expediency. Only an in-place institution can react swiftly to dangers. Or at least more swiftly than if the citizenry had to react to each common danger as if it were the first. For example, imagine  a citizenry being threatened by a foreign power. Now imagine if they had not just to decide how to defend themselves, but first if and what sort of body, and a body of which people, ought to be convened to decide.

12. Yet these arguments are relatively slight and might conceivably be overcome given sufficient communication, planning, and efficiency. Such not being universally attainable, the above arguments must be brought forth. Most importantly, though, the administration of law must be enforceable and enforced, and for this reason some element of force must stand behind the rulings of judges and arbiters. If private enforcement agencies were instituted, they would in theory be accountable to the legislative and administrative authorities, but in practice would pose risk of faction in the realms of interpretation, jurisdiction, and administration.

Great caution must be applied in the creation of all institutions with the force to bind, since all force and power, external and internal, are potential threats to liberty. A great army to defend against external force might prove as great a threat to the citizenry as a foreign force. Precedent offers many such examples, most notably the Roman army's influence on the succession of the Caesars.

13. We see then, that a state is necessary in several respects. First is as set of laws fixed in place, something both necessary and natural. For example, there must be an objective law to turn to, otherwise even if two people can agree on a dispute, or submit to arbitration, why should a third, or fourth party be bound to the ruling? Thus they must be fixed, which is essential to be effective, i.e. to fulfill their purpose.  As Aristotle says in II.viii of the Politics, that while sometimes laws do need to be changed,

. . .great caution would seem to be required. For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience. . . For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law.

Second they must be instituted, i.e. carried out by an institution, i.e. a government entity, e.g. the mechanisms of administration or enforcement. Such is because all laws, even when they are fixed, are subject to the vicissitudes of life insofar as their administration, though not necessarily of their interpretation. Only an institution whose rulings are regarded as binding can create the objective standard needed for order. We must note, though, that an institution is not a guarantee of the end. We must stress it is itself only a means. Government does not guarantee liberty, of course, though good government is needed to create an orderly sphere in which liberty may be lived. Yet good government itself has requirements, namely broad understanding amongst the people of the nature of democratic-republican liberal government and the desire for, and the industry to create, peace, justice, and equality of rights. It also ought to reflect and be consistent with the natural law, its positive law ought to be practical to administrate, and it ought to reflect the nature of the people. An institution of good government is, though, a necessary means as mechanism and a natural, though not complete, retardant to change because it harbors precedent.

14. Having discerned the natural need for and state of the state, let us at last return to our issues from section five. The need for a state, in order to justify its existence, to exist fixed in time in law and domain means it cannot endure a constant flux where at any given time any amount of it is in fact not of it. In other words a state needs a domain.

As such a man, though a non-American, can obtain and freely possess American land, the land must remain of American law. The law being of a fundamentally liberal, i.e. minimal, nature, this ought not seem so egregious. This also answers our question regarding citizenship, i.e. if an individual comes of age and remains in the land does he consent to its rules? If the land is inherently of the law, then yes. We must add, though, that he must be free to leave.

15. Having inquired into the fundamental natures of man and the state we can look at the more subtle aspects of their relationship. Foremost we observe that it is the preservation of liberty which naturally binds them. To stray from this end is to be destructive of it. To stray from this end is also a moral hazard, since the individual has consented to be governed only toward the end of protecting his own liberty, not toward any other. To pass laws irrelevant to this end is also a breach of the contract between the governor and governed. In such cases the fault lies with the governors and legislators. The terminology we just used, that "laws bind" should make us pause and recall that all laws bind. Thus laws in addition only to addressing the issue of liberty, should be as few as possible.

Such demonstrates the necessity for the principle of federalism, wherein within one state there are smaller ones and still smaller ones. In a cascading effect, some laws apply to the whole land, some to smaller jurisdictions, and some only to the smallest. This has several benefits. First, people have choice amongst regional constitutions. Second, people are subjected to as few laws as possible, since people of a certain opinion can have their own town and law without trying to make a larger area, and thus likely people who disagree with them, subject to their law. Third and similarly, it is easier to pass certain laws since they will apply to fewer people and thus need a smaller consensus. Lastly, this system of cascading laws, or federalism, allows people to bind together for issues of great importance, and be free from what they do not wish to be a part of.

Jefferson made a similar plan with his system of wards, "It is by dividing and subdividing these republics from the great National one down thro' all its subordinations, until it ends in the administration of every man's farm and affairs by himself. . ." [1]

16. We see then that while life, liberty, and the pursuit of happiness naturally exist they do not naturally persist and are not always possible to act on. Even if one thinks freedom is conducive to allowing the individual to have everything he needs, it does not follow that everything (or nothing) is conducive toward effecting freedom.

The preamble to the constitution speaks of "unity, justice, defence, and securing for posterity." These are conservative points, as are the points about institutions we made above. Indeed we might do well to consider a just government an institutional of conserving liberty. A similar turn of phrase is found in Destutt de Tracy's Commentary and Review of Montesquieu, which much influenced Jefferson [2], that a rational government will always aim at conserving "the independence of the nation, the liberty of its members, and such security for every individual as to supersede the idea of fear internal or external." [3]

The Founders were acutely aware of forces, e.g. factions and mobs besides foreign threats, which were hostile to liberty. Even after experiencing tyranny, they resolved not to protect freedom by creating a vacuum of power, one they knew would be filled by the first man or confederacy which could arouse fear and promise security, but rather by arranging it as judiciously as it has ever been, with the most specific of focuses and limits.


II.

17. We may now observe the last of our three aspects, that of the execution of the law. It is in this respect which citizens most differ amongst themselves, how to carry out the law. In a democratic society there are indeed a great variety of opinions as to what ought to be done, how, and when, even when the final end is the same. It is in these respects which the government acts contrary to the will of some of its constituents. This could only be avoided if 1) society was governed by an individual or group with absolute power, which would mean the citizens could not be blamed for the actions of the government because the citizens had no choice. Or 2) if the government only acted when 100% of the citizenry agreed, which would remove all agency of the government since such a time would effectively be never.

18. Thus we might now answer our original question. If you disagree with the fundamental laws of the government of which you are a part, (I stress government and not society) dwelling there by nature is hypocritical.  Disagreeing with execution of law is a different sort of disagreement, in fact one fundamental to the concept of a liberal democracy. Yet when one disagrees one must voice dissent, and not just to one's fellow citizens, but to one's representatives in government to whom one has delegated authority. Only in doing so have you done the maximum you can to exert your single-citizen's influence over the law. You have also removed your sanction from what you consider "wrong" (let us indulge the use of this vague term here.)

19. Of course this is not some easy and delightful solution. There is a certainly-apocryphal quote[4] from George Washington that government is a “troublesome servant and a fearful master.” Indeed. Being political requires much of man. It requires diligence, reasoned consideration, and a consistent effort of keeping informed. Freedom too requires much of man, namely an active and continuous participation in government. Yet it requires still more than that, namely an understanding that politics both binds and separates, and that a man know himself, when to bind and when to stand alone. It requires a "conscious dignity becoming freemen." [5] Such is the cost of a free society. Simply to resolve that the government is "just bad" and to exonerate yourself of its actions is as foolish and is as shameful an evasion as hyper-statism. It is likewise dishonest and false to claim a nation of democratic citizens at fault for each and every of its government's actions. These extreme approaches try to resolve a complex problem into facile answers, wherein problems are either the fault of everyone or no one.

–

[1] Letter to Joseph Cabell, Monticello, Feb. 2, 1816, M.E., XIV, 420.
[2] Koch, Adrienne. The Philosophy of Thomas Jefferson. Columbia University Press, New York. 1957. p. 154, footnote no. 19.
[3] ibid. p.160.
[4] http://volokh.com/2010/04/14/government-is-not-reason-it-is-not-eloquence-it-is-force/
[5] Adams, John. Thoughts on Government.

Bibliographic Notes

After completing this essay I revisited Ayn Rand's essay "The Purpose of Government" which I had last read several years ago. I immediately became aware of many similarities between this and my essay. These were not deliberate nor did I seek to emulate, build on, or critique Rand. Nonetheless I must acknowledge the similarities and the debt.

Also after finishing my essay I read several sections of Ludwig von Mises' "Liberalism" and there too I noted similarities to this essay. Likewise they are not deliberate and in this case I had not read any of Mises' "Liberalism" prior to writing my essay.

Lest for any reason this essay be thought to give license to statism or a loose reading of "freedom" or "liberty" please consider my essay, "A Libertarian Case for Free Healthcare?"

Brief Comments on the Law

Originally a comment at The Hannibal Blog post, "Justice: by truth or victory?" and cross-posted here.

1. Andreas Kluth posed the question:

Which sort of judicial system, generally speaking, is more likely to lead to justice? One that:

• looks for the truth, or
• lets two sides fight it out to see who wins?

The first philosophy — justice as a search for truth — we call the inquisitorial system (because a judge sets out to inquire after the facts of a case, ie the truth).

The second philosophy — justice by duking it out until one side is left standing — we call the adversarial system (because two adversaries and their lawyers meet in court, and a judge merely makes sure that the rules are observed).

2. I'm somewhat more bullish on the "adversarial system" insofar as it seems essentially dialectical, i.e. that we expect truth to come out of the opposing ideas. Of course the adversarial system could be nothing but a glorified duel. Indeed, as one could show, it often has been, but I do not think it is of essence. We expect in this system not that each side be equally persuasive, but as persuasive as possible since the system assumes there is only one truth. Also, the arguments for both sides might be deficient, but seeing both of them resulted in a synthesis (truth.) This system is of course subject to the availability of facts and quality of logic.

3. Now the inquisitorial is ostensibly truth seeking too and just as dependent on the need of facts and logic. The difference is that the inquisitorial system is entirely dependent on the inquisitor's logic (would an "inquisitory panel" be more reliable? The term certainly reeks of totalitarianism.) whereas in the adversarial system, even if carried out poorly, there would be some element of contrast.

4. The problems seem in both cases to be 1) human error, and 2) the lack of finite methods for dealing with these cases. Regarding point No. 2, such is why many rightly consider English common law such an achievement, since it dealt with many issues and was refined over many many years. It reflected the nature and character of the people, what they considered natural and normative. Yet such a system requires an essentially homogeneous and relatively static society.

A brief discussion of justice as it intersects with the need for truth. Those uninterested may skip to paragraph 11.

5. As commenter Richard said, though, what is justice? Justice would seem to require truth. The burden of proof being "guilty beyond a reasonable doubt" certainly prevents injustice, but if a guilty person goes free is that justice? Of course not, but implicit in this very liberal standard is a sense of the imprecision of matters. To paraphrase Aristotle, the legal world is by nature a combination of logic and ethical-politics, rhetoric and dialectic, and various disciplines (with their own problems) precisely because it deals with matters for which there are no specific arts and precisely because we have alternative possibilities.

6. Its methods are inherently imprecise in some cases. To use the word science loosely, science aims at the truth but can be refined over many years by many great minds and altered with the benefit of looking at many examples. Still, it's truth is admittedly provisional. To expect perfection in every case from a legal system with so many variables, including time constraints, working against truth is hazardous. Thus, "beyond a reasonable doubt" is not only necessary but its existence demonstrates a keen observation. Such is not to say truth is always or even usually, out of reach, but rather that an individual's liberty (and thus his finite life) ought not to be lightly taken away. We might be less wary of pronouncing judgment if the stakes were not so high. One must note though, that we cannot say a legal system has failed either by excess or lack of convictions, but must independently consider each case. 

7. Additionally, in a system founded on natural law, justice is part adherence to natural, immutable law and part adherence to positive, man-made law. To call a decision "just" then requires justice in both senses, and thus the positive has in all cases to be in accord with the natural. (See Aristotle, Ethics, 1134b, Rhetoric 1373b)

8. Let us consider a few hypothetical cases then. If a defendant has been logically proven guilty but is acquitted on account of a procedural rule or an obscure point of law, the fault is in the positive law. I say fault and not defect since the law in question may be designed to prevent a guilty man from being convicted. Such a system protects the innocent to the advantage of the guilty (and perhaps at the expense of other innocents, if the guilt party who was not convicted goes on to harm innocents.)

9. Such sounds unpleasant and contrary to justice but the only alternatives are 1) a perfect system with perfect people, or 2) a system which convicts the guilty at the expense of the innocent. Such examples can readily be found in totalitarian states. The concept was also nicely illustrated in two episodes of the Star Trek franchise. In the Deep Space Nine episode "Tribunal" we learn on one planet that all cases end in convictions. "The system is efficient and the swiftness of 'justice' makes the people take pride in it." (a paraphrase) In the Next Generation episode "Justice" we see a planet with seemingly normal rules, but there is only one punishment, death. That surely keeps the peace. (In contrast to this extreme consider Aristotle's concept of "equity," Ethics 1137b and Rhetoric, 1374.)

10. Thus in every legal case we are subject to the available means of truth-gathering, the available means of persuasion, the competency of the legal parties (lawyers and judges), and to what the laws themselves tend, deliberately or accidentally, to produce.

11. Have we answered our original question, whether an adversarial or inquisitorial system is desirable? Yes, insofar as we have seen they carry mostly the same defects. Is it more likely to find one person, the inquisitor, competent to the task for an inquisitorial system or two, evenly matched in skill, for the adversarial system? Is it more likely for a judge or two lawyers to be corrupt? These questions are most similar to those we saw in examining the concept of executive authority. [1] Are there then no virtues in any system involving these two methods?

12. Yes, and we will see them in a mixed system, whereby the whole case is broken down into separate elements. We see one virtue in the need of being convicted not by a fixed "inquisitorial board" but a newly- and impartially-formed jury of one's peers. We see one in the ability to represent oneself, choose one's counselor, and be guaranteed one. We see one in having an expert in law (a judge) accordingly guide the proceedings. Yet these structures do not guarantee justice, though they aim toward protecting the innocent. Also they cannot produce perfect justice in every case if they aim either to protect the innocent or convict the guilty. Most importantly they do not guarantee justice because they cannot guarantee good and wise lawyers, jurists, and judges, and while law may be amended better to promote justice, the injustice of acquitting the guilty or convicting the innocent cannot be undone.

13. Thus we, if we are to expect justice for others and ourselves, ought to err on the side of liberty and, being a part of the justice system, must ourselves keep informed and strive toward wisdom. No system can compensate for a foolish and frivolous people.

–

[1] http://apologiaproliterativita.blogspot.com/2010/05/thoughts-on-american-executive.html

Freedom and Natural Law

A few weeks ago in an interview with Reason TV, libertarian Judge Andrew Napolitano made the following statements about the Constitution of the United States in the context of natural law:

The constitution protects persons, it's not limited to Americans. And persons is not even limited to good persons. It protects Americans, it protects aliens, it protects those legally here, it protects those illegally here, it protects those who wish us well and those who have caused us harm. It makes no distinction whatsoever. This is absolutely consistent, the constitutional protection of persons, with the Lockean, and Jeffersonian, and Augustinian, view, and Thomistic view, that our rights come from God and are gifts into our humanity, and are as much a part of us as the fingers on the ends of our hand.

That would apply to me, to you, to George W. Bush, to Barack Obama, to Khalid Sheik Mohammad, to Richard Speck, to Al Capone, to anybody that the government wants to restrain for any reason.

The boldness and openness, even brashness, of these statements undoubtedly take even proponents of natural rights off guard. Yet somehow the tone is familiar. Quite a long time ago someone else boldly made the case for natural law:

True law is in keeping with the dictates of both reason and of nature. It applies universally to everyone. It is unchanging and eternal. Its commands are summons to duty, and its prohibitions declare that nothing wrongful must be done. As far as good men are concerned, both its commands and its prohibitions are effective; though neither have any effect on men who are bad. To attempt to invalidate this law is sinful. Nor is it possible to repeal any part of it, much less to abolish it altogether. From its obligations neither Senate nor people can release us. And to explain or interpret it we need no one outside our own selves.

There will not be one law at Rome, and another at Athens. There will not be different laws now and in the future. Instead there will be one, single, everlasting, immutable law, which applies to all nations and all times. The maker, and umpire, and proposer of this law will be God, the single master and ruler of us all. If a man fails to obey God, then he will be in flight from his own self, repudiating his own human nature. As a consequence, even if he escapes the normal punishment for wrongdoing, he will suffer the penalties of the gravest possible sort. [Translation by Michael Grant.]

This is the famous passage on natural rights from Book III of Cicero's "On the State" and it seems safe to say Cicero exceeds Judge Napolitano in eloquence. Even with Cicero, though, there is something daring about discussing the natural law, something audacious about declaring one rule for all everywhere. It's exhilarating too.

HBO's miniseries John Adams properly suggests the initial impact of such a statement. Adams, upon reviewing Jefferson's draft of the Declaration:

Well this is something altogether unexpected. . . not only a declaration of our independence but of the rights of all men.

Indeed, and the draft bears even more striking resemblance to Cicero than the final version, speaking of how the king "waged cruel war against human nature itself." [1] Nonetheless the final draft rings clear also:

. . . to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them. . .

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator  with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . .

Individual rights are an individual's by nature. Period. The statement is boldly laid down as an axiom, not open to negotiation. This is not a dissertation on independence, but a declaration of it. These rights do not come down from kings or oligarchs or up from the majority, but reside in each individual.

Indeed, and Napolitano also makes a key point: that the American Constitution only mentions individuals, not groups. It does not create distinctions and does not have different sets of rules for dealing with different "types" or "groups" of people. It can only deal with people in one way, as individuals.

What a risk, not just to personal life, but of failure in establishing law and government of such a nature. For a mob to behead its tormentors is one thing and it is similar for a small oligarchy to change its puppet. History has many such examples and historians and philosophers have noted the tendency of governments to rotate amongst democracy, oligarchy, aristocracy, and monarchy. The forming of a constitutional democratic-republic formed by delegates elected from the people in order to replace a tyranny is not quite as common.

Many factors, some of chance and some created, must come to be for success in such an undertaking. Aristotle noted one, "In the generations of men as in the fruits of the earth, there is a varying yield; now and then, where the stock is good, exceptional men are produced for a while, and then decadence sets in." (Rhetoric II, xv.) Notions of "stock" aside, the Founding Fathers were a remarkable generation. (Using "generation" loosely as their ages were actually rather varied.) It is common to praise, even glorify, these men, but panegyric unfortunate and unnecessary. While it would be foolish and inappropriate to praise as a group their individual virtues, a broad reading of their lives reveals at least one virtue: the intellectual. Aside from the difficulties of the philosophical and liberal arts works that constituted the core of their education, the study of the law was particularly difficult. This owed to a lack of what we know as "text books," difficulties in obtaining texts, and the "dreary ramble" (in Adams' words) of studying the law with the standard text of the time, the "bewildering mass" of the work of Sir Edward Coke. [2]

While we of course benefit from their great sacrifices and challenges, we too continue to gain from what were at the time minute things: staying home to study and wading through Aristotle, Thucydides, and Edward Coke.

In what is actually a paraphrase and amalgamation of correspondence between John and Abigail Adams, HBO's miniseries about America's 2nd president ended with this statement:

No, posterity, you will never know how much it cost us to preserve your freedom. I hope that you will make a good use of it. If you do not, I shall repent in heaven that I ever took half the pains to preserve it.

–

 At the site where John Adams as buried, United First Parish Church, Quincy, MA.

(click to enlarge)

Pilgrim,
From Lives thus spent thy earthly Duties learn;
Form Fancy's Dreams to active Virtue turn:
Let Freedom, Friendship, Faith, thy Soul engage,
And serve like them, they Country and thy Age.

–

[1] http://www.ushistory.org/declaration/document/rough.htm
[2] Malone, Dumas. Jefferson the Virginian. Little, Brown and Company. Boston. 1948.

Thoughts on the American President

An Introductory Inquiry Into

the Nature of the Office of the American President

Update: 2/17/13. I can't say I'm persuaded by this today. I leave it up for whatever instruction it may provide by its errors and whatever merits it possesses.

Preface to the Preface

I usually begin writing only after a great deal of reading. Regarding this essay, though, I consulted more or less only biographical and primary sources. As such I only came to a book that covers much the same ground as this essay when I turned to Google to verify a quote. As such I only came upon Gene Healy's 2008 book, "The Cult of the Presidency, Updated: America's Dangerous Devotion to Executive Power" after completing the overwhelming majority of this essay. Actually I discovered I had in fact bookmarked the link in my browser and that it had gotten overlooked amidst the other 500+ books in the "books to read" folder. Anyway, I have not read Healy's book though I will soon. Any similarities between his book and my essay are coincidental.

Update: In another coincidence, today [June 2, 2010] the Mises Daily blog published Thomas E. Woods Jr.'s essay, "Theodore Roosevelt and the Modern Presidency" from the volume, "Reassessing the Presidency:The Rise of the Executive State and the Decline of Freedom," edited by John V. Denson. I was as unfamiliar with this volume as with Healey's when writing the essay posted yesterday [June 1, 2010], but I thought I would mention it here both to say so and because the work is relevant.


Preface

Below is the fruit of your humble blogger's 2010 Memorial Day. It is a brief and cursory look, relative to the magnitude of the topic, at presidential authority. As I note in the introduction, it was spurred most immediately by the recent pan-punditry opinion that President Obama "fix" the oil mess in the Gulf of Mexico. More broadly, I had in mind in writing this essay how often people like to have it both ways with the president, wanting "Camelot" without the dangers of absolute authority. They want him to have agency, but only to bring about what they want. Likewise presidents seem to prefer authority without responsibility. This issue has of late been the subject of much popular attention but with surprisingly and frustratingly little substance. Such is most unfortunate. My hope is that this modest essay will promote some more scholarly and insightful yet still popular debate (i.e. debate not limited to academia) and that its cursory nature will be outweighed by the importance of the subjects brought out.

Introduction

In recent weeks the great and terrible oil spill in the Gulf of Mexico has rightly caused much anxiety in people everywhere. Of late, though, many Americans of various political persuasions have sought the solution from President Obama. Ought we to look to the Commander In Chief to solve this problem? Why or why not? Many look to him also expecting him to "fix" the economy. Is this a responsibility of the president? As the last president with his "I'm the decider" rhetoric, President Obama has since fostering the cult of personality that grew during his campaign, encouraged people looking specifically to him as the solution. His statement from his nomination victory speech in St. Paul in June 2008 epitomizes the manner in which the success was attached specifically to him. His election was the time, "when the rise of the oceans began to slow and our planet began to heal."

While we must not get bogged down in the words of politicians stumping for office, considering they may say what they do simply to get elected, we should not disregard them outright on the grounds that  they say what they expect will get them elected. If then-senator Obama thought such an approach would fail he doubtlessly would have proceeded with another. Thus the politician's approach  says something about the politician's expectations of the people and the success of the approach confirms or denies the expectation. While this factor, the "popular factor" let us call it,  is important, it is subject to variables that may cause people to act differently. To choose examples of late consider the wars in the Middle East and the economic crisis of 2008. Thus of the "popular" factor we have two subsets: the aspect of how citizens generally choose their leader and now they may whilst with extenuating circumstances.

A contrasting pair may illustrate the problem more clearly: the "return to normalcy" and the appeal of a laissez-faire leader after the tumultuous years of the First World War in the Harding campaign of 1920 versus the fact that Franklin Roosevelt campaigned for and successfully won an unprecedented fourth term as president during the crisis years of WWII and the Great Depression. The phrase "Inter arma enim silent leges" (attributed to Cicero's Pro Milone) epitomizes this tendency and many examples of its playing out are notable in American history. Examining them would no doubt be fruitful, considering the concepts of habeas corpus, martial law, and specific instances like the 1798 Alien and Sedition Acts, the 1861 Ex parte Merryman case, and various issues of detainment in the 20th and 21st centuries. But such is beyond the scope of our present inquiry. It will suffice us to say that people tend toward allowing whoever is entrusted to solve a problem more extra-ordinary latitude when the problem is perceived to be of crisis proportion. [1]

Part I

What Is the President?

Aside from instances of extremes, then, we may ask a simple question: what should the authority of an executive official be? This question naturally begs another, "what is an executive official?" While we are foremost concerned with the American tradition we ought to inquire about the fundamental characteristic of the "executive official." In making this inquiry we stumble onto something unusual, there is something very natural and obvious about the notion of "someone being in charge." Why is this so natural? Why ought not a body of magistrates be sufficient? Whatever the characteristic of the leader is, excelling in virtue, wisdom, intelligence, wealth, power (i.e. agency, or "the ability to get things done") et cetera, there is something normal about the individual embodying what a given society holds most dear being its natural leader. Consider Aristotle's statement in the Nichomachean Ethics, Book VIII: Ch. 9. (1160b) "For a man is not a king unless he is sufficient to himself and excels his subjects in all things." This explains the historic and seemingly natural tendency to look toward the leader to solve problems. The authority of the best has also in many times and places been considered divinely authorized. These concepts are both epitomized in the famous speech of Nestor, King of sandy Pylos, in Book II of Homer's Iliad:

But when he came across any common man who was making a noise, he
struck him with his staff and rebuked him, saying, "Sirrah, hold
your peace, and listen to better men than yourself. You are a
coward and no soldier; you are nobody either in fight or council;
we cannot all be kings; it is not well that there should be many
masters; one man must be supreme--one king to whom the son of
scheming Saturn has given the sceptre of sovereignty over you
all." [Trans. Butler, Samuel.]

It would be fruitful to consider at length more conceptions of absolute monarchy and authority. Yet such an inquiry would indefinitely delay release of this essay which I hope to be timely and of imminent use. As such we must admit that our present investigation in part stands atop, however firmly, certain axioms of liberalism and republicanism, namely that individual freedom is innate and designing a state around freedom as a first principle is both possible and good. We may thus cautiously pass over the absolutist theories that stand wholly outside the American liberal tradition. (fortunately the fundamentals of these notions are familiar to most.) Yet it would be unwise fully to abandon them as the absolute monarch rose to fill a need in a society and the proponents of such a system of government sought to achieve some end by their plan. As such it might be fruitful to consider their ideas so the veritable need, if there is one, may be fulfilled by another means more amicable to our system, and that false needs, i.e. interests of select individuals or groups, might be guarded against. Since the ordering of society is not our present inquiry thus we must pass over it for now.

Remember when we are looking into traditions essentially autocratic or monarchical in nature and not republican, we are only investigating the question of why someone thinks monarchy is necessary so we can discover those reasons, evaluate them, and then either disregard them or discover how to fulfill them in as democratic-republican a manner as possible. For example, Aristotle concludes that tyranny is the worst form of government thus the opposite of the worst is the best, thus monarchy is the best form of government. For our purposes, we may say that the characteristic of despotism by one man is the essence of tyranny, thus we ask "how do we avoid despotism?" (of both mobs and tyrants) without necessarily adopting monarchy.

Revisiting the concept of the leader embodying the values of the people we may revisit the section of the Ethics starting "For a man is not a king unless he is sufficient to himself and excels his subjects in all things" and continue the thought:

For a man is not a king unless he is sufficient to himself and excels his subjects in all things and such a man needs nothing further; therefore he will not look to his own interests but to those of his subjects.

Continuing, let us look at Book III, Chapter VI of the Politics:

. . . governments which have a regard to the common interest are constituted in accordance with  strict principles of justice, and are therefore true forms; but those which a regard only the interest of the rulers are all defective and perverted forms, for they are despotic, whereas a state is a community of freemen.

Thus the leader must possess all in excellence and safeguard the interests of the people. Aristotle has of course in mind particular interests for the people, as he is concerned with the good for the individual. We may consider that various constitutions necessitate various "interests."

We see Aristotle's point developed in the thoughts of Thomas Hobbes from his Leviathan. Hobbes advocated a strong central government to avoid the "bellum omnium contra omnes" and an absolute monarch on the practical grounds that:

. . . that where the public and private interest are most closely united, there is the public most advanced. Now in Monarchy, the private interest is the same with the public. The riches, power, and honour of a Monarch arise onely from the riches, strength and reputation of his Subjects. For no King can be rich, nor glorious, nor secure; whose Subjects are either poore, or contemptible, or too weak through want, or dissention, to maintain a war against their enemies. . . [Hobbes, XIX. emphasis mine]

Now we said we would permit this excursion into thinkers and principles outside the American liberal tradition to learn what they thought only a strong monarch could accomplish. We have learned that the monarch must 1) fulfill the needs of the people and 2) that as a protection against corruption it is best for the monarch's needs to be the same as those of that public, that in seeking the former he achieves the latter anyway. Only such an individual, a king, we are told, can pursue the "common interest" without fear of corruption. Finding as best we can the positive aspects of monarchy being accomplished, we may now consider the negatives. This is a simple task and we need not dwell on the numerous flaws of monarchy, chiefly its degeneration into despotism with the pursuing of interests deleterious to the constitution of the people. But can the benefits of an executive be attained without the detriments? Who may govern free people?

Part II

The American Tradition

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain  and establish this Constitution for the United States of America. [Preamble to the Constitution of The United States of America]

Thus we see what the government of The United States has been instituted for. How might an executive work towards this end?
 
Because it would be foolish to consider the role of the political leader without any consideration as to the nature of the state he is leading, we should make a few observations.

First, we must note the importance of the phrase "we the people." It contrasts the notion that sovereignty descends from the leader (i.e. the monarchial "sovereign") but rests in individuals. This cannot be stressed enough both for its legal implications and its social ones. In the latter case we must recall the degree to which the monarchical sovereign and his court was the center of life, wherein even private citizens related to each other by their relationship to the king. This is a system long-departed in America, with personal associations dominated by regional, social, familial, ideological, commercial, et cetera affiliations. Whatever the tendency of people is to gravitate toward a strong character, especially one who is perceived to embody certain values, be the figure political or not, this tendency must be seen as diminished today relative to its expression in the era of absolutism. It is not at all gone, though, and we see politicians ever and always hoping and trying to accrue and consolidate influence to compensate for their relatively weak formal authority. This fervor is usually confined to the office of the president and reaches its highest pitch around his election and inauguration, during which those disposed toward exuberance (irrational or otherwise) can rarely be persuaded the president is anything other than excellent. It is in fact a small subset who remain so enthralled outside this period.

Second, we may consider that despotism, both of a majority or minority (i.e. a tyrant or a mob) is incompatible with the notion of a republic, i.e. a res publicae, meaning the state is the property of the people and the law common to all. This is the contention of Cicero in his dialogue On the State which is a clear exploration of this issue. While he differs somewhat, Aristotle also states (1268a) that in the ideal state everyone will have some part in the state, some reason for wanting it to endure. We will not consider here the legitimacy of the state itself, it being too large a subject. For further reading see Cicero in On the State, and Aristotle in his Politics (Politics I.ii (1253a)) who considered it natural, and Thomas Jefferson who in one of his personal letters, wrote that delegating one's authority was justifiable. [2]

In the introduction to his The Radicalism of the American Revolution, Gordon S. Wood encapsulates these two points:

The revolution did not just eliminate monarchy and create republics; it actually reconstituted what Americans meant by public or state power and brought about an entirely new kind of popular politics and ad new kind of democratic officeholder. [Wood, 8]

We are then looking at a leader of fundamentally different character and role, and with authority different in kind and degree. We will not make the claim that the American President is just a variation on the theme of the monarch.

Having only just thrown off the shackles of tyranny, the authors of the constitution tread proceeded carefully in designing an "Executive." Yet one indeed, however weak, was deemed to be needed. The result of our inquiry into Aristotle and Hobbes taught us that "fulfilling the needs of the people" was one of the monarch's tasks. This of course implies authority and means. As we have said, the executive office will be limited. What should it's power be then? What individual sovereignty should the people delegate to the "Executive Branch?"

Lawyer and delegate from Connecticut, Roger Sherman, who in fact sat in the Congresses that produced The Declaration of Independence, The Articles of Confederation, and The Constitution, said of the office of the Executive at the Constitutional Convention that it was, "nothing more than an institution for carrying the will of the legislature into effect. . ." and that it should be "absolutely dependent on [the legislature]", an independent executive being "the very essence of tyranny. [Madison's entry for Friday June 1.]

In John Adams' Thoughts on Government, Adams states "the executive power is properly the government; the laws are a dead letter until an administration begins to carry them into execution." [McCullough, 378]

We see that the task of providing for the people is taken from the monarch and given to the government as a whole. The "monarchical" branch is therefore now called "executive" in contrast to the "deliberative" branch of the legislative congress. The congress deliberates as to what ought to be done and legislates that it should be done and the executive branch carries it out, or executes the legislation. The branch is no longer the "rule of one" but the "carrying out."

The next greatest issue regarding the executive office was this: what exactly is the president's authority to "carry things out?" The first manifestation of this questions is the President's veto (called "negative" by the delegates of the Convention) power. It was immediately contentions and none other than the esteemed James Wilson, legal scholar, signatory to the Declaration of Independence and The Constitution, and one of the first group of six Supreme Court Justices appointed by George Washington, along with Alexander Hamilton suggested that the executive should have an absolute veto, such being necessary to defend itself against the legislature and citing that the British monarch himself had seldom used it. This was roundly contested by three men on three grounds. First,  Eldbridge Gerry of Massachusetts (one of only three delegates who in the end did not sign the final draft of this Constitution), thought no great control would be needed over the legislature which would naturally be comprised of the best men. Second, lawyer, Connecticut delegate ( and signatory to the Continental Association, the Declaration of Independence, the Articles of Confederation and the Constitution) Roger Sherman said no one man ought to be able "stop the will of the whole." Lastly, James Madison most practically suggested that "a proper proportion of each branch should be required to overrule the objection of the executive."

Benjamin Franklin, drawing on his experiences from his considerable time in England, noted the English monarch only seldom exercised his veto power because he bribed Parliament. Franklin feared the same would happen in America and after a short passionate speech by Col. George Mason criticizing the current draft of the Constitution for potentially creating an "elected monarchy," concluded:

. . . The first man put at the helm will be a good one. Nobody knows what sort may come afterwards. The executive will be always increasing in size here, as elsewhere, till it ends in monarchy.

Hamilton, in a speech on June 18, was more sanguine about "monarchy." It is worth quoting in its entirety.

 As to the executive, it seemed to be admitted that no good one could be established on republican principles. Was not this giving up the merits of the question, for can there be a good government without a good executive? The English model was the only good one on this subject. The hereditary interest of the king was so interwoven with that of the nation, and his personal emoluments so great, that he was both sufficiently independent and sufficiently controlled to answer the purpose of the institution at home. One of the weak sides of republics was their being liable to foreign influence and corruption. Men of little character acquiring great power become easily the tools of intermeddling neighbors. . .

What is the inference from all these observations? That we ought to go as far in order to attain stability and permanency as republican principles will admit. [Let one body of the legislature be constituted during good behavior for life. Let one executive be appointed [for life] who dares execute his powers. It may be asked, Is this a republican system? It is strictly so, as long as they remain elective. And let me observe that an executive is less dangerous to the liberties of the people when in office during life than for seven years. It may be said this constitutes an elective monarchy! Pray, what is a monarchy? May not the governors of the respective states be considered in that light? But by making the executive subject to impeachment, the term "monarchy" cannot apply.  [Madison's entry for June 18]

[N.B. In Federalist Papers 69-77 Hamilton will later make a defense of the Executive branch of the final draft of the Constitution. See below.]

First we see that the concept of a monarch or monarchial power exists to some extent within the American political tradition. This faith of the Federalists in the rule of the few or the one contrasts the Democratic-Republican faith in self-government. This famous split became personified in the clash between Hamilton and Jefferson during the 1790s, the latter accusing the Federalists of "monarchism" and designing to lessen the dependence of the Executive and of one branch of the Legislature on the people. . . so as to reduce the elective franchise to its minimum." [3] In Jefferson's thinking, such a hierarchy would inherently gain power (an observation akin to Franklin's) and as such Hamilton and the Federalists' setup was inherently anti-republican and illiberal. (Not that he thought the executive should be powerless, certainly not after his tenure as Governor of Virginia, an executive office which had no veto authority.) Let us examine the specifics of Hamilton's suggestion that we may perhaps what he hopes to achieve through monarchy by means more amenable to liberal republicanism.

Hamilton introduces two key features allegedly only the monarch can bring to government: insulation from foreign influence and stability. (Let us pass over his suggestion that one body of the legislature also be constituted for life.) Again we see as in Aristotle and Hobbes that the king ought to share in the interests of the people, and like Hobbes, Hamilton seems to think the monarch, at least the English one of not all monarchs inherently, shares most in the interests of the people.

First let us examine the issue of whether the president might be more fit to conduct foreign policy matters .Now Hamilton was under the impression term limits would limit the president's ability to grow rich and thus make him susceptible to foreign bribes. Now this is reducible to a simpler one which is harder to answer: who is more likely to seek riches, who is already rich or who is poor? Can anyone definitively answer such a question without offering a subjective answer about the nature of man and a prognostication about what he is likely to do? There are examples of both the poor who seek riches and the rich who seek riches. We cannot even conclude with certainty that those who have riches sought riches. We may only conclude, with little use, that those who seek riches seek riches. Perhaps a compromise would be a post-service stipend for the president for the duration of his life.

Is it the case that a monarch is less corruptible, by foreign or otherwise specialized interests, than a congressional body? This is contrary to Aristotle's claim that "the man are more incorruptible than the few as they are like the greater quantity of water which is less easily corrupted than a little." [Nichomachean Ethics, III.xv] Likewise we have Aristotle's claim that the individual may succumb to passions whereas the odds of a deliberative body of good men succumbing so are less. On the other hand surely we may see how certain members of a deliberative body could be bribed and their influence either corrupt others or generally stymie the efficient passing of good legislation. How is an executive less susceptible to foreign influence? First, he is under far greater scrutiny as the head of his branch. The whole nation scrutinizes him whereas congressional members tend only subject to the scrutiny of their constituents. (Even though sometimes they draw the attention they ought to, since they sit on committees with specific, national interests.) Second, the head of any institution by his excellence or at least his very singularity becomes most intimately associated with the most dear notions of the institution. Third, the prestige and remuneration of the post (during and after service) should outweigh any other potential attractions. As such the executive is indeed more suited toward conducting certain duties which should thus be delegated to him.


Now in what manner would the interests of a republican "monarch" be tied to the will of the people? Absent autocratic authority, how would he? Perhaps again it is the feeling of the people that the leader embodies certain ideas. Perhaps it is the fact he is elected by the people, though the college of electors in fact makes the choice. If that is the case, making him leader for life would reduce his ties by eliminating his need to gain popular support and get re-elected. The system of term limits works well here, forcing the president both to gain popularity to get reelected but rendering him eventually ineligible.


Now we may ask if the executive is inherently more stable. This virtue would again be diminished by term limits. With them, the executive is only more stable insofar as the legislature is constantly considering new legislation and the executive creates no legislation and only continues to carry out existing law. Also, less tangibly, the symbolic nature of the office is tied to unchangeable ideas.

[Now you might also say, "Look how frequently members of Congress get reelected, and reelected with great ease at that. We have achieved stability by doing what Hamilton suggested." Yet this is a stability generated not by a deliberate feature of the system, but by accident (albeit one shared by all democratic and republican government) which is that the government relies on the people to feel they ought themselves directly take part in it. This accident might be positive if it is because the people are desirous of increased stability but dangerous if it springs from a disinclination toward self-government. If this disinclination is broad amongst those who might be good representative-delegates, one can easily imagine the dangers in the adage, "If good men do not take up the burden of office, others will." coming to pass.]

In Federalist 70 Hamilton systematically explicates the virtues of the current executive system. He notes that energy (we might call it more clearly expediency) is the advantage of the executive and expediency is achieved by:

1. unity
2. duration
3. support
4. power

He argues then that these features would by compatible with and not at all detrimental to the essences of safety in "the republican sense:" due dependence on the people and due responsibility. To the first point he adds that a plurality of persons in the executive will A) impede expedience in emergencies, and B) obscure the truth in assigning blame to the executive (since if there are more than one they will blame each other.) This is a fine observation. The remaining three points are accurate in terms of kind, but one must examine them in the context of degree, i.e. how much of a duration, how much power, et cetera, which we have done elsewhere.

He also adds, concurring with Jean-Louis de Lolme (1741-1804. Swiss political theorist, scholar, and proponent of British, constitutional, balanced government) that "the executive power is more easily confined when it is one." Is this so? This matter seems of a sort akin to ours about what sort of person seeks riches. We may only note the classic cycle of the changing of governments, that tyranny begets anarcho-democracy, which begets oligarchy, which begets tyranny. With these seemingly irreconcilable and cyclical forces we see the wisdom of the system as it came to be, its maxim being that: any vacuum of power will be filled and then overfilled, and thus it is best the one branch should balance the other, supplementing what the other lacks, and checking what it might have too much of.



From what the executive branch ought to do we may also infer what it ought to refrain from. Most obviously it should refrain from interfering in the deliberations of the legislative body, which would give the executive power of both crafting and executing legislation. This must be avoided, though the executive must understand the legislation to know why or why not he ought to veto it.
Cicero puts this well:

. . . because he has to act as both the factor and the steward of the state. . . he needs to have a complete understanding of the highest principles of justice. because, without such understanding it is not within anyone's power to be just at all. And he must not be ignorant of the law of the land. But his awareness of it should be analogous to the knowledge of the stars that a ship's pilot possesses, or a doctor's knowledge of medicine. For both these professionals use their knowledge for their own practical purposes, without letting it divert or distract them from fulfilling their purposes.  [On the State, V.]

I would draw emphasis on the aspect of use in the context of our executive "carrying out" laws. Thus the president's knowledge helps the executive decide on how and if he should implement legislation (i.e. if he wants to veto it, though he can be overridden in which case he would have no choice.) While we have observed the president ought not have influence over the deliberations of the legislature, what influence is proper to him within his department? John Quincy Adams demonstrated the model:

Efforts had been made by some of the Senators to obtain different nominations, and to introduce a principle of change or ration in office at the expiration of these commissions; which would make the Government a perpetual and unintermitting scramble for office. A more pernicious expedient could scarcely have been devised. [Adams, JQ. 520-21]

Such an upheaval would occur at every presidential election and thus the president should avoid this, encouraging continuity, whenever possible, in his department. Speaking of upheaval, we must consider term limits, which are in fact upsetting and not beneficial for stability. They prevent, though, the post of the executive, and its associated symbolism and prestige, from becoming tied to the person and not the ideas themselves. Also, limited term prevents power arrogating to him from throughout the executive branch. But, with term limits for the president and a congressional body that can also change have we not enough stability?

By its nature, it reviewing law only for legality and not desirability (like the executive), it is the most stable branch and the one most conducive to a long tenure for its members. It is powerful yet limited by being highly focused. It achieves the stability the executive might and has under other constitutions, but without the dangers of degenerating into despotism by being of 1) focused and not broad power, 2) impartial, 3) with power diffused amongst several members, 4) slow moving, being primarily an appellate court which must inherently review errors of law or procedure, with such necessitating much scholarship, and 5) by being varied in composition "sometimes but not too frequently" as justices retire.

In Thoughts on Government Adams stressed the importance of this body:

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. . . Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices

Thus does the judiciary prove to be perhaps the most integral provider of stability and a most profound check on power.

Returning to considerations of the executive, we see that an "Adamsonian" disposition towards his own branch creates continuity of the means of carrying out legislative policy, especially continuing stable foreign relations. The veto power allows him to slow legislation suddenly pushed through Congress that is at odds with the long-term goals of the government, that has been rushed through the body in haste, or that has been rushed through the body because of popular fervor and not because of its merits. The congressional power to override the executive veto permits the voice of the people from being squelched by the will of one man and allows an emergency measure to be passed. [4]

The president's ability to appoint Supreme Court Justices who themselves have lifelong tenure creates continuity as well. Also, the executive is more similar to the judicial than the legislative branch, thus the executive is better equipped to evaluate candidates. (This is because it is the job of the judicial and executive branches to perceive the unintended consequences of legislation whereas the legislative body often sees only the results they expect their legislation to produce.) Additionally, the judicial candidate's position standing in need of  senatorial approval  not only checks executive authority but ensures the legislature will be satisfied that the laws they themselves authored will be comprehended by the court justice. The fact that both the judiciary and executive may review laws but that their reviews essentially differ in kind and not degree (along with the other inherent differences in the respective bodies) is an ingenious "split 'double-negative'" on the power of the legislature. [5]


Thus we have inquired into some of the fundamental principles of a monarch and an executive administrator in a liberal republic. We have reviewed what the American executive was hoped to be and not be, and we have concluded as finitely as possible what it should be as a branch of a liberal constitutional republic. In the future we may discuss what when, how, and why it has differed.

Footnotes

[1] In a letter to Isaac H. Tiffany (August 26, 1816, M.E., XV, 65-66) Jefferson wrote of the tendency of the pure democracy, when it encounters difficulties, to revert to despotism, the people in "an abandonment of themselves to an aristocracy, or a tyranny independent of the people."

[2] Letter to Dupont de Nemours, Poplar Forest, April 24, 1816, M.E., XIV, 487-88.

[3] Letter to John F. Mercer, Esq., Washington, October 9, 1804, M.E., XI, 54.

[4] Madison evidently did not think this power and this participation in the making of laws to be an amalgamating of departments or inconsistent "with the theory of free constitution." See the notes on the constitutional convention for July 17, 19.

[5] It would be fruitful to review the debate on this issue, which can also be found in the constitutional convention notes for July 17, 19.

Bibliography

Adams, John Quincy. Memoirs. VI.

McCullough, David. John Adams. Simon and Schuster. New York. 2001.

Madison, James. [Record of] The Constitutional Convention.

Malone, Dumas. Jefferson the Virginian. Little, Brown and Company. Boston. 1948.

Malone, Dumas. Jefferson and the Rights of Man. Little, Brown and Company. Boston. 1951.

Wood, Gordon S. The Radicalism of the American Revolution. Alfred A. Knopf. NY. 1991

Recommended

Ablavsky, Gregory. Republican or Royalist: A Lesson Plan on Hamilton's Alleged Monarchism and the Partisan Politics of the 1790s. The Gilder Lehrman Institute of American History. New York, N.Y. 2009. http://www.gilderlehrman.org/teachers/scholars/HSP04.AH1.Ablavsky.pdf