Executive function

I have just been conversing with one man, to whom no weight of adverse experience will make it for a moment appear impossible, that thousands of human beings might exercise towards each other the grandest and simplest sentiments, as well as a knot of friends, or a pair of lovers.

— Ralph Waldo Emerson (“Politics,” 1844)

The president, the headlines have said off and on for weeks, may or may not declare a national emergency. It’s an off-again, on-again kind of possible national emergency. How, some ask, could there be a national emergency if the president himself must mull over whether the situation around our southern border is, or is not, a national emergency? Isn’t a national emergency, by definition, compelling?

Not according to the president. What is compelling, the president wants you to know, is his will. The president’s mulling, and not events at the border itself, generates suspense and focuses our attention. The declaration or non-declaration of a national emergency will be as much of a “big reveal” as a presidential Supreme Court nominee. The president is deliberately equivocal, in this as in most other policy matters, contradicting and reversing himself so as to focus our attention on his will. We are being trained in autocracy.

The president, of course, has the Constitutional authority to make court nominations. He does not have Constitutional authority to override Congress’s action or non-action by declaring a national emergency at the southern border. But we participate with the president in overriding our Constitution’s balance of powers by understanding his role as that of “the decider,” in the words of President George W. Bush. Obama, after Bush, riled half the country with executive orders that, because they generally lacked constitutional authority, were easy enough for his successor to reverse. All of this is part of our tragic project of replacing our Constitution’s balance of powers with a hegemony of function.

Is the executive “the decider”? The issue predates Bush, Obama, and the current president, and even our Constitution. When Thomas Aquinas argued for the primacy of man’s intellect over his will, he described the will, in Hannah Arendt’s words, as “an executive organ, necessary to execute the insights of the Intellect” and subservient to that intellect.1 Our seventh-grade shorthand for our government’s separation of powers reflects this Thomistic understanding: the legislature is the brains of the outfit, and it makes the laws. The executive merely enforces what the legislature passes.

We’re losing our civics-class understanding of the executive. Our modern understanding of the executive is more like that of Duns Scotus, Aquinas’s near contemporary during the thirteenth century. Scotus believed that (again, Arendt’s words) “the Intellect serves the Will by providing it with its objects as well as with the necessary knowledge; i.e., the Intellect in its turn becomes a merely subservient faculty.”2 Scotus’s notion of the executive, then, is that of Bush’s “decider.” Because the president has become “the decider,” Congress is becoming merely one of the president’s advisory boards.

Both Aquinas’s and Scotus’s understandings were variations on Augustine’s theme: man is memory, intellect, and will. One can see these three elements respectively in our Constitution’s three branches of government: the Supreme Court (memory), Congress (intellect), and the presidency (will). By making Congress the first among equals, the framers expressed their preference for Thomas’s view of the intellect’s primacy.

Thomas’s view of the intellect’s primacy, for instance, shows up in our Constitution’s requirement that Congress declare war. The president and the Armed Forces in his charge then execute that declaration. But Thomas’s cumbersome balance between the powers of the intellect and the will seems outdated in our push-button-annihilation age. And national emergencies, even slow ones and nonexistent ones, seem to be going the way of modern wars, becoming strictly executive prerogatives to declare as well as to execute. Is our Constitution out of date?

Yes, fortunately: our Constitution was out of date before it was even ratified. The theory behind the American constitutional arguments leading up to the Revolutionary War, as A. F. Pollard has pointed out, “was essentially medieval.” According to Samuel Huntington in his essay “Political Modernization: America vs. Europe,” the American colonies maintained the Thomistic notion of the rule of law over the more modern and Scotian notion of sovereignty:

In seventeenth-century Europe the state replaced fundamental law as the source of political authority, and within each state a single authority replaced the many that had previously existed. . . . In America, human authority or sovereignty was never concentrated in a single institution or individual but instead remained dispersed throughout society as a whole and among many organs of the body politic. . . . The continued supremacy of law was mated to the decisive rejection of sovereignty.3

This medieval understanding, according to Huntington, led the framers to create three coequal branches of government with blended functions but balanced powers. Our president, though, if we may use Huntington’s distinction, wants to bring our government fully into the modern age in which sovereignty is vested in what was formerly a single branch of government.

And our government could become modern. Huntington, who wrote his influential essay in 1966, begins its conclusion with this warning: “Divided societies cannot exist without centralized power; consensual societies cannot exist with it.”4 We are a divided society. Our doom seems complete, and only love can save us. Just as one man must love himself to maintain a balanced mind, so our polity must recreate what Lincoln in his First Inaugural called the Union’s “bonds of affection.”

Love seems a naive concept with which to end a piece on politics. But Emerson ended his essay “Politics” with this very proposition: see the above epigraph. (Who was Emerson talking to? I’d love to talk to that man.) And Augustine said that his man of memory, intellect, and will couldn’t present himself as a single constitution without love:

This will of Augustine’s, which is not understood as a separate faculty but in its function within the mind as a whole, where all single faculties – memory, intellect, and will – are “mutually referred to each other,” finds its redemption in being transformed into Love.5

Covenants, such as our Constitution, are grounded in, and provide the grounding for, the rule of law. But constitutions are like marriage covenants: they happen only in love. If our people, as Emerson put it, “can exercise towards each other the grandest and simplest sentiments,” then perhaps we can covenant again and save ourselves from this modern scourge of one man’s will.

And my Augustinian prayer for our president is that his will would “mutually refer to” the other branches and parts of local, state, and federal government, and that his will would find “its redemption in being transformed into Love.”

  1. Hannah Arendt, The Life of the Mind: Willing, at 126.
  2. Id.
  3. Samuel P. Huntington, “Political Modernization: America vs. Europe,” World Politics, Vol. 18, No. 3 (Apr. 1966), at 382.
  4. Huntington, supra, at 405.
  5. Arendt, supra, at 104.