Speaking in Stockholm, our most famous Nobel Peace Prize laureate referred to the murder of hundreds of children in Syria and posed this sober question: "At what point do we say we need to confront actions that are violating our common humanity?" President Obama's call for military intervention is compelling because, as he said, "the moral thing to do is not to stand by and do nothing."
This moral claim is misleading. Although government may pursue humanitarian goals, it is not a humanitarian agency. The definitive and noble purpose of democratic government is civic, the service of citizens. The fact that action against Bashar Al-Assad may be a responsibility for the whole world distracts us from the fundamental issue.
Whatever choice Obama makes as Commander-in-Chief, as President his action touches the fundamental meaning of our democracy. That is where our attention should first be directed. The Citizen does well to ask some very basic questions. Is the President seizing an opportunity to advance our civic interests? Or is he opportunistically flexing or growing unchecked the power of his office?
If only we had a simple yardstick to measure the difference! What a relief that would be! But there is no such thing.
And yet the Citizen must measure and judge. Where shall we find the boundary between the opportune and the opportunistic? In this and in every other case that grey line of judgment emerges from within the context that defines presidential action, which is to say it is drawn somewhere inside the cauldron of national political forces. This diffuse sphere of activity depends upon--among other things--how the Citizen positions him- or herself within it. It is ultimately the judgment of the Citizen--our judgment--that determines the limits of power. The result is often frustrating and difficult and tragically insufficient. But this is what "checks and balances" comes down to.
Of the many factors that compose our judgment as citizens, two are important now in light of America's coming war with Syria. These two factors may seem different but in fact come together. One is the President's attentiveness to the Constitution in all its forms. The other is the character of the President himself.
It is impossible for the Citizen to know the inner soul of the occupant of the Executive office. We must take the President as a public character. Moralist cliches aside, the Citizen's first measure of presidential character is attentiveness to the Constitution.
This mixture has sometimes been called "republican virtue" and it has a long history. In pre-Socratic Greece the way that a citizen swore to be persuaded by the laws (homonoia) was the condition that eventually made the polis into the model for excellence in political life. A modern version of the same fundamental principle was famously reiterated in the eighteenth century by Jean-Jacques Rousseau and then transformed into a doctrine of secular philosophical ethics by Immanuel Kant.
In political matters, however, Americans have never much followed philosophers. Love for the law and dedication to the rule of law was already in that same period declared in the revolutionary spirit of Tom Paine and present, as historian Marvin Meyers taught us, in the "mind of the Founders."
Because this traditional and fundamental issue of constitutional character is profoundly related to the forms of political power in our democracy, it is bound up with the question President Obama has brought forward for public discussion: should American bombers wreak further havoc in Syria or not?
Again, citizens will not answer this question in any direct way. What we will determine is our own relationship to leaders and what they do in our name. Up for our consideration are the many-sided issues of deference, complicity, or abdication that define the fluid relationship between citizens and leaders, which is to say representative democracy itself. Recognizing the parameters of constitutional character is an important way to grapple with our own situation, to distinguish opportunism from opportunity.
Rather than a sharp pre-established line here, we Americans have a traditional principle to guide civic judgment. It is worth remembering and worth carrying into the debate.
The way the President can prove himself worthy of deference, and the way we may defer to him without abdicating the powers the Constitution allows us, is if the President himself insists that we hold him responsible. In calling for our judgment, the President must insist that we defer not to the authority of his office but to the appropriateness of his acts.
You may ask, What person with such power would ever do that? and our recent history may make you laugh, or cry, at this idea. Indeed, when principle fails, the corrupt Executive does not dedicate himself to such public rituals of responsibility and may even seek to evade them. Then the Citizen can demand the opposite, for example in the forms of recall or, as Jeffrey Tulis has argued, impeachment.
By then, however, things have left the domain of constitutional character. That is why the First Citizen or primus inter pares--for that, and not "Commander-in-Chief," is the proper name for our constitutional executive--must demand it of himself.
In an important sense, the question concerning military intervention in Syria that President Obama has brought before the American people raises this authority-enhancing and responsibility-taking demand that we confirm the appropriateness of his acts. This is unexpected because it stands in sharp contrast to what happened in the past decade, when neither Dick Cheney nor George W. Bush ever offered themselves for impeachment or any other sort of judgment when no "weapons of mass destruction" were found in Iraq.
Nonetheless, no matter how he may be different from his predecessors Barack Obama also falls short. This is because constitutional character and democratic power require not only that we hold our agents accountable, but that under certain circumstances they present themselves to us for that purpose. The key to this view of democratic government is how it foresees two phases of Executive action. The history of this idea - which stood as common sense at the outset of the American republic - tells us why.
Congress had barely opened its doors for business when in 1793 Representative William Findley acknowledged that any person charged with administration--"an executive officer,...the general of an army or the admiral of a fleet, and, though more rarely, even a financier"--could by terrible necessity "be induced to depart from the authorized path of duty." The statements of Representative James Madison Broom sixteen years later show the continuity of this view over a generation: "there may be circumstances under which it might be the duty of a public officer to depart from the laws."
Findley stood for the Anti-Administration and Republican parties; Broom opposed him as a Federalist. Thus, when Thomas Jefferson wrote similar words it is fair to take him as exemplifying the widely held understanding of that time:
A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation...
...and Jefferson certainly understood that there could be circumstances that constituted....
...a law of necessity and self-preservation, and rendered the salus populi supreme over the written law.
Such bold assertion will seem entirely familiar to you after September 11th. Yet its real meaning is utterly foreign to us today. For the validity of an appeal to the well-being of the People (salus populi) over the deliberated mandate of the legislature required, in Jefferson's view, a second phase of action. Thus, Jefferson augments his principle as follows:
The officer who is called to act on this superior ground, does indeed risk himself on the controlling powers of the constitution, and his station makes it his duty to incur that risk.... The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.
Quoted here is a letter of September 20th, 1810, addressed to John B. Colvin, a well-placed pamphleteer for the Republican cause. Jefferson knew that in writing to Colvin his initially private words would find a broader public.
It is important that this tone resonates in many of Jefferson's writings. It is also important that the proposition he articulates here may also be found in the speeches of his Republican colleague, the representative from Massachusetts Barnabas Bidwell. Bidwell is later recorded in the Annals of Congress (vol. 16, page 516) as declaring that an officer might have to engage in "acts not provided for by any law" and that "in such a case he must act under a high responsibility, and throw himself upon the justice of his country." Jefferson often reflected what he heard spoken or had read in a contemporary newspaper like the National Intelligencer.
The point is that this view was not a partisan one. It was and is a fundamental idea about constitutional power. In the words of constitutional scholar Lucius Wilmerding, it was a principle "accepted by every single one of our early statesmen."
The principle of two phases for responsible and democratic presidential action thus contains several intertwined elements. It begins by acknowledging that not only fabricated emergencies like Bush and Cheney's version of Iraq come before us. It continues by insisting that the officer who, due to emergency, must step outside the law must also "take the responsibility upon himself." It concludes with the insight that such an officer had better "embrace the earliest opportunity to explain the matter and obtain a justification whilst the recent feeling arising from the occasion advocates his cause in the public mind" (this again from Findley in 1793).
In Jefferson's understanding this second phase of public truth telling, recognition, and responsibility was fit for all sorts of exigent situations, not only military action. The event through which that great President had almost unimaginable impact on the future of the United States--the Louisiana Purchase--was also conceived by him in just this way. "The executive," he wrote, "in seizing the fugitive occurrence, which so much advances the good of their country, has done an act beyond the Constitution," and the legislature, too, risking "themselves like faithful servants, must ratify and pay for it, and throw themselves upon their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it." This, Jefferson continued,
is the case of the guardian, investing the money of its ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good; I pretend to no right to bind you; you may disavow me and I must get out of the scrape as I can.
To this plea and justification Jefferson adds a most eloquent description of high political motive, one almost unimaginable to us today:
I thought it my duty to risk myself for you.
In other words, the most perspicuous Founders knew perfectly well that however much one may be obliged to act according to the "law of necessity," it is no law. Yet emergency, that "fugitive occurrence," must always, in some sense, be accommodated.
It is therefore the accommodation rather than the emergency that must be brought within the constitution. And--because the constitution is a political distillation of the general sociological fact that all action is distributed through networks of human interdependence--necessity must also be fit within the everyday "division of action." The Founders had a relatively clear and common sense way to obtain this Stoic posture. Their two-phase approach to democratic responsibility was based on the occasional fact of exigency and the oldest maxim of human justice: no one may judge his or her own case.
There are today some moments in which the President may be forced by necessity to stand alone. When that happens some other agency--perhaps the legislature, perhaps the people, but certainly not the President himself--must determine after the fact if the correct action was taken. This additional moment of judgment cannot be accomplished without deference, humility, or even acquiescence--not on the part of the Citizen but on the part of the Executive. Since the middle of the twentieth century this second critical phase has often been ignored or evaded, blocked by a spreading pathology of undivided action and the systemic hubris of office cultured within America's persistent "civic war."
Against this background, President Obama's call for a vote in Congress, seeking the agreement and support of another branch of government and the alignment, at least through our representatives, of the American people came as a surprise. He announced clearly that....
...having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I'm also mindful that I'm the President of the world's oldest constitutional democracy. I have long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people. And that's why I've made a second decision: I will seek authorization for the use of force from the American people's representatives in Congress.
Is President Obama right? Is authorization for the use of force by Congress what "government of the people, by the people, and for the people" requires? Is this an example of high constitutional character and Jeffersonian responsibility?
At first sight it appears that way. What I want you to see, however, is that this is a mistake. The President is offering a glass half empty.
President Obama says that our "country will be stronger" if Congress debates the issue of intervention in Syria. He says that "our actions will be even more effective" as a result. He may well be right. Nonetheless, it does not follow from this that "it is the right thing to do for our democracy." In adding this claim he is wrong and misleads us.
This is important because this President insists further that he has "the authority to carry out this military action without specific congressional authorization." For the Citizen, this is the real issue where democracy needs to be tested.
No such constitutional test occurs when the President calls for the complicity of Congress in this momentous decision. If the President's position is affirmed, it will merely show what happens when various powers align. This has no more effect on "checks and balances" than the infamous "dog who didn't bark." Moreover, such alignment has the practical effect of making demands for responsibility superfluous. Indeed, under the exhilarating facade of consensus and unity Obama diffuses the question of democratic responsibility and increases the chances that he will evade it.
Yet, as the President rightly says, war is an "issue too big for business as usual." At the verge of war, in the thick of it, democracy and the dignity of the Citizen are best affirmed when the President speaks another way. It is not enough to hear him say "I seek your agreement." We must also hear "I thought it my duty to risk myself for you." Or even more precisely something like this:
My fellow citizens, I recognize that you were burned before with false intelligence that carried us into despicable and self-destructive wars; even so, what I know now about Syria requires that the United States act for them and above all for us; my deep and experienced judgment and my love of American democracy demand the same; when our heroic soldiers have achieved my initial and well-defined goals, the truth of the cause and the benefits of the outcome will be clear for all to see; if then you judge that I was right, you will support me further; if instead you judge that I was wrong, I will take responsibility as my own, resign my office, and relinquish my powers.
On the matter of Syria, Obama does not accept or embrace any such risk. He evades it. He shifts it one way to the international community and the other way onto us. However important a debate that affirms or denies the proposed intervention, it counts little for democracy when compared to our effective judgment on the result.
[Loosely adapted from my book Civic War and the Corruption of the Citizen]