Brief Notes on Rhetoric and Argument

If you read enough Classical literature you may, as I have, become a bit of stickler when it comes to argument and rhetoric. Read any Classical literature, let alone Demosthenes and Aristotle, and you are bound to notice how prominently public speaking and "making your case" figures. Making your case and making it well was an integral part of the Greek world, from Homer through the Athenian democracy, and the Roman world from republic through empire. From the great argument between Agamemnon and Achilles which opens the Iliad, through the orations and debates put down by Thucydides from the Peloponnesian War and Demosthenes' denunciations of Philip of Macedon, to Cicero's great corpus of speeches, rhetoric was an integral part of the Classical world.

For once, and perhaps only once, I will spare you readers some details. Today we will not go on a journey through time and trace the 3,000 history of rhetoric. We won't talk about Tisias and Corax and the birth of rhetoric, rhetoric vs dialectic, sophistry, Demosthenic use of articular infinitives, Ciceronian prose cadences, or the Aristotelian enthymeme. Maybe we will discuss these things one day, sooner if by popular demand (ahem!) but not today. In fact it is no enlightenment or inspiration which brought  me to discuss rhetoric at precisely this time.

As I said, knowledge or familiarity with the aforementioned makes one rather conscious of actually proving ones points when one attempts to make them. (It also tends to embolden the perpetually quarrelsome.) Such also tends to make one cognizant of deficiencies of argumentation where one finds them, which is in quite many places. One typically finds such errors in political articles, but sloppy arguments really do pop up everywhere. Many have been popping up of late and I thought it would be instructive and a little fun to re-post it here and go through it in my customary way. Unfortunately I cannot reprint any here in sufficient length to make my method useful and I don't think the author or publication would consent to re-print it here for such a purpose.

Instead, then, I thought I would share some of what I do with and to my own writing and essays I am analyzing. The following is not comprehensive, rather it is just a quick run through of my default steps in analyzing an essay. Some of these procedures are obviously not needed for needed for every essay.

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If it is not my own writing I copy and paste it into a word processor witch which I can highlight text. I think most any will do this.

1) Re-read the article, not skipping anything.

2) Attempt to find the point of the essay. This is sometimes impossible but this is just a preliminary look. If you cannot find it, attempt to synthesize it and formulate it into as succinct a statement as possible. (Because x, therefore y.) In a complex essay, find the point of each paragraph.

3) Strike through (example) everything not related to the author's point or those which are clearly irrelevant.

4) Consider definitions, i. e. what words actually mean. If an author's definition of a word is unclear his entire enterprise is on shaky ground. Highlight key words in red and ask yourself how the definitions of these words affect the argument.

5) Highlight in one color all of the assertions, i.e. "X is blue." Aside from the extremely obvious, (The sky is blue) remember that the author has to prove everything in this color. If you find very many assertions the essay was probably written for someone who already agrees with the author on a number of fundamental points.

Yet it is not possible in every essay to lay out one's first principles and build them up from there. Nonetheless every article has such principles and the author ought to admit them. As such, then, it is often what is unwritten which dictates the direction and/or conclusion of the article. Because of this it is desirable one should know the first principles of the author as well as possible.

One also ought to consider the nature of the argument. For example, take the two main types of arguments:

1. Didactic arguments reason from the principles appropriate to each subject matter.
2. Dialectic arguments reason from premises generally accepted to the contradictory of a given thesis.

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Now such should pare down the essay to the actual argument, but not all arguments are created equal. I find the following short list on spurious arguments and quasi-arguments from Book II of Aristotle's Rhetoric quite handy. I have skipped a few since they are included above.

1. assert of the whole what is true of the parts, and vice versa
2. painting a colorful picture of the situation without proving facts
3. using single instances as proof
4. representing the accidental/incidental as essential.
5. representing as causes things which are not causes but simply happened along with or before the event in question
6. leaving out mention of time and relevant circumstances.
7. confusing absolutes with particulars (e.g. since improbable things do happen, it is probable improbable things will happen, thus what is improbable is probable.)

Of course not all arguments are born bad, some go bad and some are not appropriate for the given  situation. For example:

1. Deference to authority or precedent relies on the truthfulness of the authority or precedent.
2. Arguments based on probability, like proof a fortiori (if a quantity does not exist where it is more likely to exist it does not exist where it is less likely), rely a great deal on the relative risks of the situation.
3. It is important to define your terms, yet one can dishonestly (or conspicuously) do so, for example excluding all of the negative aspects of a word from your particular use of it and ascribing them to an opposing idea. As Aristotle said, "a definition is a thesis." [Post. An. I.ii. 72a], i.e. the laying down of something, not an affirmation of its existence.
4. Sometimes actions may have both good and bad consequences.
5. If two results are the same, their antecedents are the same. (Maybe, but not necessarily.)

One must also consider supporting data and its representations such as charts, graphs, et cetera. Polls and other statistics are notoriously malleable, but also consider presentation: is the presentation of the data unnecessarily complex or conspicuously simple? Is the data up to date? Does it have the necessary context? What were the methodologies for collecting it? What conclusions, mainly yours but also contrary ones, can reasonably be drawn from it? Indeed it is difficult and often impossible to verify such data, but if you don't. . . Of course there is a degree of trust between author and reader, and we assume when we see quotations, for example, they were not taken out of context.

Lastly, one ought to consider the counter-arguments the author addresses. Does he address any? Does he only address ones which are obviously foolish or fallacious? Does he attack the person who made the argument instead of the argument itself? Ideally the author should address all of the best arguments to be made against his case. In making ones case one invariably comes up against potential contrary positions, but if the author hasn't seriously and rigorously attempted to make his case, then he probably won't foresee any objections to it either.

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Happy arguing!

Manners, Duties, and Society

"Manners are of more importance than laws. . . Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in." [1]

These words from Edmund Burke no doubt sound stodgy and exaggerated to us today. Important as they may be, how can manners not only be so very important, but more important than actual laws? According to Burke manners are important in at least two ways: somehow in themselves and insofar as they are not laws, i.e. have no threat of force behind them. Burke in fact adds a third, that they are pre-rational. Let us examine these claims and find out if manners are as important as Burke says.

First let us look at the claim that manners are in themselves important. While we may deduce their importance from Burke's own statement, we in fact see his point much earlier in Giovanni della Casa's Renaissance treatise on manners, Galateo. The importance of manners lies in the frequency of their use:

. . . everyone must deal with other men and speak to them every day; thus, good manners must also be practiced many times daily, whereas justice, fortitude and he other greater and nobler virtues are called into service much more seldom. [2]

Indeed, manners are with us all of the time, applying everywhere. Not all social intercourse is of great importance and calls upon us to make critical and life-changing decisions. Nonetheless these little interactions can be pleasant or unpleasant. It is truly remarkable how much rudeness, inattentiveness, and surliness can offend and wrack the nerves.  The essence of manners, according to Della Casa, is taking into consideration other people's pleasures. Extravagant or improper dress, over-fastidiousness, inattention, and coarse language are all subtle disdains for others. Yet extreme sensitivity is improper too, since living with such a person is tantamount to servitude, like living amongst many fine glasses, afraid to make a move. Breaches of manners, then, are instances of saying "I'm more important than you" but they are more. These breaches are more, and more frustrating and unpleasant, because they appear arbitrary and not calculated. For example, the person blasting music from his car stereo is not saying, "Listen to this great music; I have such great taste you should listen to my music!" He is saying, "I'm listening to my music how and where I want and you don't figure into my world at all." Understood as such, lack of manners is incompatible with, and detrimental to, anything to be called society. It is surprisingly easy to ignore someone with bad ideas, quite hard to ignore someone who lets a door slam in your face. Manners are thus omnipresent and practical.


Let us now consider Burke's point that manners have a unique function insofar as they are pre-rational, that is we do not really think about them or are taught how or why to be respectful of them. This is likely true insofar as we observe them before we fully comprehend them, but in the end is it so? Not if they are indeed a segue into learning duties, for learning manners is a step toward assuming duties. We would seem to need finer definitions of the fuzzy terms "manners" and "duties." This task is somewhat complicated by the common usages of these words and by the fact the concepts behind them are inextricably linked, and in some cases seemingly overlapping. Manners can either be simply a way of doing things, i.e. a manner in which something gets done, or a particular way of doing things, i.e. a way known to be good. Thus "manners" usually means "particular manners" or "good manners."

How should we consider manners then? First and following Aristotle we should note that we ought not to expect more precision in our discussion than the material permits, as such we should be content with some necessary generalities and exceptions. Second, it would be pedantic and impossible to attempt to redefine the word "manners" for analysis, thus we should use the common usage in our discussion.

Let us say then manners have two aspects, the practical and the dutiful. The first sense is unique to manners themselves. Their ability to smooth relations and make life pleasant is practical. Yet why are they so and why do we praise people with them? Only because they are themselves manifestations of duties. For example, we consider it good manners to act a certain way toward one's parents, yet such is only so because it is thought to be a duty to be pious towards them. Piety being a broader concept which encompasses manners towards one's parents. Without concepts of duties, manners are simply empty gestures. As such without a concept of duties it would be indeed unsurprising for manners to endure since anyone can see they have no purpose any longer. (Besides their practical aspect, of course, which I do not expect as many people would notice.)


To learn manners, then, is to begin relationships with others, relationships of particular natures. We learn how to behave toward parents, toward grandparents, siblings, friends, neighbors, fellow citizens, each relationship being somehow unique. We may observe that since we learn manners as children incapable of actually performing duties, manners come first as affectations and precursors. As such then we may see each manner as connected to some duty.

We assume the responsibilities of duties by being born to a particular people, most centrally to a family, and learning how, i.e. the manner in which, to relate to them. Assuming duties toward them is something necessary, quite obviously, for the continuance of society. In a simply practical way, the assumption of familial duties is practical: no one can take care of himself as a child and as an old man, times when your parents and children ought to take care of you. Of course such is not always possible, and in such cases extended family and friends and neighbors help you. The authority to carry out these essential tasks is thus quite diffused, in unpredictable and imperceptible ways, amongst family and neighbors, forming a complex web of obligations, with the individual assuming various duties towards different people: friend to friend, son to parents, neighbor to neighbor, and so on. These complex webs give communities, both families and towns, unique characters.

Thus manners and associations, for example those familial ones which exist by nature, are inextricable. Manners are the immediate facilitators of duties.

None of this is of course codified anywhere and there is no legislation to turn to. It is simply customary, or custom. The best analogy here is that of the mores maiorum of the Romans. The customs of the Romans' ancestors were preserved not primarily through law and enforcement but by the impetus of the feeling that they had to be preserved, that such was simply the way a Roman ought to do things. How else would you do it, how else would a certain thing get done? The Roman way, this way.

It would be foolish and impossible to consider transplanting Roman virtues to the present day as is, though inquiry would be instructive as many of Rome's problems then are ours now. To that end let us briefly look to Cicero, who wrote de Officiis (On Duties) in the last year of Cicero's life in 44BC. We ought first to note that the Latin "officiis" and English "duties" do not quite carry the senses of consistency, propriety, and rightness of the Greek καθηκόντως (kathekontos.) Looking at Cicero's whole program is beyond our scope here, but there is one argument quite relevant to our Burkean concept of rights, in which Cicero contrasts the notion of a voluntary protector and personal domain and the ruler, or the notions of patrocinium (defense patronage), dominium, and imperium (rule.) C. N. Cochrane aptly summarizes the implications of Cicero's outlook:

From this standpoint there can be no question as to the ultimate residence of sovereignty; it is and must remain with the populus or organized community whose primacy is, thus, theoretically secure and final. This community is the generative source both of imperium and dominium, the former the principle of public order, the latter that of private right. But, in contradistinction from dominium, imperium is non-hereditary and, so far from conferring any title to ownership, it exists in order to protect owners in their titles. Accordingly, to transform it into an instrument of possession is to deny the fundamental idea of the commonwealth and to confuse it with those forms of barbaric kingship for which no such distinction exists. On this fact depend the scope and character of magisterial power. The magistrate is charged with the maintenance of public order and, for that reason, armed with coercive authority. But that authority is limited by the terms of commission; to abuse it is to create a right of resistance on the part of the sovereign people whose 'majesty' is thus infringed (laesa maiestas populi Romani). A situation like this is, however, pathological; it develops only when terrorism (vis et terror) has replaced the true basis of political cohesion, viz. consent (voluntas.) [3]

Aside from the republican, legal-political, natural rights, and what someone today would unavoidably characterize as Jeffersonian nature of these ideas, Cicero here acknowledges spheres of influence. Namely, that the domain of the family is not that of the state. The former, natural and hereditary, is the domain of our obligations to one another, and the latter positive, of legal maintenance, i.e. custodianship. The mixing of these spheres is destructive of families and obligations. Such a mixing could have a variety of causes, most obviously a broad failure of some highly necessary obligation which then gets taken up by the state or an outright usurpation by the state. In his essay on Burke, Ian Crow nicely summarized this transformation:

Of course, as our natural sympathies and associations are swept away there is one relationship that remains inviolable–that between the liberated individual, and the source of his liberation, the central government. If this is a contract, it is hardly one between equal parties! Nevertheless, the trappings of this liberation are likely to be present in force: written constitutions, paper rights, and all the other guarantees that lead us to equate legitimate authority with rationalism on parchment and, by a trompe l’oeil, the omnipresent government as the only legitimate source of that authority.

While the fight for influence, when it happens, turns upon this central power, the collapse of our true sources of liberty proceeds almost unnoticed. Burke saw a resistance to that centralism as built into our natures, but it is also a resistance rooted in our local affections: “The strong struggle in every individual found to belong to him and to distinguish him, is one of the securities against injustice and despotism implanted in our nature.” [4]

Indeed exchanging one's unwritten laws, customs, traditions, and manners for some theoretical guarantee from the government is a most unwise trade. First, it is depersonalizing. Instead of an individual personally carrying out duties of, say charity, toward his neighbors, the government "liberates" him from this duty. Now with the government "taking care of" charity, what is the relationship amongst neighbors? Between them and the state? The government is a sort of proxy in between relationships, usurping power of money and of loyalty. And as we said above, without duties, why should we expect manners to endure? Indeed having some unwritten code of living together, i.e. a society, is preferable to having everything legislated and administered.

In Rhetoric I.xiii Aristotle categorized these unwritten laws into two types, one essentially of honor ("springing from goodness or badness") and one of a practical nature, supplementing the written law. The latter, what he calls equity, is a similar smoothing of relations, asking us to distinguish between criminal acts and instances of misfortune and poor judgment." Equity bids us be merciful to the weakness of human nature; to think less about the laws than the man who framed them, and less about what he said than what he meant." Equity relies on similar conceptions of life, i.e. literally common sense, and good will. That it does not legally bind and has no threat of physical force behind it is significant,  and abiding by such ad hoc judgments reflects a desire for harmony and not simply requital. It requires, though, one to acknowledge bonds with others.

A hyper-litigious society in part is one whose people have forgotten how to relate to one another. A society with a massive welfare state is one whose people have either defaulted on their social obligations or had them usurped, in both cases to the detriment of liberty and community. Without duties, the end reason for manners, manners are mere pleasantries and people will sense their superfluousness and not bother with them. The result in both cases is a people who can only relate to each other through the state, or not at all.

A solution, or at least a step in the right direction, would be to suppress the urge that "there ought to be a law for. . ." and simply in one's personal life carry out one's duties. The difference on man can make not only by doing good but by being known to be good is quite remarkable.

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[1] Burke, Edmund. The Works of the Right Honourable Edmund Burke: A New Edition, v. VIII. London: F. C. and J. Rivington, 1815. p.172

[2] Eisenbichler, Konrad and Bartlett, Kenneth R. (trans.) Galateo: A Renaissance Treatise on Manners by Giovanni Della Casa. Center for Reformation and Renaissance Studies. 1994.

[3] Cochrane, Charles Norris. Christianity and Classical Culture. Oxford University Press. London. 1968. p. 57

[4] Crowe, Ian. Edmund Burke on Manners. Modern Age, Volume 39, Number 34. Fall 1997. [PDF] [Journal]

Recommended Reading
Free (PDF) via Google Books

Burke by John Morley.  [Link]

Reflections on the Revolution in France by Edmund Burke [Link]

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

On Television

In a recent episode of the web program "Poliwood" screenwriters and Hollywood veterans Roger L. Simon and Lionel Chetwynd both concluded television programming is of a high quality today. Broadly speaking, anyway. I really could not fairly comment on such a statement because I watch practically no television shows. Yet I do not quite share their enthusiasm and this is mostly because I find television as a medium is really not well understood. There seems to be very little understanding of what the television medium is good for and what material is appropriate to it. Let us take a systematic look at television programming, aka TV.

First, what is the distinguishing characteristic of TV? Foremost is that TV is episodic in nature, consisting of many short episodes either 25 or 45 minutes in length. Second is that these shows are broken then into smaller bits of 7-11 minutes. This is the basic unit of TV and while some might criticize it simply for being, I will not. All art forms have their conventions, scenes, lines, stanzas, meters, et cetera. This is television's. Yet it does bear two faults. First is the persistence of the commercial interruptions and whirligigs on the lower third of the screen are so distracting and deleterious to enjoying the show it is surprising to me they are tolerated. Such tolerance, I believe, we owe mostly to habituation. Would anyone tolerate commercials in the middle of a movie, or between movements of a symphony? Since people time-shift their programming and skip commercials we will not belabor this point as we want to consider what TV might be at its best. Second is that this highly predictable unit creates highly predictable patterns of climax within the drama. This is both highly limiting for the writer and dull for the audience.

Let us return back to the length of the whole show, though, i.e. TV's episodic nature. Episodic content has been derided since Aristotle, who called episodic plots "the worst" for their lack of probability and necessity in the sequence of the episodes and their tendency stretch out a plot beyond its capabilities. (see Poetics, ix.) "Types of plots" and their hierarchy is the subject of its own and substantial essay. We may consider it at a later date. Let us instead focus on Aristotle's point that a given story, speaking generally, will have an ideal form. For as the musician has at first a highly abstract musical idea and then chooses the best structure and instrumentation to express it, so the author must choose the best form for his story. On the other hand we may observe that every given work of art has an essence and this essence may be expressed in different mediums, with the effect of generating variations on the main theme. This perspective is summed up by the [perhaps apocryphal] quote from director Stanley Kubrick, that "If it can be written, or thought, it can be filmed."

Adopting this perspective we may then ask "Is there an idea, or at least an unacceptable form or artistic expression for a given work?"  This is impossible to assess without creating a taxonomy of plot types, though we may make a few general remarks: that abstract "stories" are suitable toward musical expression, less abstract but still general and concise concepts and personal statements for poetry,
plots that take place over the course of one day suitable for the stage, spectacle for film. . . and what for television?

Let us consider some existing, common TV genres. Two common TV species are the "Wagon Train" (i.e. a journey through a strange place) and "the [wacky] adventures of. . ." These genres have had countless TV incarnations and are perhaps the most appropriate for episodic expression as the drama of the episode is self-contained. As such they are a good form for morality plays and fables. The only commonalities from show-to-show are the characters, who never undergo any changes in this genre. This genre is commonly called the sitcom. The same is true for the similar genres of the police procedural or courtroom drama. The main problem with this particular style is that it is essentially the same plot over and over again. This fact coupled with the fact that the characters to not undergo any change makes the show dull and repetitive after a point.

Yet there are many TV shows and many in which the characters do change. These shows have several factors to balance: 1) crafting a sensible plot for a single episode (i.e. creating a self-contained drama), 2) crafting a dramatic arc over several episodes (i.e. creating one large drama, since as Aristotle says a proper drama consists not simply of a variety of things one person did, but a variety of significant actions and events, i.e. significant to the theme/moral/point of the story), and 3) working within the time limitations of a) the 7-11 minute blocks of individual episodes, and b) how many episodes they can/must make. As you might imagine successfully balancing these variables is quite a feat. The fact that episodes are written one at a time, often if not usually without a plan for larger story arcs bodes ill for achieving goal No. 2. The fact that the length of the season is not determined by the writer, with the show either being canceled too soon or extended beyond the limits of the material bodes ill for achieving goal No. 3. That TV shows are often canceled early in their run is no surprise, but also unfortunate is when popular shows often continue beyond what they ought to.

The last great challenge of episodic content was voiced by Edgar Allen Poe, who stated episodic content inherently produces no sense of unity for the sum of the episodes. Since they are spread out they cannot achieve the impact that a single event, like a short story or poem, can. Poe also says that certain classes of prose require no unity and uses Robinson Crusoe as an example. The parallel between Crusoe and episodic TV content is fortunate. Such is true and brings us to what I believe is the heart of television's appeal: the passage of time. Poe did not think any benefit could counterbalance the loss of unity attendant spreading out a story into multiple sittings.

Yet the ability of television to reach the viewer weekly, potentially for years on end, is exceptional. Because of this, people, consciously or not, essentially perceive TV as real at some level. Listen to people talk about television characters and how frequently they bring their favorite characters up. This is possible first because of the temporal aspect of TV we already mentioned and second because of the commonplace element of TV. No matter how much one is attached to certain historical or traditional dramatic figures, their remoteness limits how often we relate to them. What TV inherently loses in unity its structure then it inherently provides in apparent veracity. The obvious but extreme case of "soap operas" is the clearest example of this phenomenon. These lives go on and on, paralleling ours for years. (Such shows also have the most banal plots and the plots are stretched out immeasurably beyond their proper duration.)

TV being a young medium we essentially have no barrier in relating to it: it exists in our world. We are not distanced by differences of dress, language, or culture. It progresses with us in our lives unlike a single, self-contained event like a Greek drama. Aside from fantasy and science fiction shows, TV programs are also usually plausible, or more specifically they depict events and places more or less common to us. People know what court rooms, hospitals, and sitcom locales look like and we relate to the quotidian situations most readily. In contrast even "plausible" dramas in the forms of plays and films usually depict scenes and situations we have not been in.

As an aside, one might make a similar point about video games. While being able to make certain moral choices in a game increases identification with the character and situations, having to solve puzzles and perform mundane tasks like walking around diminishes the overall impact of the story.

Above we observed: "a series of events that befall one person do not necessarily make a dramatic plot." TV writers observe this insofar as some of the episodes are self-contained and others have permanent effects on the character and plots which will be developed over time. This blending can be dramatically effective but it also adds to the element of veracity we perceive because in our own lives some days are normal and others (and other events) more broadly significant. Is this mixed style to be praised? Let us perform a little test. Consider your favorite story, a movie or novel or anything. Now consider the main character. Would that movie or novel be enhanced by adding dozens of incidents that do not, or barely, affect the plot? Sure you might feel like you know the character better because you remember when he argued with his wife, was in a car accident, and so on? Of course not. On the other had a series of relevant episodes depicting character-forming struggles might. Veracity then is by itself not a virtue, but an element of TV, potentially useful to great effect. Thus what the plot loses in unity by expansion it does not automatically gain in significance by its veracity. Rather it must use its episodes toward a larger dramatic plot, otherwise it is no better than the "adventures of. . ." species of television.

As we have said some plots then may support interspersed episodes while others may not, likewise a short-form treatment and a long-form treatment have different effects. Yet what stories require dozens and dozens of hours to be told? Miniseries and even films have achieved tremendous breadth of time with the durations of 2-12 hours. Films like Wild Strawberries, 2001: A Space Odyssey and TV miniseries like The Six Wives of Henry VIII, I, Claudius, and John Adams all have tremendous scopes of time. A film need only suggest the passage of time for the viewer to feel it. A filmed version of events that take many years need not in fact take many years. No plot needs so many hours as TV can provide, but rather may optionally be expanded and potentially with good effect.

Briefly we may discuss "reality TV" which may appear ideal insofar as it is indeed "real" and proceeds at a "real" pace. In fact it is the worst of both worlds, providing neither the accurate depictions of particulars (the function of history/documentary) nor the philosophic axioms of art.

TV then is not a poor or inferior medium but it simply tends toward vulgarity, banality, and repetition, yet probably not at a greater rate than any other form. Perhaps the quotidian element of TV is prone toward such things. TV is unique also regarding our expectations of it: we expect a great deal of constant programming content. This puts unnecessary pressure on writers. Good TV, and by that I mean a good TV show from the first episode to the last, is exceedingly difficult to do, consider again the challenges outlined in paragraphs four and five above, without such added limitations. Even if they are met, other than the purpose of achieving a quasi-reality the common "TV Show" structure has no purpose as no plot could require it. That which is not required, is extraneous, and that which is extraneous detracts. Dramatic long-form programming would  better served by the form of the miniseries, which balances concise drama with some and relevant episodic content.

While the miniseries seems to be less popular today, TV programming, especially on cable TV, seems to follow the same pattern, with short 10-12episode seasons. This is not a guarantee for success but it may help remove some of the bloat.

On Vacationing

Summer has arrived in the Norther Hemisphere and thus in the land of your humble blogger. School is out and many look forward to their vacations. There is something I do not quite understand about what we broadly consider vacationing. I dispute neither the importance nor pleasure of leisure time. Likewise even amusement is a sort of relaxation and is thus necessary. Yet vacationing seems to many to be something of special importance, but what and why?

The chief characteristic of the vacation seems to be a longer-than-usual freedom from one's duties. Most basically, then, a vacation is a lack, but a lack cannot provide a positive good but merely relief. This leisure, though, does allow people to pursue something for its own sake rather than out of necessity. People naturally have expectations about what such pursuits should be and do for them but a common response might be they hope to "enjoy" their vacation or something similar. We might divide the vague concept of "enjoy" into "pleasure" and "happiness." Considering the former first, all people aim at pleasure and all take delight in pleasing sights, sounds, and so on. We do seek it for its own sake and not to achieve something else. Yet pleasure is simply a favorable response to some stimulus to our senses. It is also temporary and fades as we grow habituated to the stimulus. If such is the essence of the vacation we should not be surprised to find most people wanting for something more soon after the vacation has ended. Indeed such is most common. Of happiness let us consider Aristotle's thoughts:

. . . everything that we choose we choose for the sake of something else–except happiness, which is an end. Now to exert oneself and work for the sake of amusement seems silly and utterly childish. But to amuse oneself in order that one may exert oneself, as Anacharsis puts it, seems right; for amusement is a sort of relaxation, and we need relaxation because we cannot work continuously. Relaxation, then, is not an end; for it is taken for the sake of activity. (Ethics, X.vi. 1176b)

Happiness then does not consist in amusement, relaxation, or idleness. Aristotle argued it consisted in virtuous activity and most chiefly in a contemplative life. He also added, "in a complete life" since "one swallow does not make a summer, nor does one day; and so too one day, or a short time, does not make a man blessed and happy." (Ethics, I.vii. 1098a) Also happiness depends part on past acts, part on present ones, and part of the expectation of doing in the future. Happiness thus requires work and work over a period of time. More precisely then we might say it requires cultivation.

In his collection of writings commonly referred to today as his "Meditations," which we would understand better if we thought of them as "writings or exhortations to himself," Marcus Aurelius stated a similar position:

Everyone dreams of the perfect vacation–in the country, by the sea, or in the mountains. You too long to get away and find that idyllic spot, yet how foolish. . . when at any time you are capable of finding that perfect vacation in yourself. Nowhere is there a more idyllic spot, a vacation home more private and peaceful, than in one's own mind, especially when it is furnished in such a way that the merest inward glance induces ease (and by ease I mean the effects of an orderly and well-appointed mind, neither lavish or crude.) Take this vacation as often as you like, and so charge your spirit. But do not prolong these meditative moments beyond what is necessary to send you back to your work free of anxiety and full of vigor and good cheer. (Translation, C. Scot Hicks and David V. Hicks.) (Meditations, Book IV. iii.)

Whether it be toward pleasure or happiness, one ought to have an idea what one is intending to gain from a vacation, lest one be disappointed.

A Response to "Morals & the Servile Mind"

A Response to 

"'Morals & the Servile Mind' by Kenneth Minogue"

Kenneth Minogue has an excellent essay in the June 2010 New Criterion I have the pleasure of commenting on. Putting the author's obvious erudition toward fine use Minogue considers some of our societal woes in an uncharacteristically systematic and philosophical manner. To his additional credit it is imminently readable, so go read it here. I add a few observations:

Aristotle's notions of "slavery" are certainly off-putting to anyone today yet it is good to see Minogue unafraid to look into and learn from them. In Politics I.v the philosopher discusses how the soul rules the body with despotic rule and the intellect the appetites with constitutional rule, thus he "who participates in the rational principle enough to apprehend, but not to have, . . . is a slave by nature." This is not so very dissimilar from the modern notion of being a "slave of passions." This one might call, in Minogue's framework, an "internal compulsion." Thus one may be a slave to passion or a slave under an external force: one is still a slave. In our [classical]-liberal tradition we do not consider slavery innate but rather the rational principle innate. Framed as such Aristotle seems less foolish, still quite wrong, but not outlandish.

Consider now Plato's observation in Republic XXXI, that the many "constitutions" available to the "democratic man" creates a sort of anarchy of passions in him. Continuing this thread, Minogue's opening remarks echo Aristotle's ideas in Politics III.iii, which can be reduced to: sameness of state consists in sameness of constitution which consists in the virtues of the citizen. For both philospohers the problem is similar: the part [here, negatively] affects the whole. This begs the question: how can a man be virtuous when society contains bad people?

Yet where Plato seeks homogeneity Aristotle defends plurality, saying not sameness but what he variously calls proportionate requital/equity/justice binds a state together. With a wonderful metaphor Aristotle defends plurality and criticizes Plato for designing a system in which the "harmony passes into unison." Returning to our own liberal republican tradition, we may consider one of its virtues to be its inherent distinction between society and government, and that morality resides in the former and proportionate requital/equity/justice in the latter. 

Minogue makes an excellent point about morality (i.e. a specific morality) being achieved the only one with the force of law. Minogue writes:

Such an attitude dramatically moralizes politics, and politicizes the moral life. It feeds on our instinctive support for good causes. Yet it also suggests that the most important sign of moral integrity, of decency and goodness, is not found in facing up to one’s responsibilities, but in holding the right opinions, generally about grand abstractions such as poverty and war. This illusion might well be fingered as the ultimate servility.

Indeed. I was reminded of something I read just recently, James Fenimore Cooper in "The American Democrat" saying:

Party is the cause of many corrupt and incompetent men being preferred to power, as the elector, who, in his own per- son, is disposed to resist a bad nomination, yields to the influence and a dread of factions. . .

Party, by feeding the passions and exciting personal interests, overshadows truth, justice, patriotism, and every other public virtue, completely reversing the order of a democracy, by putting unworthy motives in the place of reason.

Thus we see that a particular morality today becomes a "cause" which once it achieves a certain mass gains a leader, which becomes a party, which seeks to impose the cause as law. This has two detrimental effects on both freedom and virtue. The first is is that it substitutes an external compulsion for an internal choice. By externalizing freedom you make freedom dependent on the virtue of others, bring us back to Plato and Aristotle's problem. Second, it substitutes the Aristotelian notion of virtue and happiness consisting in action for the same being simply holding the idea. For example, in the politically correct world it does not matter what you do so long as you carry the proper PC totems and assent to the "cause" of the day. Thus it actually diminishes the cause it proposes by eliminating the need for it to be fulfilled.

–

I would quibble with his definitions around freedom, myself thinking what Minogue states are subsets or inherent consequences of freedom but not the essence of freedom. One might say his points about freedom are the inherently political aspects of freedom. Overall though, this is a fine piece.

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