I sing what was lost and dread what was won,
I walk in a battle fought over again,
My king a lost king, and lost soldiers my men;
Feet to the Rising and Setting may run,
They always beat on the same small stone.
– Yeats, “What was Lost”
Recently the issue of whether the rule of law measures all force or there is force in a fundamental sense – not merely temporal – prior to the rule of law came up again. This time the arguer for the idea that the rule of law is prior to any exercise of force was George Anastaplo, and his argument came directly from a close reading of the Constitution (sans Federalist).
The argument went like this: Article 1 establishes Congress as primary; the Executive is routinely considered to be merely that which executes the law Congress sets forth. That Congress ought to direct the Executive is clear from the fact that Congress makes the law, puts together the army however it wants to, commands the directly loyalty of the people via its immediacy in elections (contrast with the Electoral College) and can declare war and ratify treaties. It would seem on just reading the Constitution that yes, the Executive only exists to serve Congress, which in some sense is the will of the people. The last word on the Executive in Article II concerns impeachment and removal; Congress is not to be feared the way the President is, and it looks like continual challenges to Executive authority are welcome. Anastaplo also notes that there is a list of those who are sworn to uphold the Constitution in their oaths, and that list starts with the Congress, then moves to those in the State legislatures, and then and only then mentions the Executive and Judicial officers of the Federal and State governments.
Anastaplo is one of those people I agree with 99% of the time, but I really think his reading of the Constitution, while insightful, misses the point. Historically, the question is why the United States would have an Executive at all – it wasn’t like memories of King George were particularly warm in the former colonies. Furthermore, we do note the fear Madison has of legislative tyranny in Federalist 51 – he says there it is what he is most fearful of the government succumbing to – and Hamilton’s defense of an executive no matter what his temperament in Federalist 70-72.
But there’s a deeper reason to object to Anastaplo’s reading of the Constitution, which is that such a reading doesn’t make sense given the means the Constitution itself employs.
The Constitution’s means are purely formal. Branches of government are created and organized according to powers. The people involved could all be devils, and there would be no Constitutional prohibition saying “someone with such and such a character cannot serve” unless the people made it an issue. Now one can say “formal” indicates that the object of the Constitution is to secure freedom, as freedom is what we make of it. And if you think that, great, I’m not complaining. It’s definitely true, and I don’t want to say it is wrong.
It is incomplete, however. We have noted before that saying there are purely formal considerations in politics is the mark of the scoundrel, the mark of the man trying to avoid debate on issues of right and wrong so he can make the wrong thing look right. In this case, what is “dark” about purely formal means is that it covers up just how much everything is a calculation of power. Constitutionalism lends itself to the logic – which becomes conspiracy theory fast – that one’s freedom is directly contingent on the power another is perceived to not hold. The idea that anyone could use power responsibly, of course, is even more insulting, because that means some people might not be able to govern themselves.
Purely formal means are nothing but power calculations. Therefore it is difficult to say “Congress is primary” in some moral sense. In fact, it looks like Congress is primary because the people are primary, and that’s a mere fact, not something terribly positive (if it were something positive in and of itself, a Constitution for “a more perfect union” might not be necessary). When viewed that way, one sees there is at least one branch of the federal government opposed to the Congress (judicial review might not be Constitutional. It is expressly given to the Supreme Court as regards the states, but not expressly given as regards the Federal government), and there are state governments which, in having legislatures, make other claims to the people’s loyalty.
It looks like the question of the Constitution is how rule of law can be made sustainable in a democracy, and the answer is arranging forces in such a way that the forces conflict with each other. But once that is said, one has to allow that only takes care of problems within the system. What about problems from outside?
Giving the President full control over whatever armed branches Congress creates is not a small power. In fact, it means that the Executive is a bit more than merely “independent.” Anastaplo likes to make a lot of Article 1 being about Congress, but what about Article 2 sitting between Articles 1 and 3? That can’t be insignificant if the purpose of the judiciary is to preserve Constitutional form, and the Congress itself is the will of the people. Those two by itself should be rule of law; either the executive is irrelevant, or promulgation, instantiation and execution of the law, all tied up with the executive, mean that force – properly speaking – brings law into being.
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