By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears monthly [sometimes bimonthly]. He 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. He is the author of several books including The Transformation of the American Democratic Republic [Transaction Publishers: 2012], and most recently published an edited volume entitled Child Abuse, Family Rights, and the Child Protective System [Scarecrow Press: 2013]. This column originally appeared in Crisismagazine.com. All rights reserved.)
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Conservative voices are railing against excessive presidential power in this Obama era of government by executive order to advance a destructive leftist political agenda. Their criticism is “spot-on,” but they need to consider that the strong exertion of presidential power may be the best way after Obama to restore liberty and begin to mend the social fabric whose erosion has accelerated during his administration.
In an article I published in 1995 in The Wanderer, later reprinted in my book The Public Order and the Sacred Order, I argued how the sweeping exercise of executive power was perhaps the most certain way to begin to check the forces of cultural decay, protect the erosion of traditional citizen rights, and resist the overreaching power of the judiciary (which by that time had legalized abortion and since then has made sodomy a constitutional right, nudged us toward a right of same-sex “marriage,” and given the national government the power to tax economic inactivity and control American health care).
Not only have genuine rights eroded much more since 1995 — we now see the greatest threats to religious liberty in America since colonial times — but it’s increasingly clear that they will be sacrificed on the altar of ersatz ones like abortion and same-sex “marriage.”
In that earlier article I pointed to the history and tradition justifying sweeping executive power. In ancient Greece and Rome, in times of great internal turmoil or external threat, there was provision for giving almost absolute power to an eminent man to get them out of the mess. So, when the Athenians got into trouble they turned to the great ethical poet Solon and gave him near complete power. He made sweeping but wise reforms that ameliorated the tensions among classes that were threatening to break out into civil war. After the crisis passed, he stepped down and went into self-imposed exile.
The senate in early republican Rome twice made the statesman Cincinnatus dictator, once to battle enemy tribes that were about to swarm over the city and later to defeat an internal conspiracy. He assumed power just long enough to do his job, and then returned to the plow on his farm.
Both men were notable examples of self-limited power to our Founding Fathers. George Washington was sometimes called the “American Cincinnatus.”
Both Aristotle and John Locke said that in times of a breakdown in sound culture and the rule of law — both advancing in our time — executive power assumes greater importance. While Locke was the great promoter of parliamentary power against kingly absolutism, he nevertheless endorsed “prerogative power.” This gave the political executive the discretion to act for the public good “without the prescription of law and sometimes even against it.”
Actually, what’s needed right now in America is not really for the president to act outside the law, but to exert extraordinary power to uphold our fundamental law, the Constitution, and the principles of our tradition and the natural law that stand behind it. Edward S. Corwin, perhaps the greatest American constitutional scholar of the first half of the 20th century, said that our Founders believed that “a broad range of autonomous executive power or ‘prerogative’” was lodged in the presidency. He also emphasized that such power was not limited to wartime or even to situations of great urgency, but could be exercised so long as needed for the “public good.”
Theodore Roosevelt’s “stewardship” theory of the presidency embraced such a perspective. In his book, Constitutional Dictatorship, the famous conservative historian Clinton Rossiter showed how contemporary constitutional regimes have found it necessary in times of crisis to grant extraordinary power to government, especially executives, which for a time may even alter the character of the regime.
What is needed now is not necessarily the extra-constitutional means that Lincoln used to save the Constitution, but rather the utilization of powers that presidents possess but have seldom exercised or exercised to the degree necessary. While we are not witnessing wholesale disorder of the nature of, say, widespread violence in the streets — though we see massive amounts of more specific violence, as in abortion — we are certainly facing a deeper, cultural disorder that becomes more intense each passing year.
A new American Cincinnatus — a president who would exercise executive power to perhaps an unprecedented degree — could certainly act forcefully and decisively to protect traditional citizen liberties when the courts do not or when they themselves thwart them. In truly serious situations, he could refuse to enforce court decisions and even resist them when necessary.
He could act to ensure that true American constitutional principles will be upheld. Rebuilding a sound culture is not something one man can do alone, but he could take dramatic initiatives — even if resisted by the other branches — that could decisively set the country in that direction. In the long or even sometimes the short run people will fall in line and accept a new course that a leader insistently sets them on, even if they resist it at the start.
This would especially be so if he revived the educative function of politics, persistently making his case to the public in an understandable way while always remaining on the rhetorical offensive against his opposition and not allowing himself to be outflanked by it.
There are many specific things that he should do:
Reverse Obama’s executive orders; sweepingly abrogate federal regulatory law in many areas — starting with the HHS mandate, EPA overreaches, and a whole host of repressive IRS regulations — and simultaneously act vigorously to get the kind of control over the federal bureaucracy that presidents are supposed to have; put the federal government on a firm course of gradual disengagement from many programmatic areas by refusing to seek reauthorizations and progressively, but sharply, cutting down the federal budget (while at the same time making sure the human needs in question are addressed by actively working to build up civil society).
And: Interpose federal power to protect churches and defend religious and personal liberty against the encroachments of state agencies, such as when human relations commissions force Christians to violate their consciences by providing services for same-sex “weddings” and states subvert parents’ rights to make choices about medical care for their children (seen with reparative therapy for same-sex inclined children and the current outrageous Justina Pelletier case); even more critically, intervene with federal power — irrespective of what the courts say — to protect the Terri Schiavos of the future.
And: Outright refuse to carry out unconstitutional Supreme Court decisions such as U.S. v. Windsor, which mandated that federal benefits be given to same-sex “spouses”; take an aggressive stance against the UN and EU as they try to subvert authentic human rights in favor of the homosexualist and sexual libertine agenda; and, perhaps most dramatically, finally engineer a constitutional confrontation against the court on abortion.
Times Of Crisis
If, say, a state governor rounded up every member of a certain ethnic group and put them all in a concentration camp, would anyone seriously say that the president has no power to stop it if a federal court refused to? It is no different with abortion: A whole class of American citizens is summarily being deprived of a right even more fundamental than their liberty, their life. So, would a president truly be acting tyrannically by simply shutting down the abortion clinics?
If rebuking the Supreme Court seems extreme or unthinkable, we should recall: Federalist 78, which says that only the executive has the sword (that is, the enforcement power); Andrew Jackson’s refusal to carry out the court’s mandate in the Cherokee Indian Cases (which rendered it null); and Lincoln’s insistence that a Supreme Court decision, such as Dred Scott, did not bind the political branches for all time.
If it’s true that the president — and Congress, for that matter — may not resist the most blatantly unconstitutional decisions by the courts, we have become what the great conservative scholar Russell Kirk called an “archonocracy” instead of a democratic republic.
Executive power used in even an unprecedented way does not mean despotism. Rather, when exercised by a virtuous, capable man with a strong sense of self-limitation and an understanding that it is only temporary, it can be used to stop the slide to despotism. Building up a healthy culture and political order take much time, but if we don’t check — more, start to reverse — the advanced state of decay of our traditional liberties and constitutional principles, we may not get the chance.
In ordinary times, we can accept the interminable deliberation, plodding, excessive compromising, and willy-nilly decision-making of legislative bodies. It is different in times of crisis, where a civilization hangs in the balance and time is short — and, in any event, we can’t even seem to forge legislative majorities that will uphold our traditions and moral truth.
The question is: How do we find the new American Cincinnatus and get him elected?