More on Presidential Power as Rescuer: A Rejoinder

Joe Hargrave’s response in Crisis to my articlePresidential Power: A Rescuer, Not a Nemesis” was thoughtful, but contained certain problematical assertions. The first was his suggestion that my call for a new American Cincinnatus—an utterly virtuous, capable, and self-limiting leader who will exercise sweeping executive power in our critical current situation—is an “appeal to authoritarianism.” Authoritarianism means strong-arm rule. It opposes liberty, insists on something approaching unquestioning obedience, and suppresses political opposition. I made clear that, quite the contrary, what the strong—maybe even unprecedented—exercise of presidential power is needed for now is to restore our ebbing liberties and the democratic republic of our Founding Fathers.

Hargrave’s alternative is to call for the states to take the lead in resisting abusive federal power. I certainly agree that excessive centralization must be reversed and a sound notion of federalism restored; this is part of what the new American Cincinnatus is needed to do. Hargrave’s openness to state nullification of federal actions is based upon the false premise that the states and the federal government are equally sovereign. The supremacy clause of the Constitution simply defeats that argument. The best that can be said of the states is that they are semi-sovereign entities. The Republic established by the Constitution was something different than the Confederation that preceded it. A defining characteristic of a confederation is that its constituent elements can withdraw at will, for the very reason that each is sovereign. Both Abraham Lincoln and the great “states rights” figure Andrew Jackson before him maintained that that was not so. Lincoln prosecuted the Civil War to stop such a thing from happening and Jackson made clear when he send a warship into Charleston Harbor during the Nullification Crisis—yes, the threat of a state to nullify a federal policy—that he was prepared to do the same thing. Well short of nullification, the seminal 1859 Supreme Court decision of Ableman v. Booth—in line with the status of the states as semi-sovereign—said that state courts don’t even have the authority to overturn federal court decisions.

If Hargrave thinks that the states are even likely to mount a major campaign of opposition to federal overreaching and the destructive trends that have been part of it, he should consider that the states have shared the responsibility for the weakening of federalism and their own power. As I argued in The Transformation of the American Democratic Republic, one of the major reasons for this development has been federal grant-in-aid programs to the states. The states can hardly ever turn down federal largesse—even though it requires them to accept conditions that result in the trimming of their policymaking authority. Indeed, I mentioned that the president to be sought must put the country on the path of gradual disengagement from policies that have created excessive centralization and inordinate federal power. Further, the states that Hargrave wants to turn to as the leaders of opposition to destructive trends have, in many cases, helped to further them. This is seen with same-sex “marriage”—it’s the states that are legalizing it—and the Justina Pelletier case I mentioned in which the outrageously anti-parent child protective system—administered by the states, even if the federal Mondale Act was the enabler—was in full relief. Let’s also remember that it was the states that mandated the repressive Jim Crow racial system. While Catholics certainly stress the principle of subsidiarity, we shouldn’t have any illusions about the abundance of virtue at the local and state level.

While Hargrave may be correct that “the culture war issues” weren’t intended “to be under the purview of the federal government,” the fact of the matter is that many of them are—and federal government institutions have imposed on the country resolutions to them that are inimical to the natural law (as seen with the Supreme Court legalizing abortion, pornography, sodomy, and perhaps soon same-sex “marriage”). It is also with the current federal administration that we are seeing some of the most pronounced assaults on traditional liberties and constitutional principles. The reality is that it has to be at the federal level that the crux of the opposition to this must occur. One can talk all one wants to about nullification and the like, but it is almost purely in the realm of academic, theoretical discussion. If bringing forth the new American Cincinnatus will be difficult, it is at once unrealistic, unconstitutional, unhistorical, and dangerous to push for something like nullification. There certainly can and should be state resistance to the increasing growth of the federal administrative state (if state officials would be willing to wean themselves from federal dependency), but that resistance can go only so far. Nullification or interposition would not be legitimate, or even effective, in the very unlikely event things even got to that point.

To be sure, as Hargrave states, there is a distinct danger to relying on an unprecedented exercise of presidential power. Another occupier of the office who is not the man of virtue and self-restraint that a Cincinnatus or Solon-type of figure would be could then have an easier path to despotism. There is, however, another way of looking at it. As I said, this kind of president would take dramatic initiatives to restore our crumbling traditional liberties, compromised Constitution, and the very democratic republic that our Founding Fathers established (that I concluded in The Transformation of the American Democratic Republic has slipped away). Such an insistent effort—over, hopefully, a full eight years—will make likely (presuming he’s as competent, politically astute, and prudent as he will be exemplary of character) significant success in this. That will hardly lead to a despot after him; if anything, it will make this much less likely.

Further, if he begins the effort of cultural renewal—and there are innumerable ways, big and small, at his disposal to do this even if as I said actually changing a culture is much beyond one man—this will help to rejuvenate the societal norms that must undergird a democratic republic and make it additionally unlikely that despotism would emerge. By the way, we shouldn’t underestimate the influence that an American president can have in igniting cultural and moral renewal. Queen Victoria—who had virtually no political power—had a major influence on this in nineteenth-century Britain. Moreover, we should also keep in mind that I said that the Founding Fathers intended the presidency to be a very strong office and that many of the powers I argued he should exercise are legitimately at his disposal. If the Founders were willing to take such a chance, why shouldn’t we?

By the way, contrary to Hargrave’s assertion, I nowhere in the article called for the executive to “defy” Congress. I spoke specifically about resisting and opposing the courts, including the Supreme Court, in “truly serious situations” and when confronted with “the most blatantly unconstitutional decisions.” As I said, there’s historical justification for this. It’s just regrettable that it hasn’t happened more in our history. Congress can resist the Court as well—I first called for that in my book, Abortion: Politics, Morality, and the Constitution—but if it doesn’t have the will or is crippled by political polarization, the president doesn’t have to wait for it. If it contributes to the problem, he doesn’t have to go along with it. I state again: in critical times, it has been executive power that has been turned to because it is best in the position to act decisively, sweepingly, and with dispatch.

Hargrave is concerned that a new American Cincinnatus could not act effectively on cultural issues because the defenders of sound morality are in the minority. As I said, he won’t himself change the culture, but don’t underestimate the effect he can have. Also, remember that Obama hasn’t necessarily had a majority behind some of his deleterious initiatives but he nevertheless has pursued them. We don’t need to wait for some new broad national consensus—if it ever comes—to reverse them. Besides, as I said, when this new president moves insistently in a different direction after initial resistance people may begin to accept it. Also, let’s remember that the major effort of this president would be to restore traditional liberties and constitutional principles. We don’t need a consensus to justify that. They are the very core of our Republic, whether or not many people any longer wish to embrace them.

Finally, Hargrave thought that the “short-term gains” that could be achieved under a new American Cincinnatus would not be worth the “long-term risks.” I’ve already answered the questions about the risks. There is no sharp disconnect between the so-called short-term and the long-term here: If we don’t act soon to restore these traditional liberties and constitutional principles, there may not be a chance in the long-term. That may open the door to despotism. Also, should we keep biding our time to wait for the changing consensus on abortion to come to full fruition so that the Supreme Court will become more likely (we hope) to change its mind when we may—possibly—have a chance to save so many more lives so much sooner?

Relying on very strong executive power, for a time, in our current critical situation may be the most likely way to address it and effectuate the changes needed. Critics often provide no other solution and have almost a fatalistic assessment of our prospects, or else—like Hargrave— offer a solution that is not likely to be workable (or, similarly, successful) and presents the specter of greater dangers.

Editor’s note: The image above titled “Cincinnatus Leaves the Plow for the Roman Dictatorship” was painted by Juan Antonio Ribera in 1806.

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Stephen M. Krason is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists.

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